Prayer on the 50-yard line: Supreme Court reshapes church-state relationship

In what continues to be one of the most consequential Supreme Court terms in United States history, the nation’s highest court on Monday once again redefined the meaning of the First Amendment and its dual clauses about the proper place of religion in America. 

In the last of three religious freedom cases decided this term, the Supreme Court ruled 6-3 in favor of a Washington high school football coach who was fired after continuing to pray at the 50 yard line after games. The school district said the coach’s prayers violated its policies, rooted in a concern that such a high-profile, public prayer by a public employee would entangle the district with religion. 

But echoing views that have been emerging on the Supreme Court for over a decade, Monday’s ruling argued that the school district’s actions did not constitute a proper concern for the separation of church and state: They in fact discriminated against people of faith.  

“Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech,” wrote Justice Neil Gorsuch in a 6-3 decision in the case, Kennedy v. Bremerton School District. “The Constitution neither mandates nor tolerates that kind of discrimination.”

For conservatives, the Supreme Court, now dominated by the most religion-friendly justices in nearly 75 years, experts say, this term’s three cases have continued to restore the full force of the First Amendment’s protections of the free exercise of religion, even as liberal critics contend that the establishment clause, understood to place a wall of separation between church and state, is quickly losing its meaning.

“As Justice Sotomayor observed, we’ve gone even beyond the place that separation of church and state has been reduced to a slogan,” says Mary Anne Case, a professor at the University of Chicago School of Law, calling the establishment clause “dead.” “Things that used to be seen as establishment clause violations now seem to be free exercise mandates. I’m not sure how the judges in the majority see the separation of church and state, at least if that church is a Christian one.”

Flags, funding, and the playing field

There have been points of agreement, however. In May, a unanimous court agreed that the city of Boston discriminated against a conservative religious group when it refused to allow it to fly a Christian flag commonly displayed by many Evangelical Christians, even as it allowed the flags of a host of other groups and perspectives. Boston’s flag-raising program clearly did not express government speech, wrote Justice Stephen Breyer in the 9-0 decision. “As a result, the city’s refusal to let (the group) fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.” 

But the unanimity in which this case was dispatched was short lived. Last week in Carson v. Makin, the sharp ideological divisions between the Supreme Court’s six conservatives and three liberals were once again on full display in a decision that required Maine to include religious schools in a taxpayer-funded tuition assistance program. “Maine’s decision to continue excluding religious schools from its tuition assistance program ... promotes stricter separation of church and state than the Federal Constitution requires,” wrote Chief Justice John Roberts in a 6-3 decision. 

In her dissent in Monday’s Kennedy case, Justice Sonia Sotomayor returned to observations she’s made in similar cases. The Supreme Court “has consistently recognized that school officials leading prayer is constitutionally impermissible,” she wrote in a dissent joined by Justices Breyer and Elena Kagan. Monday’s ruling “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.”

Free exercise and the Roberts court

When compared to previous eras in the Supreme Court’s history, the Roberts court stands out for its emphasis on the free exercise of religion and its general skepticism of efforts to maintain a wall of separation between church and state, according to a forthcoming study by the legal scholars Lee Epstein and Eric Posner. 

During the era of Chief Justice Earl Warren in the 1950s and 1960s, for example, they found the nation’s highest court issued pro-religion decisions 46% of the time in relevant First Amendment cases. The court headed by Justice Warren Burger through 1986 issued pro-free exercise decisions in 51% of its cases, and the court of Justice William Rehnquist favored religion 58% of the time.

Since 2005, however, the Roberts court has issued pro-free exercise decisions in nearly 87% of the cases it’s heard. And at the same time, it has redefined the court’s precedents concerning the establishment clause and the separation of church and state.

For many conservative scholars, the Roberts court is aiming to restore the principle of government neutrality toward religion, correcting what it continues to perceive as discrimination against religion.

“I would say this general trend towards neutrality is the touchstone, the core principle of the First Amendment’s religion clauses, and it predates by many years ... the Roberts court,” says Nicole Stelle Garnett, professor at Notre Dame Law School and former clerk to Justice Clarence Thomas.

“So in a sense, the court does appear to be taking more cases to apply this principle than previous courts,” she says. “But I don’t see that it’s more pro-religion than previous courts. I think that trend toward demanding government neutrality towards religion began in earnest in the Rehnquist court.”

But for many liberal scholars, this emphasis on the free exercise clause has in fact been far from neutral. Like all three cases this term and most of the cases during the Roberts era, the court’s decisions have focused nearly exclusively on a specific religious point of view.

“The Burger Court got free exercise claims mostly from a variety of religions that nobody had really heard of until they went to court,” says Mark Graber, professor of law at the University of Maryland’s Carey School of Law in Baltimore. Other decisions before the Roberts era, too, included “Native Americans who used peyote, Seventh Day Adventists who didn’t want to work on Saturday, the Amish – not religions that could be said to exercise any political power.”

“What is winning with the Roberts court, especially this term, are white Evangelicals, who are crucial members of the Republican coalition,” he says. “Christian Republicans in Maine just got their religious schools paid for. But again, in how many of these cases has this court protected the freedom of religion for a group that isn’t associated with the Republican Party?”

In Monday’s decision, the court’s conservative majority also dismantled a traditional test that has served as an analytical framework for establishment clause cases. The so-called “Lemon test,” which since 1971 has been used to determine whether the government is violating the establishment clause, held that government conduct must have a secular purpose, must not advance or inhibit religion, and should not foster an excessive government entanglement with religion.

Justice Breyer relied in part on the Lemon test in the 9-0 decision that declared Boston’s flag program a violation of the free-speech rights of the Evangelical group that wanted to fly a Christian flag in front of City Hall. But that “endorsement”-based test is now gone, the Supreme Court said today – and, the majority claimed, it has been gone for some time.

“This court long ago abandoned Lemon and its endorsement-test offshoot,” Justice Gorsuch wrote, citing opinions dating as recently as 2019 back to roughly 1990. Despite that assertion, the Supreme Court had never formally overturned the Lemon test, including in that recent 2019 decision, which determined that a 40-foot cross could be considered a secular symbol.

In its ruling on Monday in Kennedy, the court explains that the Lemon test is being replaced – and it’s being replaced with what is becoming a popular focus for this Supreme Court: history.

Now the establishment clause “must be interpreted by ‘reference to historical practices and understandings,’” wrote Justice Gorsuch.

“The court says it’s not adopting a new test, but rather making clear that history and tradition ought to be the guideposts for determining what the Establishment Clause prohibits,” says Professor Garnett, in an email. “I think it’s fair to say that the application of this ‘history and tradition’ / ‘coercion’ test in public schools is something new, and I predict that it will take time for courts to figure out how [it] works.”

This historical test will allow governments a lot more leeway to allow religious exercise when it comes to establishment clause issues, says Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.

“Where the court once tried to assess whether there is excessive entanglement in religion, now it seems to be whether there is an actual endorsement of religion,” he says. “That’s an important distinction, and it’s a far more conservative point of view. You certainly could have excessive entanglement without those who are sponsoring legislation or allowing practices believing that it somehow endorsed a religion.”

“This distinction goes to the intent of government officials, when in fact it probably should go to the actual impact,” Dr. Paulson says.

For critics, the Roberts court has again and again expressed concern about government discrimination against a person’s “religious status,” but little concern about the “religious use” of the taxpayer dollars that must now be given to religious schools, like those in Maine, that exclude LGBTQ employees and students from their ranks.

In her dissent in Kennedy, Justice Sotomayor said the majority decision ignored the impact of religious coercion when a highly visible public employee led his team in prayer in front of a crowd of people. 

“The play in the joints”

And in his dissenting opinion in Carson, Justice Breyer said the conservative majority was paying almost no attention to the establishment clause while giving almost exclusive attention to the free exercise clause, adding that it also “fails to recognize the ‘play in the joints’ between the two Clauses.”

The expression, which first emerged in a Supreme Court opinion by Chief Justice Burger and was later echoed by Chief Justice Rehnquist, gave states some room to address establishment concerns, even when it involved curtailing certain religious expressions. But this “play in the joints” has become more and more rigid, and more protective of religion than a separation of church and state, critics of the Roberts court say. 

“There’s no play in the joints left. They’re mandating what used to be seen as problematic,” says Professor Case. “And when I say ‘used to,’ I don’t mean just in the last 50-100 years of jurisprudence – I’m talking about the Framers.”

Five years ago, in Trinity Lutheran v. Comer, the court ruled that Missouri could not exclude a church daycare from a public grant program for nonprofits. And two years ago, in Espinoza v. Montana, the court said that private religious schools could not be excluded from a Montana tax credit program simply because they were religious. Chief Justice Roberts called these “‘unremarkable” principles that justified his majority opinion in Carson. 

In her dissent, however, Justice Sotomayor wrote that “[the] court for many decades understood the establishment clause to prohibit government from funding religious exercise.” The ruling in Trinity Lutheran, “veered sharply away from that understanding,” she added. And with its ruling in Carson, “the court leads us to a place where the separation of church and state becomes a constitutional violation.”

Justice Breyer echoed those concerns, worrying that when the religion clauses are interpreted too rigidly, as if separated by clear, bright lines, this could have severe consequences. When the government promotes religion in its public school system, he wrote, there is “increased risk of religiously based social conflict.”

“We are today a nation with well over 100 different religious groups,” he wrote. “And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division.”

What prayers are welcome on the 50-yard line?

Leaders of other faith traditions echoed that concern Monday.

“Although we strongly believe that public school employees have the right to pray and visibly practice their faith in many circumstances, we are concerned that schools will not extend this right equally to employees of all faiths and that some students may feel coerced to participate in certain acts of worship,” said Edward Ahmed Mitchell, deputy director of the Council on American-Islamic Relations.

Mr. Mitchell said that today’s ruling would mean that, for example, a Muslim coach observing Ramadan would have the right to pray on the field after breaking their fast.

“Public schools implementing this ruling must ensure that all employees, including followers of minority faiths, receive equal treatment for similar acts of devotion and that their religious observances do not directly or indirectly coerce students to participate.”