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image of the Supreme Court building in context with discussion of free exercise of religion

The Supreme Court: Free Exercise of Religion

Religion is one of the several controversial Constitutional problems that recently came before the US highest Court.  

Ironically, the subject of religion is only mentioned in 16 words of the First Amendment to the Constitution, which states,

 “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof….”  

These 16 words are often characterized as providing freedom of religion and freedom from religion.   They may seem simple at first glance, but their meaning is hotly debated when applied to specific circumstances. For instance, in the 1950s, it was the practice in grammar schools and high schools to have children of all religions sing religious Christmas carols such as Hark, the Herald Angels Sing.

Singing such a song can be considered the free exercise of religion, although many considered it a big step towards the government’s establishment of religion. To some, it was clear that when a public school, an organization paid for and operated by the government, incorporates religious activity into the curriculum, it is a big step towards the establishment of religion since young children would be easily intimidated into reciting what many would consider Christian prayers.

It is easy to understand that parents could react strongly if their children’s schools expected them to recite prayers or sing songs about Allah or Shiva. Certainly, in such an instance, children were being coerced by the school or its teachers, and this coercion is the start of the government establishing a religion. It’s easy to understand how public religious activity by a governmental employee can be seen as a step towards the “establishment of a religion” and thus a violation of the First Amendment guarantee of “freedom from religion.”

Two Supreme Court Cases – Free Exercise of Religion

Two recent Supreme Court cases present situations in which the First Amendment guarantee that the government not establish religion comes in conflict with either the guarantee of the free exercise of religion or statutes that guarantee very important values of our society   

One of the two free exercise cases has already been decided, while a ruling on the other will be issued later this year. One or both rulings may have a dramatic impact on school and government policies regarding this subject. 

In considering these decisions, it is important to remember what we were taught in high school — the role of the Supreme Court is to apply the often-vague language found in the US Constitution. The Supreme Court’s role is not to make laws or to determine what it thinks is “best.” It is to resolve questions about the meaning of the words of the Constitution.  

Deciding what is best in our democratic society or what the voters want falls to thousands of officials, such as the 100 Senators and 435 members of the House of Representatives elected by the voters to respond to their wishes. Supreme Court Justices, on the other hand, are appointed for life in the hope that they will only focus on interpreting the law and not on satisfying popular desires.  

The Supreme Court, Religion, and the First Amendment – Free Exercise of Religion vs. Establishment of Religion in the Bremerton School District

The case that has already been decided (Kennedy vs. Bremerton School District) involved an assistant football coach who was fired because he violated a rule of his contract by kneeling and praying on the 50-yard line shortly after a game. Coach Kennedy’s dismissal called into question the tension between the free exercise of his religion and the school having a clear rule against the activity engaged in by Coach Kennedy. This expressed the School Board’s policy of avoiding taking the first step towards the establishment of religion by coercing the players into practicing any specific religion. 

Certainly, a football coach has the power to limit any student-athlete’s participation in the school’s games. This well-recognized power makes it likely that a player would feel coerced into praying with his coach, even if an express request had not been given. 

Did the coach’s praying immediately after a game, while the players were still present and in uniform, a form of coercion? Some might say it was – there are photographs of ten or 12 players kneeling in prayer along with Coach Kennedy. There is little doubt that these players knew in advance that the coach intended to do what he did. In fact, he had appeared on a local television news show announcing how and when he would do this. 

And there is no doubt the coach knew the school board’s position. Before the event in question, he had led students in prayer in the locker room, which resulted in his receiving a letter telling him he had violated school board rules.

The termination letter to Coach Kennedy stated that it was for praying. It was important to the Court that this letter stated that the coach was fired for praying, not for intimidating the players to pray. Until the Supreme Court decides a different case, we cannot know if the result would have been the same if the termination letter had focused on his supposed intimidation and not on his praying.  

From one perspective, it may seem that Coach Kennedy had a Constitutional right to freely exercise his religion. But from another perspective, the activities of this coach, an employee of the school board, which is an arm of the government, was intimidating by itself and thus a first step in the establishment of a religion.

The Court ruled that firing Coach Kennedy for praying violated his 1st Amendment rights.

Was It a Free Exercise of Religion?

What are the implications of the Supreme Court’s decision? The letter firing him stated that it was for his praying. It did not refer to intimidation. Certainly, this decision and the logic applied by the six-judge majority ruled that a public high school coach could not be fired solely for praying on the 50-yard line after a game. 

Would the result have been different if the evidence established that players joining him had felt intimidated? After all, Coach Kennedy was not praying an hour or two after the game when the crowd had dispersed, and the players had showered and gone home. He did what he had announced he would. He chose to pray immediately after the game when the players were in uniform on the field.

Three judges who disagreed with this decision and thus dissented explained that the presence of several football players, the timing of the prayer, and the position of power of the coach, were proof that some of them must have felt either intimidated or joined him to get his approval and thus an advantage in playing time. In the judges’ view, allowing Coach Kennedy to pray in this way was a first step towards the establishment of religion. 

No one was suggesting that Coach Kennedy should not be able to pray. Rather, the question was, “Does he have a Constitutional right to pray wherever and whenever he wants, even if in a way that creates the likelihood of students being intimidated into following his lead?”

Kennedy vs. Bremerton School District highlights the tension when the free exercise of religion can become a step towards establishing religion. In the short term, school boards and school administrators from grammar schools through colleges, as well as other government units, will struggle to determine how to deal with this issue. 

303 Creative, LLC and Lorie Smith vs. Aubrey Elenis (et al.) – Religious Discrimination

The second case (303 Creative, LLC and Lorie Smith vs. Aubrey Elenis, et al.) has not yet been decided. It involves a woman who refused, because of her religious beliefs, to provide services to a gay couple who were about to be married.   

The woman, Lorie Smith, owns a graphic design company called 303 Creative LLC. Where she designs wedding websites. Because her religious beliefs oppose same-sex marriage, she refused to design a website for such a couple. And she wants to state her religious beliefs on her website, which would make it clear that she would not provide services to others because of their sexual orientation.. 

This may not be a violation of the First Amendment. Her actions were not those of a government employee, and the First Amendment limits what the government does but not what is done by an individual. Still, it violates the Civil Rights Act of 1964, a landmark Federal Statute that makes it illegal to discriminate against anyone based on “sex, race, color, and national origin.”  

Obviously, the Civil Rights Act had a major impact on reducing discrimination that plagued our country for over 200 years. It is easy to imagine that, in the future, there could be a widespread renewal of discrimination by those motivated by, or claiming to be motivated by, their religious beliefs. 

For example, it is inevitable that some will justify their discrimination by falsely claiming they were religiously motivated. There was no issue in the pending case that anyone falsely claimed a religious belief to excuse bigotry. However, a ruling that the Civil Rights act can be violated because of a religious belief opens the considerable likelihood that a bigot will refuse service to LBGBT individuals, blacks, Muslims, and others. The bigot could then claim that their refusal was based on religious teachings. 

Exposing such a lie would be difficult for the courts. Consider some issues.

  • What qualifies as a religion? Does it need 100 followers, 1,000, or 100,000?
  • What must one do to be considered a follower of that religion? Go to a service once a week? Once in a month? Once a year?
  • What specific tenet or teaching of that religion applies to the objection? As we see with government writings, might not religious writing be open to interpretation? 
  • What if someone interprets the teaching of their religion to require, for instance,  that an “unholy” person be killed? Must our society embrace that?

These questions and concerns do not, and should not, depend on whether a court approves or disapproves of any specific religion. But, appreciating the difficulty in resolving these issues is essential to understanding the role of the Supreme Court in our society and appreciating the complications of the questions that come before the justices. And evaluating the wisdom of the logic applied in making their decisions is more complicated than simply approving or disapproving of the result. 

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[Editor’s Note: To learn more about this and related topics, you may want to attend the following on-demand webinars (which you can watch at your leisure, and each includes a comprehensive customer PowerPoint about the topic):

  1. Dispositive Motions
  2. Hot Off the Presses: Recent Cases and Decisions

©2022. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.]

About Henry Krasnow

Henry Krasnow, J.D., C.P.A. was formerly of Counsel at Sugar, Felsenthal, Grais & Helsinger LLP.  For over 50 years, he provided cost-effective solutions for the legal/business problems of privately held businesses, family businesses, and individuals engaged in business. He has written for national and regional publications on subjects such as how business owners can get…

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