The Supreme Court issued decisions in two major cases concerning #religiousliberty and education. Carson v. Makin held that the state of Maine can’t withhold public funding from families relying on vouchers to attend religious schools. And Kennedy v. Bremerton came out in favor of a public high school football coach who lost his job after leading prayers on the 50-yard line. These are big First Amendment cases with widespread implications for free exercise of religion and separation of church and state in schools nationwide. MSNBC’s Ali Velshi and President and CEO Jeffrey Rosen discuss the constitutional reasoning behind the cases and the potential outcomes.
Key Excerpts from Carson v. Makin (2022)
In Carson v. Makin (2022), the Supreme Court held 6-3 that Maine violated the Free Exercise Clause by denying public funding to students who sought a religious rather than secular education.
Below are some of the key excerpts from the majority and dissenting opinions. You can read the full opinions here.
Majority Opinion by Chief Justice John Roberts (joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett)
[9] The “unremarkable” principles applied in [Trinity Lutheran Church of Columbia v. Comer (2017)] and [Espinoza v. Montana Department of Revenue (2020)] suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.”… By “condition[ing]the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively penalizes the free exercise” of religion…
[10] [T]here is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of [11] the community from an otherwise generally available public benefit because of their religious exercise…
[16] In Trinity Lutheran and Espinoza, we held 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. This case illustrates why…
Any attempt to give effect to such a distinction by scrutinizing [17] whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism… In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.
Dissent by Justice Stephen Breyer (joined by Justices Sonia Sotomayor and Elena Kagan)
[1] The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the “‘play in the joints’” between the two Clauses. See [Trinity Lutheran]. That “play” gives States some degree of legislative leeway. It sometimes allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion. In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway…
[4] This doctrine [the “play in the joints” doctrine] reflects the fact that it may be difficult to determine in any particular case whether the Free Exercise Clause requires a State to fund the activities of a religious institution, or whether the Establishment Clause prohibits the State from doing so. Rather than attempting to draw a highly reticulated and complex free-exercise/establishment line that varies based on the specific circumstances of each state-funded program, we have provided general interpretive principles that apply uniformly in all Religion Clause cases. At the same time, we have made clear that States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions… And, States have freedom to make this choice even when the Establishment Clause does not itself prohibit the State from funding that activity…
[7] We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”
Dissent by Justice Sonia Sotomayor Breyer
[3] [I]n just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.
[T]he consequences of the Court’s rapid transformation of the Religion Clauses must not be understated. From a doctrinal perspective, the Court’s failure to apply the play-in-the-joints principle here [leaves] one to wonder what, if anything, is left of it. The Court’s increasingly expansive view [4] of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once “permit[ted] religious exercise to exist without sponsorship and without interference.” [Walz v. Tax Commission of the City of New York (1970)].
[5] What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” [Justice Sotomayor, dissenting in Trinity Lutheran.] Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.
Key Excerpts from Kennedy v. Bremerton (2022)
In Kennedy v. Bremerton (2022), the Supreme Court ruled 6-3 that a Washington school districted violated the First Amendment’s Free Exercise and Free Speech Clauses by firing a high school football coach because he prayed at the 50-yard line after games.
Below are some of the key excerpts from the majority and dissenting opinions. You can read the full opinions here.
Majority Opinion by Justice Neil Gorsuch (joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett)
[1] Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied… Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike…
[17] [I]t seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach… He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. [Simply] put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee…
[25] [I]n this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion… In its correspondence with Mr. Kennedy, the District never raised coercion concerns. To the contrary, the District conceded in a public 2015 document that there was “no evidence that students [were] directly coerced to pray with Kennedy.”…
[31] 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. Here, 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. 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 [32] religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.
Dissenting Opinion by Justice Sonia Sotomayor (joined by Justices Stephen Breyer and Elena Kagan)
[1] This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since [Engel v. Vitale (1962)], this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment…
[13] Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as [14] part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so…
[31] In [Santa Fe Independent School District v. Doe (2000)], a student council chaplain delivered a prayer over the public-address system before each varsity football game of the season… Students were not required as a general matter to attend the games, but “cheerleaders, members of the band, and, of course, the team members [32] themselves” were, and the Court would have found an “improper effect of coercing those present” even if it “regard[ed] every high school student’s decision to attend…as purely voluntary.”… Kennedy’s prayers raise precisely the same concerns. His prayers did not need to be broadcast. His actions spoke louder than his words. His prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive than the audience in Santa Fe, with spectators watching and some players perhaps engaged in a song, but all waiting to rejoin their coach for a postgame talk. Moreover, Kennedy’s prayers had a greater coercive potential because they were delivered not by a student, but by their coach, who was still on active duty for postgame events.
