In the past two weeks alone, the Supreme Court ruled that a public school cannot fire a high school football coach for praying at games and that a state which provides public funds for private schools cannot prohibit those funds from going to religious schools. Given how conservative this court is, and how protective it is of religious objectors, neither decision was a surprise. The era of religious freedom, likely at the expense of other rights like the freedom from other types of discrimination, has arrived.
The era of religious freedom, likely at the expense of other rights like the freedom from other types of discrimination, has arrived.
Monday’s case involves Joseph Kennedy, a former public high school football coach who continued to openly pray in the middle of the football field right after games. The court held that the coach was engaged in a private activity in his private capacity when he was praying, and that the school board violated the coach’s free exercise right to kneel and visibly pray when it told him to stop and later failed to renew his contract. The court rejected the school board’s argument that it had a duty under the establishment clause to stop one of its employees from praying at the football game, since it concluded that the coach was engaged in private, not public, actions. This case, therefore, says nothing about whether a public school teacher can lead a class in prayer as part of a class session.
On June 21, the court struck down a Maine law which provided that public funds could be used to send children to private secular schools, but not to religious schools. Chief Justice John Roberts, writing for an ideologically divided 6-3 majority, concluded that when a state offers tuition assistance it cannot bar families from using that assistance at religious schools. The majority found that Maine’s program of prohibiting public funds from being used at religious schools “is discrimination against religion.”
Another way of framing Roberts’ conclusion is to say that if a state decides to allow public funds to be used for private schools, it must fund religious schools as well. Justice Sonia Sotomayor noted in her dissent that the court has created a rule that “requires states in many circumstances to subsidize religious indoctrination with taxpayer dollars.” Looking down the road, the court’s rationale is likely to extend far beyond schools. If states decide to fund a program, taxpayers may end up funding religious activities.
Both cases present a battle between two portions of the First Amendment dealing with religion. On one side of the ring, we have the free exercise clause of the First Amendment, which protects us from a government that would intrude on our ability to engage in activities that support their religious beliefs. On the other side we have the establishment clause of the First Amendment, which protects us from a government that attempts to establish a religion. Specifically, the establishment clause bars the government from favoring religion over nonreligion, one religion over another, or nonreligion over religion. These two clauses attempt to balance the sometimes competing interests of government and religion. In both cases, the conservative block of the Supreme Court prized the free exercise clause over the establishment clause. Looking down the road, the court’s rationale is likely to extend far beyond schools. These cases likely represent the beginning of this court’s steady march toward enlarging the free exercise clause at the expense of other rights. Next term, the court will hear the case of Colorado web designer who claims her religious beliefs prevent her from offering her web design services to same-sex couples who wish to have a website for their weddings. Colorado has an anti-discrimination law which currently requires that businesses like the web designers not discriminate on the basis of LGBTQ status. It doesn’t take a lot of tea leaf reading to know how that case will likely come out.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
