Supreme Court Majority Virtually Erases Establishment Clause from First Amendment: Coach Kennedy Case

The Majority Misstate the Facts on Coach Kennedy and Abandon a Workable Establishment Clause Test for a Nearly Unworkable One.

The conservative Supreme Court majority misstates or ignores history and facts and has written an opinion effectively removing the Establishment Clause from the First Amendment in the public school context. They are using the Free Exercise Clause to trump the Establishment Clause when prior precedents required equal examination of both and recognition of the tension between the two clauses of the First Amendment.

The Pilgrims came to America on the Mayflower to enjoy freedom of conscience when they rejected tenets of the Church of England. Similarly, the Puritans and the Quakers came to America also to escape religious intolerance in England. All three rejected the Establishment of the Church of England.

Now comes the Conservative Right-Wing Majority of the Supreme Court and in the Coach Kennedy case, where the public school teacher Coach insisted on saying prayers on the 50-yard line accompanied by both football teams and the public, they say that they need to decide the case based on history and traditions. But then the Majority completely ignore history and traditions and only selectively reference Supreme Court past decisions they like. They give excessive importance to the Free Exercise Clause while giving little, if any, attention to the Establishment Clause.

Justice Gorsuch wrote the Majority Opinion in Kennedy v. Bremerton School District, __ U.S. ___ (Slip Op.), and as to the legal test for Establishment Clause claims or defenses he says that the Court is abandoning the test from the decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). Gorsuch describes the Lemon test as “an examination of a law’s purposes, effects and potential entanglement with religion” and “whether a ‘reasonable person’ would consider the government’s challenged action an ‘endorsement’ of religion.” He says the Court is overruling that test, having been used for several decades, and substituting a new test:

In 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” Town of Greece, 572 U.S., at 576; see also American Legion, 588 U.S. , at (plurality opinion) (slip op., at 25. “‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflect the understanding of the Founding Fathers.” Town of Greece, 572 U.S. at 577….

Now if Justice Gorsuch thinks he has replaced the Lemon test with a more understandable and constitutionally required Establishment Clause test, he has actually replaced a rational and reasonable Lemon test with an unworkable and historically indefinite alternative. Gorsuch tells us, with Originalist’s typical language, that we should look to the intent and meaning of the Founding Fathers to apply the Establishment Clause. Apparently, though Gorsuch has not done too much reading of Court history or extensive academic research on the original meaning of the Establishment Clause as he is taking us down a rabbit hole from which even Alice would have a hard time sorting out that history.

In separate opinions, Justice Thomas has claimed the Establishment Clause is primarily a federalism provision which prevents the national government, through Congress, from imposing a national religious establishment, but state establishments of one or more religions were permissible. Justice Rehnquist applies a non-preferential interpretation that prevents laws favoring one religion over others. Justice Souter applied a strict-separationist interpretation. If we follow Gorsuch and look to the Founding Fathers meaning and intent we will have a difficult time finding a common understanding, since, quite frankly, there is none. As a result of these differing Court opinions, academic historians, compared to judicial historians, have undertaken substantial research into the original meaning and intent of the Establishment Clause.

In 1785-86, the Virginia Legislature adopted Jefferson’s Virginia Statute for Religious Freedom, having been promoted by Madison. It got a majority as Baptists, Presbyterians and Methodists had petitioned for religious liberty and separation of church and state. Virginia Musuem of History and Culture. Jefferson’s Virginia Statute provided in Article II:

Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. “Thomas Jefferson and the Virginia Statute for Religious Freedom”, Virginia Museum of History and Culture.

Jefferson, while president, wrote a letter requested by the Danbury Baptist association in the state of Connecticut, signed on January 1, 1802, which stated,

Believing with you that religion is a matter which lies solely between Man and his God, that he owes to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. The Library of Congress, Information Bulletin, June 1988, Vol. 57, No. 6.

Another major contribution to understanding of the Founders intent in the Establishment Clause is found in James Madison’s “A Memorial and Remonstrance” dated 1785, which Madison wrote in response to a Bill sponsored by Governor Patrick Henry to use tax revenues “for Teachers of the Christian Religion.” The Memorial and Remonstrance was essentially a petition to be signed by citizens protesting against the proposed tax to pay “Teachers of the Christian Religion.” The Remonstrance has 15 paragraphs, but Paragraph 3 is of particular importance:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, my establish with the same ease any particular sect of Christians, in exclusion of all other Sects? [T]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to confirm to any other establishment in all cases whatsoever. “Memorial and Remonstrance against Religious Assessments”, Founders Online, The National Archives.

Gorsuch refers to the Memorial and Remonstrance but totally distorts its purpose and meaning, saying “That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framer’s distrust of government attempts to regulate religion and suppress dissent.” Kennedy, 597 U.S.___, slip op at 11. Gorsuch ignores the purpose of the Remonstrance to oppose taxation for Teachers of Christian Religion., and his citation is misleading at best as the Remonstrance was principally against any establishment of religion.

There were apparently only minimal recorded debates in the First Continental Congress on the First Amendment, but the historic record does show Madison had a role in drafting the House version, which was then modified by the Senate and a Joint Conference Committee adopted the language of the First Amendment as we know it.

The historic record is further complicated by the fact that a number of the original States had establishments of some religion at the state level, but most abolished those establishments either before or after adoption of the First Amendment, though Massachusetts retained its establishment of the Congregational Church for years after adoption of the First Amendment. This gives credence to Thomas’ argument that the Establishment Clause was principally a limit on the federal government with no application to the states. The historic record shows that there were many different positions on establishment of religion before and after adoption of the First Amendment, so Justice Gorsuch command that we should look to the views of the Framers is not terribly helpful when the Franers had so many different ideas.

The current meaning of the Establishment Clause really starts in the mid-Twentieth Century with the decision in Everson v. Board of Education of Ewing Twp., 330 U.S. 1 (1947), where Justice Black writing for the Court adopted the Jeffersonian wall of separation of church and state. Everson was a case challenging transportation reimbursements to parents sending their children to parochial Catholic schools. Justice Black wrote,

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever they adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” 330 U.S. at 18.

The Court upheld the New Jersey transportation subsidy to parents to send their children to public or parochial schools as a general program of transportation aid regardless of religion. Justice Rutledge dissented, agreeing that the Establishment Clause prohibited all forms of aid to religion, and unlike Black he was not willing to distinguish indirect aid to parents from direct subsidies of religious schools, so he claimed the transportation reimbursements aided religion and were unconstitutional.

Returning to Coach Kennedy, Justice Gorsuch told us to find an answer in the intent of the Founding Framers, but that journey is strewn with myriad and differing opinions. He then tells us to look to historical practices and understandings. But Gorsuch does not point to any such historical practices and understandings though he notes a rabbi being precluded from a commencement prayer or a player(s) initiating their own prayer which was held unconstitutional. So, what is the historical practice and understanding that Gorsuch wants us to consider about football coaches in public schools organizing prayers at the 50-yard line at the end of games? The only cases he cites for history strongly suggest that Coach Kennedy’s 50-yard line post-game prayers were violative of the Establishment Clause.

The next problem with Gorsuch’s Opinion is a major distortion of the facts of the case. Gorsuch noted that Coach Kennedy initially did quiet prayers at the fifty-yard line at the conclusion of football games, but over time some of the team and then nearly all of his team joined him and sometimes even the opposing team. He also conducted pre-game and post-game prayers in the locker room, but after the School District’s objection, he stopped that practice. The District being concerned about Establishment Clause violations, ordered him to limit his prayers to private areas not in general public view, but that was not acceptable to him. Coach Kennedy continued to press for the right to conduct joint prayers at the fifty-yard line at the immediate conclusion of games while parents, fans and even media were present. He even gave media interviews about his efforts and asked them to attend the forthcoming game. At the October 23 game, he started praying with the opposing team, and was then joined by members of the public who jumped onto the field as did news media with cameras and also his own team in a communal prayer event. Gorsuch states that none of Kennedy’s students participated in any prayers during any of the October 2015 games, though he admits that the Coach prayed together with players from the opposing team. Now can you believe that Coach’s own players would stand by and not participate when he was leading prayers with the opposing team: highly doubtful. And hopefully he was not just giving motivational speeches to the opposing team.

Gorsuch concludes his Opinion stating, “a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. The Court said Coach Kennedy’s termination was unconstitutional.

The old adage that a picture is worth a thousand words is particularly apt here. Justices Sotomayor, Breyer and Kagan dissented both as to the law but also to Justice Gorsuch’s distortion of the facts. In their dissent they included two pictures of Coach Kennedy engaging in his “brief, quiet, personal religious observance” one taken during one of the games and the second at the October 16 game where the Coach held prior media interviews to encourage people to come out and see his public prayers with the teams.

Justice Sotomayor says Justice Gorsuch “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 lead student athletes in prayer at the same time and location. The Court ignores this history.” Apparently, Justice Gorsuch ignored this history and traditions that he said were the new test of Establishment Clause violations.

As Justice Sotomayor points out, the Majority has negated the workable Lemon test with a nearly meaningless “history and tradition” test. So what if there is a history of Coach Kennedy conducting prayers on the 50-yard line and so what if he was allowed to conduct pre-game and post-game prayers in the locker room? Does Gorsuch think there are precedents of coaches wanting to make a spectacle of their communal prayer offerings with media crews and the public invited to participate as well as both teams? If there are appliable history and traditions Gorsuch has not cited any. Gorsuch says that Coach Kennedy lost his job for “praying quietly while his students were otherwise occupied.” The facts and photographs paint a different story.

Gorsuch fails to recognize the salient point that Coach Kennedy was a District employed school teacher, and he insisted on performing his communal prayer celebrations on the 50-yard line of the football field being school property. Also, he was on duty and responsible for conduct of his team until all left the field and locker room. Claiming that he was engaged in private speech is not credible when he was surrounded by his students and welcomed them in participating in his 50-yard line prayers. Coach was enunciating government speech as he insisted on saying his prayers in a very public and observed space, and he rejected the offer to allow him to pray in a private place away from football teams, fans, media and even political representatives. Kenedy claimed his prayers occurred on “his own time,” but he was on duty and responsible for the team.

Justice Sotomayor said the Establishment Clause cases and history means “[i]n the context of public schools, … that a State cannot use ‘its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” (slip op at 14) “The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” “Given the twin Establishment Clause concerns of endorsement and coercion, it is unsurprising that the Court has consistently held integrating prayer into public school activities to be unconstitutional, including when student participation is not a formal requirement or prayer is silent.” “Finally, this Court has held that including prayers in student football games is unconstitutional, even when delivered by students rather than staff and even when students themselves initiated the prayer.” Sotomayor, slip op at 15-16.

This seems to be the history and traditions that Gorsuch was searching for, but they clearly require a different result than the one the Majority reached. Perhaps the Lemon test is not so bad after all.

Sotomayor criticizes Gorsuch overruling Lemon and substituting history and traditions. She notes that the “Framers ‘defined rights in general terms to permit future evolution in their scope and meaning.’” There are also pitfalls in a “near-exclusive reliance on history” and the Court “has misread history in the past.” Inaccuracies are risked “when courts ‘play amateur historian.’” She observes “the Court’s history-and-tradition test offers essentially no guidance for school administrators.” The Court’s new test does not even work to achieve the result the Majority desires.

Justice Sotomayor concludes her dissent as follows:

Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation of church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance.

“Today’s decision is no victory for religious liberty.”

This is also a backdoor way for the Majority to further their possible effort to allow public school prayer, contrary to numerous precedents, as Coach Kennedy was a school teacher leading students in non-mandatory prayers on public school grounds and with the social pressure to please the Coach to obtain more playing time, get favorable positions, and obtain positive recommendations for scouting and college athletic scholarships.