AMAC Exclusive – By Shane Harris
On Monday, in the latest of a string of landmark decisions, the Supreme Court ruled in Kennedy v. Bremerton School District that a high school football coach has a Constitutional right to pray on the field following his team’s games. While the ruling is undoubtedly a major victory for religious liberty, the reaction from the media and elected Democrats to the decision highlights the ever-growing hostility of the left toward religion, and underscores why the Founders were so careful to enshrine protections on the free exercise of religion in the Constitution.
In a 6-3 vote, with the Court’s three liberal members in dissent, a Gorsuch-led majority ruled that the prayers that Coach Joseph Kennedy of Bremerton High School in Washington State led after the team’s football games were protected by the First Amendment of the Constitution, and that the school district had erred in firing the coach as a result of the act. As held by the majority opinion, “Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s… The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” The Court also strongly rejected the school district’s argument that merely holding an optional post-game prayer amounts to coercing students to participate in a religious act, asserting that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’”
Conservatives justifiably celebrated Monday’s result as a milestone win for religious liberty, particularly after the Court has in recent decades acted to restrict and discourage public religious displays by any government entity through decisions like Lee v. Weisman (1992) and Lemon v. Kurtzman (1971). But thanks to three new conservative Justices appointed by former President Trump, the Court has now begun to move back toward an originalist interpretation of the Constitution’s protections for religious expression (the Kennedy verdict, notably, effectively overruled Lemon, which had long been selectively invoked by activist judges to strike down disfavored laws dealing with religion in schools).
In her dissent, Justice Sonia Sotomayor, joined by her liberal colleagues Elena Kagan and Stephen Breyer, argued that requiring public schools to allow employees to exhibit public displays of their religious faith “sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance.” Sotomayor characterized Coach Kennedy’s prayers as a “severe disruption to school events,” and maintained that the key question at stake in the case was “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.” For the three dissenting justices (and to the left generally) the answer to this question is no, as she argued that the government must remain neutral about religion.
The media predictably latched on to the dissent’s line of reasoning, insisting that the ruling amounted to a complete overhaul of the First Amendment. Following the release of the decision, Vox ran a headline that said, “The Supreme Court’s ‘praying coach’ decision rests on a bed of lies,” while one from Reuters read, “U.S. Supreme Court takes aim at separation of church and state.” The Washington Post similarly decried the Court for “eroding the wall between church and state” and Bloomberg declared “Supreme Court Un-Separates Church and State,” while Slate Magazine accused the Court of “let[ing] public schools coerce students into practicing Christianity” and “repealing separation of church and state.”
Those accusations reflect a now common refrain among the left that any perceived mixing of religion and government-funded activity (like a public school football game) is a violation of the “separation of church and state” and thus a violation of the First Amendment. However, these claims both ignore the plain text of the First Amendment itself and completely distort what the Founders had in mind when they wrote it.
As conservative legal scholars have repeatedly pointed out, the phrase “separation of church and state” is found nowhere in the Constitution, and is instead drawn from a line in a letter from Thomas Jefferson to the Danbury Baptist Association in 1802, in which he wrote: “I contemplate with sovereign 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.”
But Jefferson was not concerned about preventing religion from influencing the government. Rather, his concern – and that of the other Founders – was with the government influencing the free exercise of religion. The “wall of separation” Jefferson envisioned was to protect religion, not the government. Far from being “neutral” toward religion, as President John Adams stated, the Constitution “was made only for a moral and religious people.” After all, church services were held in the Capitol until 1857, and Judeo-Christian values and customs are at the core of our most sacred institutions. The Founders clearly viewed government power as a critical tool in ensuring that individuals like Coach Kennedy have a right to express their faith publicly, rather than as a cudgel to suppress it. It’s also worth noting that the idea that a public school teacher would not have been permitted to invoke religion in the classroom or on the sports field would have been a shocking idea to Americans across the political spectrum up until the latter half of the 20th century.
The First Amendment plainly says that “Congress shall make no law respecting an establishment of religion” (emphasis added). That three Justices of the Supreme Court would interpret that language to mean that a high school football coach cannot pray with his players following a game reflects just how far the left has come in its hostility toward religion and religious individuals. Far from being “neutral” toward religion, as Justice Sotomayor suggests, ruling in the opposite direction would have amounted to an affirmative action by the government to penalize religious practice generally and Christian religious practice specifically.
Fortunately, the Supreme Court withstood significant political pressure and stopped an overreaching government from banning the free exercise of religion that is protected under the Constitution. For that, all Americans – religious and non-religious alike – can be thankful.
Shane Harris is a writer and political consultant from Southwest Ohio. You can follow him on Twitter @Shane_Harris_