It is rare when six former attorneys general of the United States ask the Supreme Court to override a long-standing court precedent. For the worthy cause of free religious exercise, six have forcefully done so now.
The attorneys general involved include Jeff Sessions and Matthew Whitaker from the Trump administration, Alberto Gonzales and Michael Mukasey from the G.W. Bush administration, Ed Meese from the Reagan administration, and William Barr of both the G.H.W. Bush administration and the Trump administration. They all joined a friend-of-the-court brief to argue a high school coach who led voluntary prayers after football games should not have been found in violation of constitutional provisions supposedly “separating” church from state.
In doing so, the six former top law enforcement officers of the land don’t merely argue existing precedent does not forbid conduct such as this particular coach’s prayers — although they do say that. They also contend the precedential case itself, Lemon v. Kurtzman from 1971, was wrongly decided and should be overturned.
The case revolves around (former) assistant coach Joe Kennedy of Bremerton High School in Washington state. For seven years, he made a habit of quietly praying on the field for 15-30 seconds after each game. He never asked players to join him, but after a while, they asked him if they could. He said, “It’s a free country,” and students at their discretion sometimes did and sometimes didn’t. Yet, when an employee of another school raised questions about the practice, Bremerton demanded Kennedy stop praying after games either with or without the students. When he continued praying alone, he was suspended and, eventually, lost his job.
After lower courts ruled against the coach, the Supreme Court in January agreed to accept Kennedy’s case on appeal, probably later this spring. A plethora of legal foundations, state attorneys general, and former professional football players have filed briefs in Kennedy’s favor — but the one from the six former U.S. attorneys general filed on March 2 is probably the most noteworthy.
Saying the Lemon case essentially (and wrongly) set up a “strict wall of separation between church and state,” the six U.S. attorneys general note the high court has repeatedly eroded Lemon’s wall but never renounced it.
Sessions and the others argue the constitutional clause outlawing an “establishment of religion” is applicable only when a government compels a religious practice, not when such practice is voluntary — and certainly not when an assistant coach, acting as a private citizen, chooses to pray on his own.
Yet, the attorneys general don’t stop there. Instead, they tell the high court that “Lemon is a fatally flawed decision that should have no place in Establishment Clause jurisprudence.” They agree with an earlier dissenting opinion by the late Justice Potter Stewart that “the ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
Indeed, they write, the “strict separation” myth “can weaponize a [wrong] interpretation of the Establishment Clause” in a way that can “squelch” the other, overarchingly important part of the First Amendment — the part that guarantees the “free exercise” of religion. This mistakenly “expansive view of the Establishment Clause,” they say, is “pernicious” because it makes even personal religious practice disfavored by the government.
“Coach Kennedy did nothing wrong — let alone unconstitutional,” the attorneys general write.
They are correct, and the Supreme Court should rule accordingly.
