Vastly overshadowed by the uproar over Politico's bombshell report that the Supreme Court may be poised to overturn past abortion rulings, the court actually released religious-liberty ruling written by retiring Justice Stephen Breyer. His Shurtleff v. City of Boston opinion (.pdf here) reasoned that since Boston had permitted 284 city hall flag displays by varied groups, it violated freedom of speech to forbid a Christian flag for fear of violating church-state separation.
Harvard Divinity student Hannah Santos, writing for Americans United, said Christian flag displays would be "disturbing and demoralizing" and evoke the Puritan founders' "cruel" intolerance. But Breyer and the other two liberal justices joined six conservatives in this unanimous — repeat unanimous — decision.
There's likely to be less Court concord on another First Amendment ruling reporters need to prepare for in coming weeks. This dispute crisply demonstrates the culture-war split among American religious groups and between most Democrats and Republicans.
Kennedy v, Bremerton School District [Docket #21-418] involves the firing of Joseph Kennedy, an assistant high school football coach in Washington state. He violated the school's order against his kneeling to utter brief prayers on the 50-yard line after games, with students who wished joining him.
Here, too, Kennedy's freedoms of speech and religion ran up against school fears about violating the Constitution's clause barring government "establishment of religion." Click here for a recent Julia Duin post looking at some of the media coverage of this debate.
In preparing coverage to interpret the forthcoming ruling, keep in mind possible ramifications beyond the gridiron. As Christianity Today reported, hypothetical situations the justices discussed during the two-hour oral argument included teachers or coaches praying silently or aloud or reading the Bible before class, coaches praying on the sidelines perhaps with specific notice that students weren't required to pray or that they cannot pray or a player simply making the sign of the cross.
Also this. A court filing from the Jewish Coalition for Religious Liberty and the Islam team at the Religious Freedom Institute informed the justices that observant Jewish teachers and coaches need to speak brief public blessings before eating or drinking, and that Muslims must join daily prayer times during public school hours or while chaperoning a field trip.
Kennedy's supporters say he didn't violate the Court's "endorsement" of religion, "coercion" or "neutrality" tests. This side includes the predictable Catholic bishops, Southern Baptists and other evangelicals and a host of cultural conservatives.
Paul Clement, solicitor general and acting attorney general under President George W. Bush, argued the case for Kennedy. Republicans filing briefs included Bill Barr and four other former U.S. attorneys general, 27 of the 50 states, 12 U.S. Senators and 14 U.S. House members versus, among Democrats, 13 states plus D.C. and 11 U.S. House members backing the school's action.
Religious hesitancy about school prayer is typified by a brief from the Evangelical Lutheran Church in America, United Church of Christ, Baptist Joint Committee for Religious Liberty and American Jewish Committee. It was prepared by law professors Douglas Laycock of the University of Virginia, known for seriously weighing religious freedom claims, and Christopher Lund of Wayne State University.
For these groups, Kennedy was not acting in a private capacity but as a "government employee" with access to the 50-yard line who used his status to "compel, pressure, persuade, or influence his students to engage in religious activity." This is said to be "at odds with decades of settled case law, executive branch guidance" and federal legislation. A similar stance is upheld by the National Council of Churches (which includes 37 "mainline" Protestant, Eastern Orthodox and other denominations), Reform Judaism, Unitarian Universalists and others.
Over the years the high Court has banned official prayers in classrooms, graduations and football games, and even outlawed moments of silence for personal prayer or reflection. Here's a good Pew Research Center backgrounder for those new to the public school legal debates.
Contacts for Laycock: 512-656-1789 and dlaycock@virginia.edu. For Lund: 313-577-3933 and lund@wayne.edu. The Southern Baptist Convention leaders et al. are represented by Frederick W. Claybrook, Jr. (202-250-3833 and rick@claybrooklaw.com). The Catholic bishops are represented by the Becket Fund's Lori Windham (202-955-0095, lwindham@becketlaw.org).
FIRST IMAGE: Uncredited illustration with Becket law feature on the Kennedy case.