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Establishing Religious Freedom

The just-concluded Supreme Court term might be seen as a project of constitutional restoration, especially in the area of religious liberty. In Kennedy v. Bremerton School District, the Court held that a public school district cannot hide behind the Establishment Clause when punishing a football coach for praying after a football game. Earlier, in Carson v. Makin, the Court ruled that a state cannot discriminatorily exclude religious schools from a public tuition assistance program generally available to all other schools. In both cases, the Court refused to allow a falsely inflated Establishment Clause to deny the religious freedom guaranteed by the First Amendment.

This Court appears not only to be restoring the First Amendment to its intended meaning but also restoring the Court as an institution to its constitutionally proper role. As in Dobbs v. Jackson Women’s Health Organization, where the Court removed itself from creating unwritten abortion rights that supersede democratically determined judgment on the issue, the Kennedy Court withdrew the judiciary from its long practice of adjudicating every minute interaction between religion and government. The role of the Court, as articulated in Kennedy, is not to dictate the role of religion in society.

After decades of constitutionally unjustified intrusion into American social and cultural life, the Supreme Court is now backing away to the more limited role envisioned by the framers. Under the American constitutional scheme, the Court should not be the religious regulator of society, just as it should not be the final arbiter of deeply controversial moral questions like abortion. After Kennedy, the Court will no longer adjudicate every instance where an individual, speaking in a private capacity, utters a religious message on public property or while employed by a public entity.

For the past sixty years, the progressive left has used the courts to enforce its vision of how society ought to look and function. Indeed, the left became so accustomed to convincing the courts to follow its social and cultural agenda that it has come to see the judiciary as its institutional agent, ready and willing to issue mandates that could not otherwise be accomplished through the democratic process. Thankfully and rightfully, the present Court has withdrawn itself from being used as such an agent.

If the Court in Kennedy did nothing more than to reinforce the message of Dobbs that the judiciary was retreating from any role as all-powerful cultural regulator, it would have accomplished a momentous goal. But it did more than that. It provided what may be a most clarifying statement of Establishment Clause jurisprudence.

The one point on which all constitutional scholars agree is that the Court’s Establishment Clause jurisprudence had been a confusing and conflicting muddle. So many different tests have been articulated and applied over the years that no one ever knows which test will be used in any one case. Moreover, the array of existing tests means that there is always a test for any desired result. Nothing captures this confusion like the release—on the same day in 2005—of two decisions on public displays of the Ten Commandments. The Court decided the cases differently, using two different tests.

Not only do an array of different and often contradictory tests exist, but over time the Court has applied those tests to virtually any interaction involving government and religion, such that a “jurisprudence of minutia” has evolved, in which even minute and momentary interactions rise to the level of government establishments of religion. Each new Supreme Court case involving the Establishment Clause offers the hope that jurisprudential clarity might finally arrive. With Kennedy, that hope may finally have been fulfilled.

Over the years, the endorsement test has become a dissenter’s veto, using the Establishment Clause to prohibit any government interaction with religion that a “reasonable observer” might oppose.

In Kennedy, the school district fired Coach Joseph Kennedy for kneeling at midfield after football games to offer a quiet personal prayer. The dissent disagreed with the majority’s description of the controversy, arguing that the record demonstrated that Coach Kennedy’s recent practice of leading student athletes in prayer caused disruptions in school programs. However, this dispute regarding the record may not have mattered, since the dissent also objected to the Court’s overruling of Establishment Clause precedent set in Lemon v. Kurtzman, which may well have dictated the Court’s decision regardless of disagreements about the record. 

The school defended its action on Establishment Clause grounds. In previous cases, the endorsement test had precluded government entities and their employees or agents from acting in a way that a reasonable observer might conclude endorsed a religion. In other cases, under the coercion test, prayers recited even by private persons at government-sponsored events were held to be improper establishments because they might coerce observers at those events into participating in an unwanted religious exercise. Such was the result announced in Santa Fe Independent School District v. Doe, where a religious message given by a student before a high school football game was found to be coercive, and hence violative of the Establishment Clause. Similarly, in Lee v. Weisman, a short prayer given by a rabbi at a high school commencement in an overwhelmingly Christian community was found to be an unconstitutional establishment.

Over the years, the endorsement test has become a dissenter’s veto, using the Establishment Clause to prohibit any government interaction with religion that a “reasonable observer” might oppose. And the coercion test has been applied without ever determining precisely whether any actual coercion existed. Under both tests, the Establishment Clause became a judicially recognized secular veto that could be wielded by anyone wishing to eliminate religion from the public square.

Justice Gorsuch, writing for the Court in Kennedy, suggested that the Court would no longer tolerate such an expansive Establishment Clause; it would no longer tolerate the Establishment Clause being used to censor private religious speech. Gorsuch indicated that the endorsement test would no longer be used, and that the coercion test would be confined to cases where religious coercion was actually proved, rather than presumed. Reading between the lines of Gorsuch’s opinion, the Court intends to return to the original purpose of the Establishment Clause—to apply it to instances where the government is creating some institutional link or connection between itself and religion. This amounts to a major development in Establishment Clause jurisprudence, one that Justices Rehnquist and Scalia began advocating in the 1980s.

As envisioned by the framers, who were reacting against the oppressive establishment of the Anglican Church in England, the Kennedy Court may have finally dismissed the jurisprudence of minutia that has long characterized the Court’s approach to the Establishment Clause, and that has pulled the courts into the most trivial and momentary interaction between government and religion from cross monuments to Christmas crèche displays.

Instead of creating yet another Establishment Clause test that would only further muddle the jurisprudence, the Kennedy Court actually did away with a number of tests that had proved most troublesome over the years, stating its preference to rely more on the constitutional history and intent of the Clause.

The endorsement test, as articulated by Justice O’Connor in County of Allegheny v. ACLU, was meant to be more accommodative of religion than was the earlier and more hostile Lemon test. But it soon became a tool to expand the Establishment Clause to the point of restricting religious exercise and expression. Liberal justices argued that the Establishment Clause served to prevent the divisiveness that might be caused by any government interaction with religion, despite the centuries-long history of such interactions within American society and politics. Divisiveness caused by such issues as race and gender and political ideologies was permissible, but divisiveness caused by religion was unconstitutional. This approach clearly sought to marginalize religion and eject it from the public square; and the endorsement test provided a dissenter’s veto that could accomplish such ejection.

Of course, religion is divisive. Any strong, deeply-held set of beliefs is potentially divisive—and the framers knew this. They had no intention of sterilizing the public square from the oldest set of human beliefs. What they intended was to prevent the new federal government from replicating what had occurred in England—a governmental institutional preference for one religion to the discriminatory disadvantage of all other religions. But the left saw the Establishment Clause a half-century ago as a tool to try to secularize American society.

Ever since the Court’s 1947 decision in Everson v. Board of Education, in which the Court wrongly used the phrase “wall of separation” between church and state as expressing the meaning of the Establishment Clause, the secular left has used the courts to try to isolate religion from the rest of society. Despite the long history of religion’s presence in the public square, the left argued that the Establishment Clause prohibited government from even granting to religious groups and persons the same recognition or benefits it gave to the rest of society. In this way, the judiciary became the constant regulator of the role and presence of religion in American public life. In Kennedy, the Court has taken a big step in putting an end to this intrusive and improper role of the Court.

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