By any measure, we have witnessed a historic Supreme Court term. In the case of New York Rifle and Pistol Association v. Bruen, the justices handed down a major decision on the Second Amendment, further securing the individual right to possess a gun for self-defense. And no case was bigger than Dobbs v. Jackson Women’s Health Organization, which on Friday overturned the court’s foundational abortion precedents of Roe v. Wade and Planned Parenthood v. Casey. In so doing, the justices gave up their power over the contentious abortion issue, returning it to the people and their representatives to decide.
In addition, the court created important precedents on the subject of religious liberty. Last week, the court decided Carson v. Makin, rightly requiring states that provide benefits to private entities to treat religious and nonreligious parties alike. On Monday, the court followed up this victory for religious liberty with another: Kennedy v. Bremerton School District.
The case concerned Joseph Kennedy, formerly a high school assistant football coach who lost his job for praying at the 50-yard line after games. Kennedy had complied with school requests to stop making motivational speeches with religious content during this prayer time. He had agreed to discontinue a long-standing practice of praying with players in the locker room before competitions. He refused, however, the school’s requirement that he cease praying, even though he did so quietly and without requesting any player participation. The school expressed worry in all instances that Kennedy’s actions would violate the First Amendment’s establishment clause, which prohibits the government from “establishing” a religion. Kennedy sued, saying the school violated both his First Amendment right to free exercise of religion and his right to freedom of speech.
The court sided with Kennedy on both counts. The court’s reading of the free exercise clause demands that government policies treat religious expression in a “neutral” manner and as part of a “generally applicable” rule. The school district failed on both counts.
First, it failed the neutrality requirement because the school admitted that it prohibited Kennedy’s prayer because of its religious nature. Second, the district ran afoul of general applicability. It claimed it punished Kennedy in part because he neglected his duties to the student-athletes after games in order to pray. Yet the court pointed out that other coaches could stop their supervision to do nonreligious activities such as speak with friends or answer non-work-related phone calls. Thus, the rules did not generally apply to religious and nonreligious actions.
The court said that the school also violated Kennedy’s right to free speech. The majority understood that Kennedy was an employee of a public school and thus of the state. When speaking as part of his official duties, the school could impose restrictions on what he said because his speech was government speech. Such actions certainly had implications for the establishment clause. Yet, employment by the state did not eliminate constitutional rights, including speech. Indeed, persons such as Kennedy retained that right as private citizens even when coaching. Here, the court concluded that Kennedy prayed as a private citizen and the prayer did not comprise part of his official coaching duties (nor were his prayers directed toward his players). The prayers, moreover, occurred at a time when coaches could attend to personal matters. Thus, the free speech clause protected these prayers against government prohibition.
In this decision as well as Makin, the justices have made significant steps toward two needed ends. For one, they moved toward making a coherent jurisprudence for the First Amendment religion clauses. The court’s past rulings on the relationship between the establishment and free exercise clauses have been confusing at best, and incoherent at worst. These decisions clarify that the establishment clause rejects the uniting of church and state. It does not deny any public, much less private, place for religious liberty.
For another, these cases continued the court’s strengthening of protections for religious liberty. For years, the court consistently has sided with believers’ claims to live and act according to their faith. As our society becomes more secular in composition, such constitutional protections only increase in their importance.
Adam Carrington is an associate professor of politics at Hillsdale College.
