On Monday, the Supreme Court ruled in favor of a high school football coach and against the public school district that fired him for taking a knee in quiet, personal prayer after games.
In a 6-3 decision, the court ruled that Coach Joe Kennedy’s post game prayers were a private matter and that the school violated the Free Exercise and Free Speech Clauses of the First Amendment, which protect an individual engaging in a personal religious observance from government reprisal.
The school had argued that another clause of the First Amendment, the Establishment Clause, required it to prohibit Kennedy from praying publicly, lest his “religious references” and displays of faith lead others to believe that the school district endorsed his beliefs. School officials demanded that he stop leading students in pre-game and post-game prayer in the locker room—which he did—and told him that his silent prayers on the football field would only be permitted if he was “not observable to students or the public.”
But Kennedy continued to pray in the middle of the football field after games, and students continued to join him. He argued that he had the right to exercise his beliefs, and pointed out that he never once required or even encouraged students to pray alongside him.
The school, however, placed Kennedy on paid leave and then allowed his contract to expire. Kennedy sued, arguing the school violated his First Amendment rights to speak freely and act on his faith. And this week, the court agreed.
“Respect for religious expressions is indispensable to life in a free and diverse Republic,” Justice Neil Gorsuch wrote in the majority opinion.
“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. The Constitution neither mandates nor tolerates that kind of discrimination.”
But Kennedy’s victory is not just his. This decision is a win for all religious Americans in that it clarifies the perceived conflict between the First Amendment’s Establishment Clause and its Free Exercise Clause, and overturns a vague and unreliable rule that the court has previously used in its rulings on the subject.
The Lemon test, established in Lemon v. Kurtzman, asked the courts to determine the intent behind a government action, and explore whether its effects were secular or religious. It also required judges to consider whether a government action created an “excessive entanglement” between government and religion—an impossibly subjective standard that has left the judiciary with “only a mess,” as Gorsuch wrote in his concurring opinion in another case, American Legion v. American Humanist Association.
The result of the Lemon test has been to set the Establishment Clause and Free Exercise Clause at odds with one another, leading many government entities, especially schools, to suppress religious persons’ right to religious freedom in an effort to make sure the government appears “neutral.”
Neutrality, however, does not mean shielding students and parents from faith in the public square. Nor does it mean removing the government from all religious matters, especially if doing so violates a person’s right to exercise his religious beliefs openly.
Gorsuch writes: “In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned ‘object.’ The District explained that it could not allow an on-duty employee to engage in religious conduct even though it allowed other on-duty employees to engage in personal secular conduct.”
The court went on to abandon the Lemon test entirely, instructing the courts to instead interpret the Establishment Clause not by judge-made rule but “by ‘reference to historical practices and understandings.’”
“A natural reading of the First Amendment suggests that the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others,” Gorsuch wrote.
This decision is an important win for Coach Kennedy, to be sure. But it is also an important step towards a proper, originalist interpretation of the Constitution, one that sticks to the text of our founding documents rather than one that invents new tests and standards.