[A version of this post will also appear at On the Docket, an online publication of the George Washington Law Review]

In Kennedy v. Bremerton School District, the Supreme Court effectively repudiated its Establishment Clause jurisprudence of the past 75 years, including the School Prayer Cases, and left nothing in its wake to prevent the government and its agents from using religion as an engine of policy. In the thin disguise of protecting an individual’s rights under the Free Exercise Clause and the Free Speech Clause, an opinion by Justice Gorsuch shrunk the Establishment Clause to a bar on undefined “historical practices and understandings.” Together with its decision last week in Carson v. Makin, decided with the same 6-3 split, the Court has jettisoned the entire post-World War II constitutional project of maintaining a secular state. The Chief Justice, and Justices Thomas, Kavanaugh, Alito, and Barrett, joined the opinion. Justice Sotomayor, joined by Justices Breyer and Kagan, dissented.

Kennedy involved a public high school football coach who insisted on praying immediately after games, on the fifty-yard line, in full sight of his players. This practice had grown out of Coach Kennedy’s earlier behavior, interdicted by his employer, of praying with and giving religious motivational speeches to his players. In the wake of requests from the School District, Kennedy had been defiant, reaching out for publicity and refusing to move his post-game prayers any further from the players than the fifty-yard line, immediately after the games.

The District had suspended Kennedy for defying its request that he stop this activity, and his lawsuit followed. No inter-circuit conflict existed, and a few years ago, it would have been unimaginable that the Supreme Court would grant certiorari in a case of this sort. But Kennedy and his lawyers had grossly distorted the narrative of the case, and made it appear -- but only to those willfully blind to the dispute’s history and full context -- that Kennedy’s religious expression was “private” and “personal.” So framed, the case apparently appeared irresistible to the six Justices intent on remaking all of Establishment Clause law.

Prior to the Court’s opinion, the District, like every school district in the United States, had ample authority to police religious communication between a coach or teacher and those under their charge. That authority rested firmly on the School Prayer Cases and their progeny. Of all the decisions in what was once a vibrant Establishment Clause canon, the School Prayer Cases had long seemed the most solid. Engel v. Vitale (1962), followed immediately by Abington Township v. Schempp (1963), stood for a firm principle – the State may not support or promote religious experience in its public schools. Engel involved daily recitations of the New York State Regents Prayer. Abington involved more traditional religious material, including the Lord’s Prayer and Bible verses. The School Prayer Cases were later extended to the context of silent prayer, Wallace v. Jaffree; Ten Commandments displays in school, Stone v. Graham; public school graduations, Lee v. Weisman; and public school sporting events, Santa Fe School District v. Doe. Nothing in modern Establishment Clause law seemed more deeply rooted than these decisions, which referenced but went far beyond a concern for coercion. Taken together, these cases wove a tapestry with a vivid display -- public schools should not be the author or instigator of the religious experience of students.

The relevant Establishment Clause norm has deep foundations. Education is compulsory, typically up to age 16, so worship practices in schools either mandate religious experience or impose a burden on students to identify themselves as “different” to escape it. Moreover, even without any concern for coercion, government composition of or selection of prayer puts the State in the position of pastor for its public school children. Such practices unify the power of the state with the authority of religious communities. It is for parents, not the State or its agents, to decide what religious experience their children should have. And unification of religious and secular authority ultimately invites a form of totalitarianism, against which church-state separation is a structural defense. (Witness the supportive role of the Russian Orthodox Church in the Russian invasion of Ukraine.)

Moreover, Congress and the Executive Branch of the U.S. government have internalized these principles in various statutory and regulatory recognitions of the rights of students – but not teachers or coaches -- to voluntarily engage in religious experience in schools. The federal Equal Access Act explicitly limits the role that teachers or staff may play in student-sponsored religious activity in public schools. The U.S Department of Education has for the past twenty-five years promulgated guidelines for voluntary religious expression in the public schools. The focus of these guidelines has always been on students, who are not agents of the state.

Nothing in the Court’s prior decisions, the relevant Act of Congress, or the pronouncements of the Clinton, Bush, Obama, Trump, and Biden Administrations, all of which were grounded in the most basic of non-establishment norms, shows any recognition for the interests of teachers, coaches, or staff in praying on the job. The reasons for this silence are screamingly obvious. School employees, on school premises and within school hours, are agents of the state. The school directs the performance of their duties. Students rightly perceive the communication of teachers as reflecting the values and concerns of the school. Unless the teacher’s expression is unmistakably separate from official duties, students will assume that such expression is attributable to the school. With the school’s imprimatur presumptively behind it, prayer from coaches or teachers will signal school sponsorship and implicitly coerce cooperation.

Justice Gorsuch’s opinion for the Court did not give the slightest attention to these foundational concerns and obvious problems. Rather than confronting the task of explaining why coaches or teachers should be free to pray in ways that would inevitably implicate the School District, the opinion focuses almost all of its energy on the Free Exercise and Free Speech rights of Coach Kennedy. It emphasizes his insistence that his utterances were personal and private, despite the fact they took place on the fifty-yard line, immediately after games, and that he welcomed the participation of players and other coaches, including those of the opposing team. And it de-emphasizes entirely the behavior that led the School District to monitor his behavior – a multi-year practice of prayer and religious motivational speeches in locker rooms before, during, and after games.

Rather than attempt to find a path of harmonizing the Coach’s personal rights with the School District’s constitutional responsibilities to students and their families, the Gorsuch opinion trained its fire on two strands of more general Establishment Clause doctrine. The first, and most general target, was the three-part test of Lemon v. Kurtzman, which focuses on religious purpose, religious effect, and entanglement of government and religion. The second target is the principle, an outgrowth of Lemon, that the government should not endorse religious beliefs in ways that operate to divide the community into insiders and outsiders – those who share the beliefs versus those who do not. That approach had led to mixed results over the past 40 years, but it had produced rulings that limited government displays of a Nativity Scene at Christmas and the Ten Commandments in a County courthouse. Most recently, in American Legion v. American Humanist Ass’n, the Court had finessed away the test of endorsement in upholding the government-sponsored display of a Latin Cross to honor those who died serving their country in World War I.

The Court in Kennedy did not claim to overrule these doctrines. Rather, it asserted that they had already been overruled by various prior decisions, including that involving the display of the Cross. However accurate that may be – and we have no doubt that these six Justices reject Lemon and the endorsement corollary – there remained the authority of the School Prayer Cases, which had been decided before Lemon or any endorsement case, and which stood on their own constitutional ground. By ignoring that inconvenient fact of constitutional development, the majority could in turn ignore the overarching teaching of the School Prayer Cases themselves. Kennedy’s lawyers had briefed and argued the case this way, with nary a mention of the School Prayer Cases, and the Court was all too happy to follow this lead.

Having swept aside the last sixty years of non-establishment law, what did the Court put in its place? Without elaboration or example, the opinion tells us that “the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ [citations omitted] ‘[T]he line’ ” that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” And what would those practices and understandings be? They would most certainly not include the teachings of the School Prayer Cases and their progeny, which time after time require the exclusion of worship from public school practices. On the contrary, if the relevant history and practice is that of 1791, when the Establishment Clause was ratified, or 1868, when the Fourteenth Amendment was added to the Constitution and imposed the Establishment Clause on the states, public schools can be thoroughly Christian in their orientation. Teachers can teach Bible lessons and lead students in prayer. Not a word in today’s majority opinion suggests that these inferences from historical practices and understandings are wrong.

The only nod to the interests of students and their families appears in the form of a response to the School District’s argument that Coach Kennedy’s prayer practices tended to coerce participation by players under his control and needing his approval. The Gorsuch opinion agrees that coercion of students would present a constitutional problem, but it asserts that no evidence supports the idea that any of the players felt coerced by Kennedy’s practices. Because it emphasizes the notion that Kennedy prayed privately, or separate and apart from the team gatherings – though only after being admonished to not pray with the team itself – the opinion dismisses the coercion concern as speculative. Even worse, it covers the coercion danger with the seemingly attractive notion that public schools are a place where everyone should learn to tolerate the religious expression of others as part of living in a pluralist society.

With respect to the relationships of students with other students, this is no doubt appropriate. That is why federal law recognizes the permissibility of voluntary student expression in schools. With respect to teachers and coaches with authority over students, however, the Kennedy opinion utterly ignores the teachings of Engel and Abington. Those decisions did not depend upon coercion, and they both presumed the likelihood of coercion without the necessity of proof by the claims of individuals. Nothing in the Kennedy decision recognizes or supports either approach.

In the hands of those in the Kennedy majority, coercion will take on a very different meaning. First, they are likely to follow the lead of Justice Scalia, dissenting in Lee v. Weisman, to the effect that coercion must involve punishment, not just feelings of pressure. Second, even under a looser, pressure-oriented version of coercion, individuals must come forward to assert it. As we know from the experience of those who complained about the prayer at football games in Santa Fe, many students and their families will fear retaliation if they publicly complain. This is why it is essential for school districts, like Bremerton, to intervene to protect their students against coercion. After today’s ruling, such efforts will invite litigation which school districts will find very difficult to win.

We predict, with sorrow, that the School Prayer Cases will collapse into no more than an offshoot of West Virginia Board of Education v. Barnette, which prohibits making compulsory the recitation of The Pledge of Allegiance. Schools may prescribe the Pledge, so long as they allow students to opt out. Prayer in schools may soon have the same character, requiring the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor, or at the very least must tolerate out of respect for the rights of staff.

Even if the schools themselves do not sponsor or offer prayers, Kennedy will embolden teachers and coaches to do so, claiming that the prayers are personal or private. They might do so immediately before a class, or a team practice, or a game. They might step away from the group of students but remain within earshot and vision. They will not demand participation, but they will not discourage it, and their conduct will invite it. Many public school districts will welcome this behavior, as some parents request and commend it. In school districts, like Bremerton, that try to protect students against religious pressure, officials will be extremely wary of disciplining teachers and coaches for their in-school religious behaviors, and they will be highly unwilling to litigate against teachers and coaches who challenge them.

Although any teacher or coach is now free to pray on school premises and on school time, there is every reason to expect that Christian prayer will dominate the scene. Christians remain a majority in most schools, and Christians are far more likely to proselytize than members of other faiths in America. Prayer by Jews, Muslims, and others is more likely to roil the school’s fabric of cooperation and more likely to invite complaints by parents – not about prayer per se, but about the exposure of their children to prayer by “others.”

Justice Sotomayor’s dissent, joined by Justices Breyer and Kagan, valiantly pushes back against the Court’s evisceration of the entire canon of Establishment Clause norms, including but going far beyond the School Prayer Cases. The dissent appropriately challenges the majority’s narrative of Coach Kennedy’s conduct, and its characterization of his prayer as personal and private. For years, as the photographs in the dissenting opinion vividly illustrate, the Coach surrounded himself with players and others during his religiously based motivational speeches. His continually resistant retreat in the face of School District complaint was always conducted in a way to bring attention to his desire to pray as part of his job.

Moreover, as the dissent explains, the idea that the teachers and coaches have thick free exercise and free speech rights while on the job cannot possibly be squared with the Establishment Clause responsibilities of the school, or with the law on employer control of employee speech and conduct. Of course, teachers need not abandon any sign of their religious affiliation while on the job. The teacher who wears religious garb, or a teacher who says grace quietly in the lunchroom, does not threaten a school district’s interest in protecting a constitutionally appropriate atmosphere in the school, where the school remains religiously neutral and no one is pressured by authorities to accept a religious experience. Coach Kennedy was never inconspicuous or inner-directed, and never tried to be either.

Kennedy v. Bremerton School District is only the latest in what has now become a lengthy string of decisions that elevate the free exercise of religion over all competing interests, constitutional and otherwise. Carson v. Makin, decided just last week, similarly subordinated longstanding Establishment Clause norms to free exercise interests. Carson ignores historical practices and policies about government funding of religious schools because those practices disfavor the Court’s preferred outcome. Kennedy, in contrast, claims historical practices as a touchstone because the Justices know that those practices in public schools were religion friendly.

It does not take a Religion Clause scholar to see what has been going on at the Supreme Court over the last dozen years. Religion always wins. Sometimes religion is on the side of challengers, like those in Kennedy and Carson. Sometimes religion is on the side of government, as in cases like Town of Greece and American Humanist. And in almost every case the religion in the case is Christianity.

The Christian Nationalists among us, and among the Justices, must be thrilled. For those of us who know and fear the consequences of a state dominated by a single faith, the Court’s trajectory is chilling.

[A version of this post will also appear at On the Docket, an online publication of the George Washington Law Review]

In Carson v. Makin, the Supreme Court held that Maine violated the Free Exercise Clause by excluding certain religious schools from a program that allowed parents to direct state funds to non-public schools. The case involved a challenge to a program that permitted parents in some rural school districts, which lacked adequate public schools, to use state subsidies for certain private schools. The statute did not categorically bar religious schools from eligibility to receive these funds, but it required participating schools to have a “nonsectarian” curriculum. The Supreme Court, with all six conservative justices joining the majority opinion, held that the exclusion of schools with a sectarian curriculum violates the Free Exercise Clause by subjecting those religious schools to unequal treatment without adequate justification.

Chief Justice John Roberts is not typically the author of opinions filled with smug disdain. But his opinion for the Court in Carson v. Makin certainly has that tone. The Court’s opinion treats the case as nothing more than a self-evident application of its prior rulings in Trinity Lutheran v. Comer and Espinoza v. Montana Department of Revenue. Both decisions rejected state laws, which had been based on state constitutional provisions, that excluded religious institutions from certain programs of governmental funding. Unlike Carson, however, those decisions focused specifically on the challenged statutes’ exclusion of religious entities because of their status – i.e., their religious identity. The opinions suggested, at least implicitly, that restrictions based on religious use of government funds would pose a different problem. In Carson, the majority opinion brushed aside that distinction with no explanation. “[T]hose decisions never suggested,” Chief Justice Roberts wrote, “that use-based discrimination is any less offensive to the Free Exercise Clause.”

However true that may be, use-based “discrimination” lies at the heart of traditional Establishment Clause limits on state funding of religious activity. The government may not sponsor or fund activities that are specifically religious – worship, religious instruction, and proselytizing. Or so constitutional lawyers thought for the past 75 years. The Court’s decision in Carson v. Makin has potentially opened a new world of mandatory government funding of specifically religious activity, throwing off many decades of precedent that tried to mesh equal treatment of religious institutions with the Establishment Clause’s restriction on government support for religion. Whatever balance might have existed before Carson is now history. The Court has decisively subordinated any Establishment Clause concerns to the right of equal funding under the Free Exercise Clause.

Carson v. Makin – The Decision

Those who follow the Court’s Religion Clause jurisprudence should not have been surprised at the decision in Carson v. Makin. The case involved a program of indirect aid – voucher financing – for non-public schools. The program required eligible schools to offer only “nonsectarian instruction.” That statutory limit dated back to 1981. Before then, parents could direct state tuition funds to any accredited school. In 1981, however, Maine’s legislature voted to exclude sectarian schools out of concern that such funding would violate the Establishment Clause. The concern was reasonable at the time, but the Court’s 2001 decision in Zelman v. Simmons-Harris resolved any doubts about the constitutionality of including accredited religious schools in a voucher financing scheme.

After describing the Maine program, the Court concluded that “[t]he unremarkable principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.” Those unremarkable principles included (1) a determination that religious and secular private institutions are fully entitled to equal treatment under the Free Exercise Clause; and (2) the peremptory judgment that states do not have reasonable, much less compelling, independent grounds for imposing more restrictive non-establishment rules than those required under federal constitutional law. The second “principle” produces the Court’s disdainful treatment of Maine’s argument that the Court should respect its independent concerns about church-state separation, but it offers nothing new. The same arguments from Missouri and Montana met an identical fate in Trinity Lutheran and Espinoza. No respect for federalism is to be found here.

The first “principle” deserves a closer look. It is true that Trinity Lutheran and Espinoza rest on the Free Exercise Clause’s ban on discrimination against religion. But the cases seemed to recognize a limit on that principle, one that could only originate in the Establishment Clause. Categorical discrimination against a person or entity because of religious identity presumptively violates the Free Exercise Clause. Restrictions on government funding of specifically religious uses, however, such as worship or religious instruction, cannot be subject to the same categorical presumption of unconstitutionality because Establishment Clause jurisprudence had long imposed its own distinction between religious and secular uses of government funding.

The Court could have resolved this case with a narrower opinion that focused on the practical irrelevance of the status/use distinction for the Maine school funding program. The challenged program involves entirely indirect aid; parents are free to choose any (nonsectarian) school. The included private schools are free from nearly all controls over curriculum, state evaluation, and teacher qualifications. In other words, the state has no plausible responsibility beyond the minima of accreditation for the content of instruction that students receive in these schools. Thus, by focusing on the indirect character of the aid, the Court could plausibly have said that the link between the state and any potential religious use is broken by the private choice of parents. In that respect, Carson and Espinoza really are indistinguishable, and closely akin to Zelman.

Chief Justice Roberts did not choose this minimalist route for the decision, despite the majority opinion’s relative brevity and lack of engagement with counterarguments. Instead, he confirmed that the Court has firmly embraced the supremacy of free exercise interests over concerns about non-establishment of religion. The opinion thus stands in a long line of those, dating back to Justice Stanley Reed’s dissent in Illinois ex rel. McCollum v. Board of Education (1948), that have derided non-establishment norms as discrimination against religion in the public square.

The most important signal of this embrace of a long-rejected constitutional approach comes in the Court’s newfound refusal to recognize that distinctions based on religious identity differ profoundly from distinctions based on religious use. If the government must fund specifically religious activities when it funds analogous secular activity, what is left of the Establishment Clause in the funding context?

The New World of Religion Clause Law

At the time we write this post, the Court has under advisement Kennedy v. Bremerton School District, so for the moment we focus only on implications of this New World for government funding of religion. Kennedy, in which a public high school football coach claims a free exercise right to pray on the fifty-yard line immediately after games, may impose the emerging doctrines of the New World on speech by government agents in public schools. Funding alone, though, raises more than enough worries for those who retain some idea of a government limited in its capacity to promote religion.

In Carson, the Court suggests that Maine is not required to fund religious education. The majority offers a range of alternatives, primarily focused on expansion of the public education system either by bringing students to school (boarding schools) or bringing school to students virtually or in-person. Notably, however, the Court does not bless an alternative funding method Maine now permits in rural school districts that do not have a secondary school. Instead of allowing parents to choose the child’s school, the second method authorizes local education authorities to contract with a public or private school and to pay the full tuition of children who attend that “contract school.”

Following Carson, would Maine violate the Free Exercise Clause if it required private contract schools to conform to restrictions on religious teaching and activity that now apply to public schools? Contract schools involve direct aid, not parental choice – except the parent’s choice to place the child in a school without public funding – so does that take the practice outside the reach of Carson? Perhaps. But a contract solicitation that conditions eligibility on the school’s commitment not to engage in religious activity now seems the same as exclusion based on the school’s religious identity. Indeed, Trinity Lutheran involved a program of direct funding, and the Carson majority certainly did not discuss any relevant differences between the two cases. Despite the Court’s repeated emphasis on “parental choice” in Carson, we have no confidence that the distinction between direct and indirect aid has any more vitality after this decision than the distinction between religious status and use.

Although attention to the Court’s decision in Carson has focused almost entirely on its potential implications for education, the decision covers another broad domain of public spending – social welfare programs operated by private entities, including many faith-based organizations. Since the Charitable Choice legislation of the 1990s and President George W. Bush’s Faith-Based Initiative, the federal government has emphasized the right of religious institutions to participate in a wide variety of social welfare funding programs. Such programs include substance abuse treatment, adoption and foster care, social services that support job training and parenting skills, among many others. The rules that have governed these programs for the past two decades guard against discrimination based on religious status. Religious entities have the right to compete on equal terms for government funds. In light of longstanding constitutional norms, however, the rules explicitly forbid funding for religious uses of the funds. Providers may use government funds only for programs that do not include “specifically religious activities,” typically delineated in statute and regulation as prayer, worship, or religious instruction. Any provider that also engages in such activities must segregate them in time or space from the government-funded program, and delivery of program benefits may not be conditioned on the beneficiary’s willingness to participate in those activities.

Until the decision in Carson, we had good reason to believe that these conditions on government funding were required by the Establishment Clause. Now, however, those conditions have been called into serious question. A religious provider that believes it cannot confine its social welfare programs to exclusively secular components has always been categorically ineligible to apply for direct funding. After Carson, those providers will certainly challenge the program rules under the Free Exercise Clause. If conditions imposed on religious use of government funds are the same as discrimination based on religious identity, then government must eliminate those restrictions on aid for faith-intensive social welfare programs.

In eliminating such restrictions, government will inevitably confront problems with Free Exercise claims by program beneficiaries who want to receive government benefits without the incorporated religious messages. Governments at all levels will be forced into the impossible choice of trying to accommodate those individual objections, out of concern about the welfare of program beneficiaries who could be steered into unwanted religious experience, or moving the programs, long based on public-private partnerships, entirely into public institutions. As Justice Sotomayor wrote in dissent in Carson, this inevitably will result in a decrease in total services available.

Moreover, the Court’s decision in Carson calls into question other conditions on government funding. As we have seen many times before, including in last term’s decision in Fulton v. City of Philadelphia, government may include contract provisions – such as prohibitions on discrimination based on sexual orientation or gender identity – that some religious entities find objectionable. The Court resolved Fulton on seemingly narrow grounds, but Carson may give that decision a much firmer foundation in the Free Exercise Clause. A condition on receipt of government funds that effectively excludes one or more religious providers would once again invite strict scrutiny. That is what Justice Alito argued for in Fulton, though he assumed that the Court would need to overturn Employment Division v. Smith to reach that conclusion. By reshaping the non-discrimination principle into a broad primacy of free exercise over non-establishment and other legitimate governmental interests, Carson may undo such conditions without overturning Smith. Where there is a judicial will, there is a judicial way, and the Court’s treatment of free exercise claims in recent years suggests an indomitable will to prefer and protect the interests of religious actors over the competing interests of others.

The only solace we can offer to those who care about sound constitutional principles of religion-state relationships is this. Over time, any constitutional understanding that promises equal benefits to religion without imposing equal obligations on religion is likely to collapse from lopsided favoritism. The Religion Clauses demand symmetry – the government should not finance what it cannot regulate, and vice versa. This is why we defend the ministerial exception, which bars government regulation of the employment relationship with those who preach a faith. Government should neither regulate nor subsidize exclusively ecclesiastical activities, such as worship. A Court that demands public support to religion without holding it to account to public values will eventually lose its legitimacy on this subject, as the Roberts Court is at risk of doing on other subjects as well.

Conclusion

Dissenting opinions rarely understate the significance of the decision to which they object. But the dissents of Justices Breyer and Sotomayor do just that. Justice Breyer expresses concern that the majority has eliminated the “play between the joints” of the Religion Clauses, but that metaphor had been relegated to the facts of Locke v. Davey before Carson. Justice Sotomayor objects that the Court is dismantling the “wall of separation” between church and state, but that metaphor lost its salience long before Carson. The dissenters have missed or understated the radical, revolutionary character of the Court’s decision. With dismay, we have been observing this precise trajectory in Religion Clause law, but we are surprised that the New World arrived so soon, and with so little effort to explain the supposed defects of the regime it replaces.