Supreme Court Greenlights Yet Another Religion Case

Joe Kennedy coached high school football in Bremerton, Washington. It was his custom to engage his team in locker-room prayer before a game, and gather both teams for after-game prayers. With fans still in the stands, Kennedy kneeled on the 50-yard line and often delivered a religious speech to the players. When Coach Kennedy refused to end the ritual, school officials fired him. This was seven years ago.

Kennedy sued, saying that the school board's actions violated his right to free speech and said that he would take the matter all the way to the Supreme Court. School officials said they were entitled to avoid a violation of constitutionally disallowed government establishment of religion. Both claims rely on the First Amendment.

In January, the Supreme Court agreed to hear the case. The Ninth Circuit Court of Appeals had ruled in favor of school officials which Justice Samuel Alito had found "troubling". That was in 2019 when the Court denied hearing the case but issued a statement by Alito — joined by Justices Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — that the lower court's decision "may justify review in the future".

There were some 5,700 petitions to the Supreme Court in the 2020-2021 term. The justices are expected to hear from 100 to 150 appeals a year, but in recent years it has heard far fewer, averaging 77 in the decade between 2007 and 2018 and issuing opinions in only 67 during its 2020-2021 session.

Yet from this deluge of thousands, the justices have elevated to highest importance a case about praying at a high school football game. That, along with several cases in recent years, says that what we might call the Court's religious wing — five of the conservative justices are Catholic and a sixth Protestant but educated in Catholic schools — is on a mission to give religion privileged status in American society, at a time of growing far right insistence that this be a Christian nation. That observation needs substantiation, so here's a rundown of the many religion-themed cases the Supreme Court chose over the last decade:

The First Amendment of the Constitution reads (in part) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. To steer clear of government ever promoting a national religion, keeping church apart from state has been the least complicated and successful remedy.

But in a case much like Joe Kennedy's, the Court ruled in 2014 that to begin a town council meeting with prayer in Greece, New York, was more than acceptable even though those prayers were heavily infused with Christian liturgical references. A Wall Street Journal editorial called it “a good turn for religious freedom” and even said the “disconcerting surprise is that the decision was only 5-4”.

Our country’s freedom of religion means people are free to follow their beliefs and congregate in their churches, synagogues and mosques but the Court decision said religion may be taken into the public square where people can be subjected to someone else’s religious beliefs.

Justice Alito was unperturbed by Greece town meetings at which Christian clergy had led the prayers for almost a decade because only 3% of Greece is Jewish and other non-Christian groups are fewer still. But a Supreme Court decree is universal and applies to all the town meetings across America, where the audience composition will surely be more mixed. Those in dissent ask: first, why does the exercise of government need to be wrapped in a religious benediction and a request through prayer that its activity be overseen and guided by God, and second, why should the citizens of a town have to join in prayer in order to participate in government?

There followed close on in June 2014 the Hobby Lobby decision, which gave a closely-held family-owned business, an Oklahoma-based chain of 600-plus stores selling craft knickknacks, a special exemption from paying for Obamacare insurance plans that provide contraceptives. Doing so, went the plaintiffs argument, offended the religious sensitivities of the corporation.

You read that correctly. The suit was brought by a coalition of companies with Hobby Lobby the largest. The corporations pay for the insurance, and therefore only the corporations could bring the complaint. That meant the religious beliefs of the families had to be transfused into the corporations so that the corporations could say their religious sensitivities had been offended. Unbelievably, the Court accommodated, which tells you how religiously zealous the conservative wing of the Court had become. Moreover, this expanded their ruling in Citizens United that corporations are “persons” and should have many of the same rights as their human counterparts.

The right of the Green family of Hobby Lobby to practice their religion was never impaired. The family is of course free not to use contraceptives and even free to proselytize abstinence to their workforce, but they wished to go beyond and impose their religious beliefs on the company’s 28,000 employees, depriving them of an insurance benefit available to everyone else under the Affordable Care Act.

CEO David Green said, "It's our rights that are being infringed upon" and “I could live the way I do with ten stores. So why do we want 500 stores? So we can tell more people about Christ”.

Justice Elena Kagan foretold that the Hobby Lobby ruling would bring religious objectors “out of the woodwork”. Two years later the Court heard seven petitions clustered under Zubik v. Burwel which came to be referred to as Little Sisters of the Poor, an international congregation of Roman Catholic women. Again, the complaint was that their insurance should not have to pay for contraceptives in offense to their religious beliefs.

As an accommodation after Hobby Lobby, the Obama administration arranged a carve out whereby religious organizations could simply make their objection known on a government form and provide the name of their insurer. Health and Human Services would then connect directly with the insurer to make arrangements for contraceptive coverage for the organization's employees. The Little Sisters and their followers would be entirely removed from the process, exempted from paying for it, and unsullied by what they called the "evil acts" of preventing pregnancy.

But that — just filling in a form — was asking too much. The plaintiffs argued that simply by informing the government of their insurer, they would be "complicit" in "facilitating" their employees in obtaining contraceptives, or, as the dissent argued, exercising their own options rather than be controlled by the nuns.

In 2017, the Court ruled that taxpayer-funded grants for playgrounds under a state program could not be denied to a Missouri school because it was run by a church. Because money is fungible, i.e., can be commingled with the other funds of an institution, and in such cases as this could be mixed with expenses for religious curricula, this has heretofore been a line not crossed. Chief Justice John Roberts wrote for the majority that, "the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand".

In an analogous case this past December, several justices expressed disfavor of a state program in Maine which discriminates against religious schools. The state gives vouchers to families living in rural areas that lack a public school to enable their sending their kids to public or private schools in other areas. Parents in Waterville sued because the state disallows use of the vouchers at religious schools such as the school that the town does have but which expects its teachers "to integrate Biblical principles with their teaching in every subject", say court papers.

"All they are asking for is equal treatment," Justice Kavanaugh said. "Treat me the same as the secular parent next door."

Just before midnight on Thanksgiving Eve of 2020, the Supreme Court issued a temporary injunction that nullified New York's limits on how many could gather in public places. The restrictions were meant to control the spread of coronavirus. The Court was responding to lawsuits by religious organizations asking for emergency relief, one Catholic and one Jewish.

The Court jumped on the case considering that impairment of the right to congregate for worship constitutes an "emergency". The Journal's editorial page was giddy with the Court's opinion. The first word of its editorial was "Wow". It continued with, "The Court is back as a sentinel protecting the free exercise of religion, even in a health emergency".

A week after Thanksgiving, the Court signaled to a California court that it needs to follow the New York decision in a case brought by a ministry that has churches across that state.

The case was also notable for the rift that broke out between Justice Gorsuch and Chief Justice Roberts, who had sided with the liberal faction to allow governments in Nevada and California to impose crowd size limits on church services. Gorsuch was angered by bans of religious gatherings and mocked the absurdities in the list of businesses regarded as "essential" such as liquor stores, laundries, banks, or big box stores that may admit as many people as desired.

But stores are generally not places where people congregate in close proximity, whereas churches or synagogues such as those in New York City can accommodate hundreds. A news story at the time showed some 700 people of the Hasidic sect packed closely at a wedding, and with none visible in the photo wearing a mask.

And finally, we will at the end of June hear the Court's decision in the challenge to Mississippi's law that bans abortions after fifteen weeks of pregnancy. It is widely expected the Court will overturn the precedent of constitutionally approved Roe v. Wade. If so, it is unavoidable that the legitimacy of the Court will come under fire for its being out of step with the American public, two-thirds of whom want abortions to remain legal. With the Supreme Court's approval rating around 40%, a sizeable percentage of Americans will view the justices as simply voting their religion again.

Salena Zito, a CNN political analyst and a staff reporter and columnist for The Washington Examiner, is very much of the same mind as the Supreme Court. She wrote a column about Coach Joe Kennedy titled, "Does a Seattle-area coach have a prayer in his Supreme Court case?". The answer as you can tell from above is that it's a sure thing.

She says, "The practices of all of our faiths…and our freedom to express our religiosity are deeply rooted in our cultural DNA" and goes on to say, "The protection of religious freedoms does not benefit just people of faith; it also protects the nonbeliever." She doesn't explain why she believes this and she and the Court run up against trends in the U.S. A Gallup poll last April found that the count of Americans who belong to a church, synagogue, or mosque had dropped from 77% in 1999 to 47%. Pew Research in December said 29% of Americans report having no religion, a figure that was 16% in 2007 when Pew began tracking religious identity. The Supreme Court is using law to attempt to reverse that.