WASHINGTON—The U.S. Supreme Court delivered what most religious liberty advocates declared an important victory in ruling Monday (June 27) the post-game, midfield prayer of a high school football coach did not violate the First Amendment’s ban on government establishment of religion.

In a 6-3 opinion, the justices decided the Bremerton (Wash.) School District actually violated the First Amendment rights of Joseph Kennedy by removing him as a coach because of its concerns his practice infringed on the Establishment Clause. In doing so, the majority acknowledged it no longer abides by a more than 50-year-old standard in church-state cases known as the Lemon test.

“[A] government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment,” Associate Justice Neil Gorsuch wrote in the court’s opinion. “And the 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 Constitution neither mandates nor tolerates that kind of discrimination.”

Joining Gorsuch in the majority were Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Associate Justice Sonia Sotomayor wrote a dissenting opinion that was endorsed by Associate Justices Stephen Breyer and Elena Kagan.

Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), applauded the decision.

“As any Christian knows, our faith is deeply personal and rightly shapes every aspect of our lives,” Leatherwood said in an ERLC news release. “We live out our faith in any number of ways, both privately and publicly.

“Today’s case centered on the latter and the Supreme Court rightly determined that an individual employed by a school does not forfeit his or her constitutional right to free expression simply by entering ‘the schoolhouse gate’ or, as it were in this case, the field of play.”

The ERLC joined in three friend-of-the court briefs in support of Kennedy, two urging the Supreme Court to review rulings by the U.S. Ninth Circuit Court of Appeals and one in March calling for the justices to reverse the lower court. “The Establishment Clause, as properly interpreted, does not override the government’s duty to accommodate the free exercise of religion on a nondiscriminatory basis,” the most recent brief said.

The Ninth Circuit Court in San Francisco twice ruled against Kennedy, who was ultimately joined by some players and others in the on-field prayers. In a 2021 opinion, a three-judge panel of the Ninth Circuit Court said the school district would have violated the First Amendment’s Establishment Clause had it permitted Kennedy to continue to engage in his on-field, religious exercise after games.

In the court’s opinion, Gorsuch said, “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.”

The school district sought to “generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties.  . . .  Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds,” he wrote.

“In truth, there is no conflict between” the Free Exercise and Free Speech Clauses on one hand and the Establishment Clause on the other, according to Gorsuch’s majority opinion.

Leatherwood said the ruling reaffirms the following “aspect of constitutional law: our First Amendment rights travel together. We, and many others, have long held that religious liberty is our nation’s first freedom and that it bolsters and strengthens other foundational rights.”

“The Court today strengthened this perspective by writing that the clauses of free expression, establishment and free speech are all complementary,” he said. “If it were not already clear enough, this Court views religious liberty as a bedrock right in our free republic.”

The oft-criticized Lemon test became a subject of discussion during April’s arguments in the case, Kennedy v. Bremerton School District. The Lemon test was based on a standard offered in the 1971 Lemon v. Kurtzman opinion, which said a law must have a secular purpose, not primarily promote or restrict religion and “not foster an excessive entanglement with religion” to avoid a violation of the Establishment Clause.

In Monday’s opinion, Gorsuch said the school district and the Ninth Circuit Court overlooked that Lemon’s “ahistorical approach to the Establishment Clause became so ‘apparent’ [citing an earlier decision] that this Court long ago abandoned Lemon and its [government] endorsement [of religion] test offshoot.”

The Supreme Court has explained the Lemon and endorsement tests “’invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators,” Gorsuch wrote, again quoting a previous opinion. Instead, the high court has emphasized an “analysis focused on original meaning and history” has “long represented” its Establishment Clause doctrine, he wrote.

In her dissent, Sotomayor said the court’s opinion “is no victory for religious liberty.”

“It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all,” she wrote.

The high court “now goes much further” than its recent church-state opinions, “overruling Lemon entirely and in all contexts,” Sotomayor wrote. “It is wrong to do so.”

Becket, a religious freedom advocacy organization, tweeted, “We are thrilled that the Supreme Court recognized the importance of religious expression and finally buried the Lemon test that restricted religious expression.

“Religion should not be scrubbed from the public square just because it makes a few people uncomfortable. And a person’s faith – like Coach Kennedy’s – shouldn’t be forced to stay private.”

John Bursch, senior counsel for Alliance Defending Freedom, said in a written statement the high court was right to reverse the Ninth Circuit’s decision “that wrongly reasoned that Coach Kennedy’s personal, on-field prayers were not his own, but the government’s. American citizens don’t give up the right to prayerfully practice their faith during working hours when they accept a job with a public employer.”

Advocates for a strict separation between church and state decried the opinion.

Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said the decision “undermines religious freedom in public schools by holding that school officials must accommodate a public school teacher’s religious exercise at a school event.”

The court “pays lip service to religious freedom but throws out any concern about avoiding government pressure on students,” she said in a written release.

In 2008, Kennedy – an assistant coach with the Bremerton (Wash.) High School varsity team – began the practice of walking to the 50-yard line after each game, kneeling and briefly praying, thanking God for the players. Players eventually began joining him, and Kennedy, who was also head coach of the junior varsity team, continued to pray at midfield following games for the next seven years. He also reportedly gave motivational speeches to players on both teams who gathered around him.

During the 2015 season, the school district superintendent sent a letter to Kennedy telling him to refrain from the post-game prayers and from religious expression in his motivational talks to players. The superintendent said Kennedy’s practices likely violated the Establishment Clause. After abiding by the mandate for a few weeks, Kennedy returned to his former practice of praying at midfield and was joined by others.

The school district placed Kennedy on administrative leave as a result. The athletic director recommended the school not rehire him in 2016, and Kennedy declined to apply for a coaching position when a new varsity head coach was hired for the next season.

The article originally appeared in Baptist Press.

WASHINGTON (BP)—The U.S. Supreme Court solidified its view of religious freedom regarding public benefits by ruling Tuesday (June 21) a state violated the First Amendment by barring faith-based schools from participation in a tuition-assistance program.

In a 6-3 opinion, the high court decided Maine offended the First Amendment’s guarantee of the free exercise of religion by refusing to include in the state’s education-choice program schools that teach their religious beliefs. For more than four decades, Maine has excluded faith-based schools from a state system that assists families in the many small towns in the state that do not operate secondary public schools and the smaller number that have no elementary schools.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Chief Justice John Roberts wrote for the court in Carson v. Makin. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

The high court’s split was not an unexpected one. Joining Roberts in the majority were the associate justices generally considered conservative: Clarence Thomas; Samuel Alito; Neil Gorsuch; Brett Kavanaugh; and Amy Coney Barrett. Dissenting were Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who typically make up the court’s liberal wing.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC) filed a friend-of-the-court brief in March 2021 that asked the Supreme Court to review a lower court’s decision in favor of the state. It submitted another brief in September of last year that urged the justices to support the parents challenging the religious rule in Maine’s program.

“Maine’s attempt to sidestep the Constitution was halted in its tracks today, and rightly so,” said Brent Leatherwood, the ERLC’s acting president, in a news release. “The justices’ decision here accurately comports with the fundamental nature of religious liberty in our nation.

“The Court rightly decided that parents who choose to participate in a program like the one in Maine cannot have their constitutional rights abridged merely because they choose to send their children to a religious school,” he said. “Similar attempts to curtail free expression have rightly been labeled ‘odious’ by the Court in previous decisions, and Maine’s program can now be added to that infamous list.”

In Maine’s system, districts without schools are required to pay tuition up to a legal limit at a public or private school elsewhere of the parents’ choosing. To qualify for the program, however, private schools must be “nonsectarian,” a category that disqualifies any religious school that promotes the faith with which it is identified.

Mike Nerney, associational mission strategist for the Maine Baptist Association, said the decision “represents a victory for Maine families.”

“As parents, over the years my wife and I have chosen numerous educational options (including one of the religious schools at the center of this case) for our children based on what we felt was best at any given time of our lives as well as for their individual personal development,” Nerney said in written comments. “In the case at hand, given that the State of Maine’s funds are being given directly to the families, and not to the educational institutions, the Court’s ruling merely serves to support a parent’s right to make educational decisions in the best interest of their own children.”

The Supreme Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits,” Roberts wrote in the decision that reversed a lower court’s opinion.

“The State pays tuition for certain students at private schools – so long as the schools are not religious,” he wrote. “That is discrimination against religion.”

The court’s opinion relied heavily on two recent decisions, Trinity Lutheran Church of Columbia, Mo., v. Comer in 2017 and Espinoza v. Montana Department of Revenue in 2019. In the cases, the justices invalidated state programs that excluded a church and certain schools because of their “religious character.”

“The ‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case,” Roberts wrote. “While the wording of the Montana and Maine provisions is different, their effect is the same: to ‘disqualify some private schools’ from funding ‘solely because they are religious.’”

Maine’s exclusion of religious schools from its program “promotes stricter separation of church and state than the Federal Constitution requires,” he wrote. “As we held in Espinoza, a ‘State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools simply because they are religious.’”

In his dissent, Breyer denied the Trinity Lutheran and Espinoza opinions resolve the Maine case.

Maine “excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals. … [U]nlike the circumstances present in Trinity Lutheran and Espinoza, it is religious activity, not religious labels, that lies at the heart of this case,” Breyer wrote.

Roberts responded to Breyer in the majority opinion by saying the justices held in the Trinity Lutheran and Espinoza rulings “that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”

He wrote, “Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. [T]he prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”

Southern Baptists Michael and Jonathan Whitehead, a father-son lawyer team who practice in the Kansas City, Mo., area, represented the Maine parents along with lawyers from the Institute for Justice and First Liberty Institute. They also helped represent Trinity Lutheran Church in its suit.

Jonathan Whitehead, who is an ERLC trustee, described the decision as “a breakthrough precedent for equal access for parental choice in education, and we hope it will benefit parents across the nation with other programs for school choice.”

“Today, the Supreme Court made clear that equal access means states can’t discriminate against religious status or use,” he said in a news release. “Free exercise means both religious beliefs and religious actions must be protected.”

Michael Whitehead said, “Justices Breyer, Kagan and Sotomayor are willing to allow parents to choose nominally religious schools, but oppose the choice of robustly religious schools.”

In a written statement, Kelly Shackelford, president of First Liberty Institute, called it “a great day for religious liberty in America. We are thrilled that the Court affirmed once again that religious discrimination will not be tolerated in this country.”

Meanwhile, strict church-state separationist leader Rachel Laser charged the Supreme Court “is forcing taxpayers to fund religious education.” The president of Americans United for Separation of Church and State said in a news release, “Far from honoring religious freedom, this decision tramples the religious freedom of everyone.”

The First Circuit Court of Appeals in Boston upheld the constitutionality of the Maine program’s exclusion of faith-based schools. The U.S. Department of Justice (DOJ) joined the state in defending the program before the high court in oral arguments in December 2021. In doing so, the DOJ reversed the position held by the Trump administration, which supported the parents who brought a lawsuit.

Maine’s tuition-assistance program included faith-based schools until a 1980 interpretation by the state’s attorney general resulted in a change.

This article originally appeared in Baptist Press.