Goodbye to the Establishment Clause


Six Justices of the Supreme Court have effectively deleted the Establishment Clause from the Constitution.

Today’s opinion, Kennedy v. Bremerton School District, allows a public school’s football coach to lead his players in public Christian prayer. The Establishment Clause also lost last week in Carson v. Makin. In Kennedy, Justice Neil Gorsuch’s opinion rejected the past Establishment Clause tests. In Carson, Chief Justice John Roberts concluded that the government must fund religious schools, even those that do not obey the antidiscrimination laws and are dedicated to teaching only their own religion.

Only the three dissenters, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, insisted that the government is not supposed to promote, practice, endorse, or coerce religion.

What does the Establishment Clause now hold? According to Gorsuch, “[i]n place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’”” Moreover, Gorsuch wrote there was no evidence of coercion of the students to pray.

Lemon, endorsement, and coercion were all part of the Court’s Establishment Clause jurisprudence.

Until today.

The majority’s new historical practice test is religion-friendly, as it allows a public-school coach to lead his students in prayer. That is consistent with last week’s decision allowing a religious school to get government money for teaching its students religious dogma.

The Old Tests

When I wrote on this website about the oral argument in Kennedy, I summarized the Court’s Establishment Clause standards as follows:

The Establishment Clause says “Congress shall make no law respecting an establishment of religion.” The Court’s Lemon v. Kurtzman decision says in order to survive establishment scrutiny, 1) the statute must have a secular purpose; 2) it can neither promote nor inhibit religion, and 3) there cannot be excessive government entanglement with religion. The Court has also ruled that the government may not endorse or coerce a particular religion.

Under those three tests, Coach Joseph Kennedy of Bremerton School District should lose, as the lower courts had ruled. Prayer is not secular. Period. It always endorses religion. Insisting on standing on the field post-game and allowing students to join you both endorses religion and coerces some students to join you. Do not forget about the students who felt that they would not be as welcome on the football team if they did not join this prayer session.

All the majority cared about was a victory for the coach’s free exercise and free speech rights. Establishment was dismissed.

The New Standard

How does the new Establishment Clause standard work?

The Facts

It seems to deny the facts. The first sentence of the opinion says Coach Kennedy “knelt at midfield after games to offer a quiet prayer of thanks.”

There was nothing quiet about his prayer, as the dissent’s pictures demonstrate:

Bremerton 2

This is not like an individual praying silently and alone over lunch in the cafeteria, as Gorsuch suggests it is.

The Establishment Clause applies to the government. The pictures in the opinion suggest Kennedy’s prayer was very public, and he was there in public because he was employed by the government as a public-school coach who is bound by the Establishment Clause. The majority, instead, characterizes Kennedy’s activities as a private citizen’s speech and exercise of religion. The opinion concludes, “Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor.” It is hard to see how prayer joined by one’s players and encouraged through contact with the media is private. If you turn government workers’ activities into private speech, there will not be much that the Establishment Clause protects.

The Bottom Line of the New Test

Religion wins. Lemon, endorsement, and coercion disappear, and public employees have their public work turned into private commitment. What remains of establishment?

The Dissent

Justice Sotomayor addresses the problems with the majority’s decision very directly, even citing recent cases to show that the majority’s arguments all lead to a bad conclusion. Ignoring precedent does not leave the Court in a strong or persuasive position. Note that Sotomayor explains that the majority “misconstrues the facts.” As she wrote:

The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. See Carson v. Makin, 596 U. S. ___, ___ (2022) (BREYER, J., dissenting) (slip op., at 1). To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. [emphasis added]

The majority misconstrues the law as well, she states, rejecting the valuable Lemon and endorsement tests in favor of “history and tradition.” Moreover, Sotomayor values the coercion test, which the Court has long used to protect students from government coercion. In the past, the Court acknowledged that students might be coerced if they were exposed to government prayer. Instead, the Court chose a “nearly toothless version of the coercion analysis,” refusing to protect students or to defend the separation of church and state.

The dissenters seek to protect that separation, while the majority does not. Sotomayor is correct that “Members of the current majority [] effect fundamental changes in this Court’s Religion Clauses jurisprudence, all the while proclaiming that nothing has changed at all.”

She also emphasizes the dangers of the history and tradition tests, as other recent decisions demonstrate:

It should not escape notice, however, that the effects of the majority’s new rule could be profound. The problems with elevating history and tradition over purpose and precedent are well documented. See Dobbs, 597 U.S., at ___ (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (slip op., at 16) (explaining that the Framers “defined rights in general terms to permit future evolution in their scope and meaning”); New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___, ___–___ (2022) (BREYER, J., dissenting) (slip op., at 24–28) (explaining the pitfalls of a “near-exclusive reliance on history” and offering examples of when this Court has “misread” history in the past); Brown v. Davenport, 596 U. S. ___, ___–___ (2022) (KAGAN, J., dissenting) (slip op., at 7–8) (noting the inaccuracies risked when courts “play amateur historian”).

The Court’s amateur historians “weaken[] the backstop” of the Establishment Clause. This will look to many readers like religious freedom has won again. Religion has won, but  “[a]s much as the Court protests otherwise, today’s decision is no victory for religious liberty.” The students’ religious liberty would have been protected by a decision enforcing separation of church and state. But in this case, and in Carson, as Professor Marci Hamilton pointed out in last week’s post, the students are forgotten.

And so is the Establishment Clause, which should have been present to protect everyone’s religious liberty, as the Founders wanted it to, instead of forgotten in order to protect a few people’s free exercise.

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