We are a nation born of the radical idea that “all men are created equal” and “endowed by their Creator with certain unalienable Rights.” That is why liberty and freedom flourished in our nation against all odds. That fundamental appeal to the authority of our Creator, above and beyond earthly governments, levels the playing field among selfish human interests.
It is a plea to a higher authority above raw human power, and it necessarily affirms every person’s intrinsic, equal value. It stands squarely against the inevitable attempts of our broken nature to establish one class of individuals above another. These attempts have existed throughout time. They were undoubtedly palpable at the nation’s founding. We still have them today. And they will continue.
Eternal vigilance is a prerequisite for sustained freedom in this world.
The recent religious liberty win in Kennedy v. Bremerton School District is an excellent example of the efforts needed to preserve liberty in America in the coming years. Increased hostility toward Christ and His teachings is leading our culture to some bizarre conclusions that will devastate our future if they are allowed to take root.
At the same time that our culture insists on promoting the early sexualization of our children in schools, with drag queens promoted as the best role models, here, in this case, a Christian coach had to fight all the way to the Supreme Court to defend his unalienable right to pray silently after school football games. He is apparently not the type of role model our kids need.
Drag queens, fantastic role models; humble, praying, Christian coaches, horrible-no-good-intolerable role models, according to today’s woke school officials.
Like Justice Neil Gorsuch, writing for the majority to uphold Coach Kennedy’s First Amendment rights, pointed out, in the system’s view, “the only acceptable government role models for students are those who eschew any visible religious expression.”
Thankfully, the United States Supreme Court has stopped the targeting of our Christian faith for now. However, the attitude that persisted in this injustice for almost seven years against Coach Kennedy still dominates our public educational institutions. And our federal courts, let’s not forget that. The targeting of Coach Kennedy was approved by both the district and the appellate courts.
We have so distorted the Constitution throughout the years that public officials actually believed, and again, the lower courts went right along, “not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution.”
This is, of course, absurd given our nation’s founding, but anti-Christian forces have used the so-called “separation of church and state” extra-constitutional mantra so often for so long that this misconception of the First Amendment in schools is widespread. Here the Court helps clarify that this misunderstanding of law cannot shield school officials from their intolerant practices. “[T]he only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” the Court wrote. “The Constitution neither mandates nor tolerates that kind of discrimination.”
Religious speech is speech. It should be afforded all the constitutional protections traditionally applied to any other speech. Instead, for years, it has been particularly targeted because it is religious. This boggles the mind when one considers that, if anything, religious expressions were singled out in the Constitution as perhaps worthy of heightened protection. As the Court wrote:
In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.
That double protection the Court references was also a crucial part of the opinion because, for years, some have tried to pit the free exercise and the establishment clause against each other, but instead, “the Clauses have ‘complimentary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”
The school district here thought it needed to choose between the two. The Court explained: “[T]the District effectively created its own ‘vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,’ placed itself in the middle, and then chose its preferred way out of its self-imposed trap.”
The school officials were simply mistaken, as they are so often. “And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” This should have been apparent, especially for the judges reviewing the cases. “We are aware of no historically sound understanding of the Establishment Clause that begins to ‘mak[e] it necessary for government to be hostile to religion’ in this way,” the Court wrote. There is none. The courts below did not cite one either.
Instead, they relied on the infamous Lemon test, which “called for an examination of a law’s purposes, effects, and potential for entanglement with religion.” The test has long been criticized for fundamentally distorting the original meaning of the First Amendment.
Concerned Women for America (CWA) has long joined that chorus of criticism, asking the Court to abandon it. As the Court held, “the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its endorsement test offshoot.”
Lemon is dead. Justice Gorsuch’s straightforward treatment leaves no doubt for lower courts. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.'”
Under that standard, it is clear that “in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
Of course, some will still find offense at any public expression of faith—especially the Christian faith. But “[o]ffense. . . does not equate to coercion,” and the Court puts that “hecklers veto” to rest masterfully.
Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But 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.”
Ordinarily, the Court would spend some time describing the different standards of review, but this case was so clear that the Court said, “it does not matter which standard we apply. The District cannot sustain its burden under any of them.”
This is a strong opinion that we hope can help lower courts and even school officials better understand the constitutional burdens they bear when dealing with sincere religious exercises going forward. They would be wise to train their instincts towards accommodation.
As the Court concluded, “Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” Well said.
