Though all eyes are understandably focused on whether the Supreme Court will overturn Roe and Casey, the justices will also soon decide a significant establishment clause case. In April, the Court heard oral arguments in Kennedy v. Bremerton School District, a case involving a football coach at a public high school who lost his job after repeatedly kneeling on the 50-yard line in post-game prayer. Given the Court’s current composition, many expect the coach to prevail. But whether his win amounts to a lasting victory for religious liberty will depend on if the Court overturns its long-standing “wall of separation” precedents that promote government hostility toward religion. That larger victory, by no means assured, would require the Court’s most conservative and originalist justices to adopt a more persuasive account of what constitutes a prohibited establishment of religion.
For years, Joseph Kennedy, an assistant football coach at a public high school outside of Seattle, took a knee in prayer at midfield after his team’s games. Coach Kennedy was often joined by players, including those from the opposing team. When local school district officials learned of his actions, they requested Coach Kennedy pray alone and out of sight of students.
Given that players have good reason to pray if they finish a game healthy (not to mention that they are following the example of NFL players and coaches who pray after their games), it might seem like the school district bureaucrats should be flagged for unsportsmanlike conduct. But school officials actually had good reason to believe that the coach’s actions violated one or more of the tests used by the Supreme Court to enforce the establishment clause.
The Court’s “endorsement” test holds that state actors, including public school officials, may not endorse religion. The Court has used the test, originally created by Justice Sandra Day O’Connor, to strike down legislation providing a moment of silence for voluntary prayer at the beginning of the public school day (Wallace v. Jaffree, 1985) as well as school-sanctioned pregame prayers at public school football games (Santa Fe Independent School District v. Doe, 2000). A different establishment clause precedent prohibits schools from “psychologically coercing” students to pray. That test, created by Justice Anthony Kennedy, led the Court to strike down nondenominational invocations and benedictions at high school graduations (Lee v. Weisman, 1992). And the Court still has not thrown out Chief Justice Warren Burger’s “Lemon” test that requires the government act with a secular purpose, not advance religion, and also not “excessively entangle” itself with religion. These long-established establishment clause precedents all derive in one way or another from the Court’s original “wall of separation” decision in Everson v. Board of Education (1947). They also mean that, once school district officials found out about Coach Kennedy’s prayers, they were all but obligated to try to stop it lest they face a lawsuit for “endorsing” religion, indirectly coercing students to pray, or improperly advancing religious belief.
Therein lies the first of several problems with the Court’s establishment clause precedents. They effectively demand government hostility toward religion. If school district officials don’t act against religious activities and expressions, they will be sued by the ACLU, Americans United for Separation of Church and State, or some other like-minded progressive activist organization. The easiest way for administrators to avoid controversy is to simply keep religion off school grounds.
Religious expressions are thus singled out for disparate treatment. Had Coach Kennedy knelt for the national anthem or for the cause of diversity, equity, and inclusion, he surely would still be on the sidelines this fall. Only prayer is excluded and penalized. Until the Supreme Court overturns its establishment clause precedents, public school officials will continue to treat religious expression as if it’s a contagious virus.
It’s not clear that the Court will use the current case to overturn its precedents. The Court could rule for Coach Kennedy by just saying that his prayers were private speech and not attributable to the government. If so, a reasonable observer might conclude that the school district was not endorsing religion. Such a decision would allow Coach Kennedy to pray and religious liberty litigation firms to claim victory, but it would be a loss for the rest of us. We would still be subject to judicially-crafted “wall-of-separation” doctrines that foster a religiously hostile public square.
Now is the time to overturn the Court’s erroneous establishment clause jurisprudence. The First Amendment was not designed to prohibit government endorsement of religion, nor does it reach “psychological” coercion or mandate that government not advance religion. At least five (and probably six) justices know this. But as with the Court’s abortion jurisprudence, for the Court to make a significant decision it must overturn long-standing precedents. To make such a bold move, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett may have to break with Chief Justice Roberts, who appears to believe the Court’s legitimacy depends on maintaining the legal status quo as much as possible, perhaps with occasional nudges toward more conservative results. Roberts’s position is shortsighted and abdicates his judicial responsibility. Justices take an oath to uphold the Constitution—the actual Constitution, not the one fabricated by past justices who have read their prejudices into the Constitution’s text— not to maintain the prestige of the Court. Only through faithfulness to the Constitution will justices restore the Court’s legitimacy.
Faithfulness to the First Amendment requires grasping what it actually prohibits. The First Amendment explicitly prohibits Congress from making a law “respecting an establishment of religion.” To overturn establishment clause precedents, the justices have to explain what actually constitutes a prohibited religious establishment. Originalists and conservatives have failed thus far to do this persuasively, which is among the reasons why the Court’s “wall of separation” precedents have survived.
That failure has resulted in part from a lack of constitutional comprehension. Justice Scalia repeatedly mocked the Court’s leading establishment clause precedents by showing how they could not comprehend specific historical examples from the founding era. Even a casual glance at our founding history, Scalia would point out, reveals repeated examples of the framers positively endorsing, encouraging, and advancing religion. The first congress hired a legislative chaplain at public expense, President Washington issued official days of prayer and thanksgiving, and the Supreme Court under John Marshall opened its sessions with a prayer (a tradition that continues to this day).
Scalia decisively documented that the Court’s establishment clause precedents were wrong, but he failed to offer a thorough account of what the First Amendment actually forbids. He claimed that the establishment clause prohibits government coercion, but never adequately explained how he reached that conclusion or why coercion alone constitutes a law “respecting an establishment of religion.” One might have asked him: If the founders wanted to prohibit “religious coercion,” why didn’t they just write that in the First Amendment? And if it is just about coercion, what work does the establishment clause do that the free exercise clause doesn’t already do?
To overturn the Court’s long-standing “wall of separation” precedents, then, a new majority must do what Scalia failed to do, and set forth a compelling account of what constitutes a law “respecting an establishment of religion.” This holds true even if Justice Thomas is correct that the establishment clause’s original meaning pertained to federalism. Even if state establishments were protected by the First Amendment, as Thomas suggests, the text also prohibits the federal government from establishing a religion. To properly interpret the First Amendment, the justices need a clear understanding of what constitutes a religious establishment. The progressive interpretation of a “wall of separation” has not stood the test of time, but conservatives and originalists have yet to adopt an alternative to take its place.
If they are willing to start anew, a new Court majority might start by exploring what constituted an establishment of religion at the time of ratification of the First Amendment. To do that, the Court might turn to the one founding-era state that actually constitutionally established a religion.
The 1778 South Carolina Constitution deemed and declared “the Christian Protestant religion . . . to be the established religion of this State.” In practice, this meant established churches were provided special legal privileges and were subject to specific regulatory controls. Established churches were eligible for two important privileges in particular. First, only they could apply for a charter of incorporation, which allowed the church to own property as a corporate body. Second, a legally established church could use the state’s coercive power to collect “pew assessments” and other financial obligations it imposed on its members. South Carolina’s Article XXXVIII held that “[n]o person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support.” While the provision forbade religious taxes collected from all the state’s residents and distributed by government, it allowed for provisions (usually in a church’s act of incorporation) that made church-imposed financial obligations legally enforceable by church officials against church members. In essence, the government delegated its taxing authority to incorporated, established churches against its own members, including the power to impose assessments going beyond the terms of the pewholder agreement with the church.
State-conferred privileges were only half of South Carolina’s religious establishment. It also imposed a number of state regulatory controls. Most significant, Article XXXVIII of the state constitution imposed specific articles of faith on established churches:
1st. That there is one eternal God, and a future state of rewards and punishments.
2d. That God is publicly to be worshipped.
3d. That the Christian religion is the true religion.
4th. That the holy scriptures of the Old and New Testaments are of divine inspiration, and are the rule of faith and practice.
5th That it is lawful and the duty of every man being thereunto called by those that govern, to bear witness to the truth.
The same constitutional article also regulated how pastors and clergy were to be selected and required an oath-of-office-esque declaration of all established ministers. When a church became a part of the establishment, furthermore, the state could regulate its growth by imposing specific financial limitations on that congregation in its act of incorporation.
Given that it was the only founding-era state that expressly established a religion, it is surprising that South Carolina’s 1778 Constitution has not played a more significant role in the Supreme Court’s establishment clause jurisprudence. From it we clearly see that the one unambiguous example of a founding-era religious establishment legislated relationships both of state privileges and state controls.
The First Amendment’s prohibition of a “law respecting an establishment of religion” prohibits what I call “state establishments” and “church establishments.” In my forthcoming book Religious Liberty and the American Founding, I explain that “state establishments” occur when government itself exercises the functions of an institutional church, including the regulation of internal church matters such as the content of doctrine and the selection of ministers. “Church establishments” involve the delegation of government’s coercive authority to churches, especially in matters of taxation and financial contribution. The establishment clause means the state cannot function like a church nor delegate its powers to a church.
For prayer in public schools, this would mean that state officials cannot write prayers and mandate that students recite them. It would uphold the outcome of cases like Engel v. Vitale (1962), in which the Court struck down the “Regents’ prayer” prescribed for New York public school students at the beginning of the school day. It would also hold that teachers and students can pray voluntarily on school grounds as long as they do not disrupt ordinary school functions. This common-sense conclusion reflects the framers’ design to protect religious freedom through limiting state authority over religious exercises and retaining legitimate state power from church authorities. The government can’t make students and teachers recite state-prescribed prayers nor can it delegate its power to religious authorities, but neither can it prohibit teachers, students, and coaches from praying when it does not interfere with their assigned responsibilities.
The original meaning of the establishment clause was about power, not perceptions. It was designed to prevent the government from exercising the powers of a church and from delegating its legitimate power to churches. The framers didn’t mandate government neutrality toward religion (whatever that might be), prohibit endorsement of religion, or require that the government not advance religion. They certainly didn’t prohibit individuals’ prayer on public property. It’s past time for the Court to correct its establishment clause errors by overturning those precedents that lead to government hostility toward religion.
Vincent Phillip Muñoz is Tocqueville Associate Professor of Political Science and director of the Center for Citizenship & Constitutional Government at the University of Notre Dame.
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