Why Religious Liberty is Foundational in a Free Society

 Here is a link to Mark Rienzi's (of Becket) powerful statement:

link 

 

Kennedy v. Bremerton

 Justice Gorsuch's majority opinion provides a great executive summary of the facts and holding:

Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. 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. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. 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.

 The School believed the Establishment Clause required it to fire Coach Kennedy for praying on the field after the game because a "reasonable observer," who observed him praying, might mistakenly believe that the school was endorsing his prayer. Is it reasonable to jump to this conclusion? "[T]he District appealed to what it called a 'direct tension between' the “Establishment Clause” and 'a school employee’s [right to] free[ly] exercise' his religion.  To resolve that 'tension,' the District explained, an employee’s free exercise rights 'must yield so far as necessary to avoid school endorsement of religious activities.'”

"The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a 'private location' behind closed doors and 'not observable to students or the public.'"

Suppose an African-American coach took a knee during the national anthem in support of Black Lives Matter. Would he have been disciplined by the school? 

Were other coaches allowed to engage in free expression on the field for a brief time following games? 

What about a teacher who displays a Pride flag in her classroom? Permitted?

Basically, the school targeted Coach Kennedy's speech because it reflected his religious beliefs. This is a viewpoint based restriction of speech under the Free Speech Clause and a target of religious exercise under the Free Exercise Clause.

Once the plaintiff establishes a free exercise claim, here is what happens:

Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

 The free speech issue is a little more complicated for a government employee and the Court applies a version of intermediate scrutiny. The Court says it need not decide which standard of review applies in this case, because the school district "cannot sustain its burden under any of them." 

How did the school district attempt to justify singling out Coach Kennedy's religious expression for disciplinary treatment?

It relied on the Lemon test and the fear that a reasonable observer would mistakenly view Kennedy's personal prayer as an endorsement of religion by the school. Basically, the school is saying that the EC trumps the FEC and requires the school to censor Kennedy's personal prayer on the field.

Here is what the Court says about the future of the Lemon test: 

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators.  This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”

The Court overrules Lemon and replaces it with the following test:

 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.”

Now consider the Court's conclusions:

In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two. But the project falters badly. 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. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.

  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  religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The judgment of the Court of Appeals is Reversed.

 

Notice Justice Sotomayor's dissent mourning the demise of the wall of separation:

 The Court overrules Lemon v. Kurtzman (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent. . . .

 Which decisions are vulnerable under the Court's new test (actually not so much new as one based upon history, tradition and original understanding)?

What about a state law requiring the national motto--In God We Trust--to be prominently posted in every public K-12 classroom? Compare the Lemon test with the Kennedy test.

What about voluntary school prayer or Bible reading laws? How would Engel and Santa Fe come out under the Kennedy test?

Kennedy as the Lens Through Which to View All EC Jurisprudence

 Remember, the Lemon/Endorsement test is no more, and the Court has replaced it with the Kennedy Test:

 In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.”

As we read cases such as American Legion, Chambers, and Town of Greece we will see this test at work. The test already existed in legislative prayer and passive display cases, and now in Kennedy the test has been generalized as the test for all EC cases. Kennedy is a landmark case, it is now the case to look to when analyzing all issues arising under the EC.

Does Stone v. Graham Survive Kennedy?

 

Stone v. Graham, 449 U.S. 39 (1980)

From Oyez website:

Facts of the case

Sydell Stone and a number of other parents challenged a Kentucky state law that required the posting of a copy of the Ten Commandments in each public school classroom. They filed a claim against James Graham, the superintendent of public schools in Kentucky.

Question

Did the Kentucky statute violate the Establishment Clause of the First Amendment?

Holding

In a 5-to-4 per curiam decision, the Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman, and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day.

 

How should the new Louisiana Ten Commandments law be decided?

Prof. Kavanaugh's Black Letter EC Formulation

 As we leave the Establishment Clause behind, you should keep in my Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:

"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in  history and tradition; or (ii) treats religious people, organizations, speech, or activity equally   to  comparable  secular  people,  organizations,  speech,  or  activity;  or  (iii) represents  a   permissible  legislative  accommodation  or  exemption  from  a  generally applicable law, then  there ordinarily is no Establishment Clause violation. The   practice   of   displaying   religious   memorials,   particularly   religious   war  memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."

Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link)

Little v Llano County: Fifth Circuit rejects Free Speech claim regarding public library's removal of books

 Little v. Llano County Link

 

Money quotation:

We consider whether someone may challenge a public library’s removal of books as violating the Free Speech Clause. Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.   We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons. First, plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.

 

Do you agree with the Fifth Circuit's opinion? 

Vice President Vance on American Exceptionalism and Protecting Democracy

 Vance's speech to European leaders in February 2025:

 

For years, we’ve been told that everything we fund and support is in the name of our shared democratic values.

Everything—from our Ukraine policy to digital censorship—is billed as a defense of democracy.

But when we see European courts canceling elections, and senior officials threatening to cancel others, we ought to ask whether we’re holding ourselves to an appropriately high standard.

And I say “ourselves” because I fundamentally believe that we are on the same team. We must do more than talk about democratic values. We must live them.

Within living memory of many of you in this room, the Cold War positioned defenders of democracy against tyrannical forces on this continent.

Consider the side in that fight that censored dissidents, closed churches, and canceled elections. Were they the good guys?

Certainly not. And thank God they lost the Cold War. They lost because they neither valued nor respected all of the extraordinary blessings of liberty—the freedom to surprise, to make mistakes, to invent, to build.

As it turns out, you can’t mandate innovation or creativity, just as you can’t force people what to think, what to feel, or what to believe.

We believe those things are certainly connected. Unfortunately, when I look at Europe today, it’s sometimes not so clear what happened to some of the Cold War’s winners. I look to Brussels, where EU commissars warn citizens that they intend to shut down social media during times of civil unrest, the moment they spot what they’ve judged to be “hateful content.”

Or to this very country, where police have carried out raids against citizens suspected of posting anti-feminist comments online, as part of "Combating Misogyny on the Internet: A Day of Action."

I look to Sweden, where two weeks ago, the government convicted a Christian activist for participating in Quran burnings that resulted in his friend’s murder. And as the judge in his case chillingly noted, Sweden’s laws to supposedly protect free expression do not, in fact, grant a free pass to do or say anything without risking offending the group that holds that belief.

And perhaps most concerningly, I look to our very dear friends, the United Kingdom, where the backslide away from conscience rights has placed the basic liberties of religious Britain in the crosshairs.

A little over two years ago, the British government charged Adam Smith-Connor, a 51-year-old physiotherapist and army veteran, with the heinous crime of standing 50 meters from an abortion clinic and silently praying for three minutes.

Not obstructing anyone. Not interacting with anyone. Just silently praying on his own. After British law enforcement spotted him and demanded to know what he was praying for, Adam replied simply: “It was on behalf of the unborn son he and his former girlfriend had aborted years before.”

Now, the officers were not moved.

Adam was found guilty of breaking the government’s new “buffer zone” law, which criminalizes silent prayer and other actions that could influence a person’s decision within 200 meters of an abortion facility.

He was sentenced to pay thousands of pounds in legal costs to the prosecution.

Now, I wish I could say that this was a fluke—a one-off crazy example of a badly written law being enacted against a single person.

But no.

This last October, just a few months ago, the Scottish government began distributing letters to citizens whose houses lay within so-called Safe Access Zones, warning them that even private prayer within their own homes may amount to breaking the law.

Naturally, the government urged readers to report any fellow citizen suspected guilty of thought crime.

In Britain and across Europe, free speech, I fear, is in retreat.

And in the interest of comity, my friends, but also in the interest of truth, I will admit that sometimes the loudest voices for censorship have come not from within Europe, but from within my own country, where the prior administration threatened and bullied social media companies to censor so-called misinformation.

Misinformation like, for example, the idea that coronavirus had likely leaked from a laboratory in China.

Our own government encouraged private companies to silence people who dared to utter what turned out to be an obvious truth.

So, I come here today not just with an observation, but with an offer.

And just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite.

And I hope that we can work together on that.

Birthright Citizenship: Two Views

 Link

 Trump Might Have a Case on Birthright Citizenship (By Randy E. Barnett and Ilan Wurman):

 NYT Opinion Page