The Evolution of the Supreme Court on the Separation of Church and State

In its broadest form, former coach Joe Kennedy’s allegation of religious discrimination against the Bremerton, Wash., school district has the potential to undermine decades of precedent banning school prayer. . The 1962 Supreme Court first ruled that public school officials could not require students to recite daily prayers. In 1992, the court ruled against school-sponsored prayer at high school graduation, and in 2000 it struck down a policy that allowed students to lead pre-game prayer from above. -speaker.

Judge Samuel Alito, who in outside opinions and speeches characterized religion as being under attack in America, was among the judges who seemed most sympathetic to Kennedy. Alito suggested the school district’s action reflected hostility to religion and questioned whether Kennedy would have been disciplined if his postgame statements focused on the Russian invasion of Ukraine or other hot political issues.

What if all Kennedy did, Alito asked a school district attorney, “was wave a Ukrainian flag?” Would you have fired him?” Alito asked in disbelief. “What is the reason to believe that you would have handled the case the same way?

Judge Brett Kavanaugh suggested he thought Kennedy’s situation differed from previous cases in which the court had ruled against school prayer because students could avoid being subjected to the coach’s message.

Kavanaugh described as “a key fact” that the prayers in the 2000 case were spoken over “speakers”, unlike Kennedy praying quietly on the 50-yard line, “when the players disperse after the game”. .

Taking a different approach, liberal judge Elena Kagan tried to focus on students who might feel pressured to follow the coach.

“If you look at our prayer cases,” Kagan said, “the idea of ​​why the school can discipline him is that it puts a kind of undue pressure, a kind of coercion, on the students to they participate in religious activities when they may not want to, when their religion is different or when they have no religion.”

Kagan said a district might want to prevent students from worrying that if they don’t follow a coach’s practices they won’t get into the game. “And that’s a kind of coercion that’s inappropriate for 16-year-olds,” she said.

The current tribunal has increasingly allowed for a greater blending of church and state. The pattern deepened with the addition of conservative justices such as Kavanaugh and other appointees from former President Donald Trump, Neil Gorsuch and Amy Coney Barrett.

The late liberal Justice Ruth Bader Ginsburg, who Barrett succeeded, protested the court’s trend in her last written opinion before her death in 2020.

“(T)a Court totally rejects countervailing rights and interests in its zeal to secure religious rights to the nth degree,” she wrote in a dispute over employers’ religious and moral exemptions from the law’s contraceptive mandate. affordable care. She said the majority allowed “the religious beliefs of some to override the rights and interests of others who do not share those beliefs”.

Over the years, the court has also redefined government rules once seen as neutral to now be potentially discriminatory, for example, on public funding for schools.

Based on earlier arguments in a Maine funding dispute, it appears judges could also overturn a program this session that allows parents to use government-funded vouchers for public and private schools, but not for religious institutions.

Like ongoing disputes over abortion rights and gun control during this Supreme Court term, school prayer remains an enduring part of “culture wars” dating back at least to the Ronald Reagan years.

Former Reagan attorney general Ed Meese actually submitted a brief along with other former GOP attorneys general on Kennedy’s side.

“(P)raying in the public sphere – and even in public schools – was historically commonplace,” they argued. “…Americans who drafted and ratified the First Amendment would balk at the idea that the Establishment Clause could be co-opted to nullify a coach for his private prayers. So does this Court.”

A group of 11 Church and State scholars have, in turn, urged judges to tighten their school prayer bans. “At bottom, (Kennedy’s) argument amounts to a direct attack on the line of cases beginning with Engel v. Vitale (1962), and continuing more recently with the Court’s decision in Santa Fe Independent School District v . Doe”, the 2000 case banning organized prayer over a public address system before games.

If Kennedy wins, the scholars argued in attorney Joshua Matz’s brief, “then surprisingly little court precedent remains.”

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