The Supreme Court delivered another huge win for religious liberty today, further closing the garbage lid on the mistaken notion that government must be actively hostile to expressions of faith.
The court’s six-member majority completely abandoned the 1971 Lemon v. Kurtzman Supreme Court ruling on the subject. Lemon had invented a three-part “test” for public religious expression that effectively disfavored religion. The so-called Lemon test was itself a lemon that deserved to be squeezed out of existence.
This case involved Washington state public high school football coach Joseph Kennedy, who for years had prayed silently and alone at midfield after every game. Only when the school suddenly ordered him to stop, making the act a public controversy, did players, usually from both teams, begin to join Kennedy in his prayers — and then only voluntarily.
When Kennedy refused to stop praying after games, the school fired him. He sued.
Setting aside the particulars of this case, the larger question was whether the majority would do as suggested by six former U.S. attorneys general and throw out Lemon entirely. To do so would be an essential part of rejecting the nonhistorical, factually incorrect myth that the Constitution erects a nearly insurmountable “wall of separation” between government and religion.
The question is not merely academic. As long as the Supreme Court pretends that it is merely “distinguishing” a religious liberty case from Lemon rather than overruling it, schools and other government entities, not to mention liberal lower-court judges, will continue to implement erroneous, anti-religion policies and decisions by citing the Lemon edict as justification.
Justice Neil Gorsuch, writing for the majority, argued that through a host of other cases exist in which the court found ways to work around Lemon’s precedent, “this court long ago abandoned Lemon.” Yet after offering a litany of reasons why Lemon has been a disaster, Gorsuch moved on in a way suggesting that Lemon already was dead rather than explicitly killing it.
Those wanting something more explicit found it, interestingly enough, in Justice Sonia Sotomayor’s dissent. Sotomayor and her two fellow Supreme Court liberals spent one section defending Lemon, but they twice acknowledged that today’s decision “overrules Lemon” and once that it “completely repudiates” it.
Instead of Lemon’s court-invented three-part test, then, Gorsuch and his five colleagues offer an empirical analysis of historical practices and understandings as a way to judge whether a government entity has violated the First Amendment by becoming too enmeshed in promoting religion. That is exactly as it should be. The original public meaning of the First Amendment, Gorsuch explained, “counsel[s] mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
Today’s decision in Kennedy v. Bremerton School District is legally on target because it correctly interprets the actual meaning of the Constitution. And that actual meaning is morally and ethically sound, as Gorsuch explained. Quoting a line from yet another court decision, Gorsuch wrote: “Learning to tolerate speech of prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” He also noted: “Respect for religious expressions is indispensable to life in a free and diverse republic.”
An assistant coach’s noncoercive prayer, during a postgame interlude in which school policy otherwise offers him some free moments, burdens nobody. And his constitutional right to free exercise of religion merits respect. From the sour situation of Kennedy’s wrongful job loss, the Supreme Court just made lemonade.