The ever-looming dismantling of the church-state divide in America echoes through the halls of power, as shown by a presidential candidate's words at a Houston conference for Protestant pastors. He stated, "I'm a firm believer in the absolute separation of church and state in America." He further clarified, "I speak not in the name of my church in public matters, and the church does not speak in my name."
Currently, the six conservative, mostly Catholic-background justices of the Supreme Court (John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) have shown a keen interest in the historical foundations of the church-state divide. Interestingly, President Kennedy's staunch advocacy for this divide managed to preserve his political viability and mirrored values deeply rooted in Jeffersonian ideals within our two-hundred-year-old constitutional framework.
This past week, the Supreme Court delivered its verdict in the Kennedy v. Kennedy (Bremerton School District) case. This decision has raised eyebrows, as Bremerton School District dismisses our core values and bypasses decades of precedent by refusing to uphold them. In a 5-4 majority, with Gorsuch's leading the charge, the Court sent a message that football coach Kennedy, a Bremerton high school teacher, had the right to pray privately on the fifty-yard line, surrounded by players and spectators, after the game, as per the First Amendment's Free Exercise Clause and Establishment Clause. This ruling did not violate the Establishment Clause's prohibition on state-sponsored religion, as interpreted by the highest court in the land.
The ever-present conflict between the Free Exercise and Establishment Clauses of the First Amendment, which protect religious freedom and prohibit state establishment of religion, have been at odds from the time they were incorporated into the U.S. Constitution in 1791. Essentially, does granting religious expression in the public sphere equate to promoting the basis of religion? To solve this dilemma, U.S. Supreme Court justices have adopted three main strategies:
- Strict Separation: Thomas Jefferson's vision of a "wall" between religion and government, described in 1802, comes closely to this position, and the Confessional Association supports this concept of religious freedom.
The term "wall" was first employed by the Supreme Court in 1878 when it upheld federal legislation prohibiting polygamy in the territories. Associate Justice Hugo Black later clarified this stance in a 1947 case involving reimbursement of bus fare for religious students, distinguishing between state funding of religious education and directly funding the church. Black ruled in favor of the former in 1962, marking the end of compulsory, state-sanctioned, written prayer in public schools. President Kennedy responded by encouraging parents to promote private prayer at home and in houses of worship.
- Neutrality: Chief Justice Warren Burger introduced the "lemon test" in a 1971 case that invalidated state aid for religious schools in Pennsylvania. To maintain the government's neutrality on religious matters, policy should pursue secular objectives, neither promoting nor suppressing religion, and avoid excessive entanglement between church and state.
Moderate conservative justices Sandra O'Connor and Anthony Kennedy (no relation to the football coach) have expanded the neutrality principle by introducing two additional components. The relationship between state and religion should neither appear to "endorse" it nor coerce individuals, particularly students, to participate in religious activities. In 1992, Kennedy applied this test to strike down the practice of clergy delivering prayers at public school graduation ceremonies.
- Religious Tolerance: Conservative justices argue that strict adherence to separation causes a violation of religious freedom since the Bill of Rights prevents state establishment of religion. They recognize that the founders knew that an official religion negatively affected other religions.
The late Associate Justice Antonin Scalia, a prominent advocate for religious tolerance, argued in 1994 that, once the court ceases to rely on text and history as a guideline, there is nothing to prevent it from designating an institution as a religious one. The U.S. Supreme Court has an inherent potential to classify religious institutions as such.
In this legal term, four religious cases have been brought before the court:
- Allowing football coaches in public schools to lead prayers at football games
- Parents in Maine are able to use state study aid to pay for religious schools' tuition
- Texas courts permit spiritual advisors to pray and console death row inmates before execution
- A Christian group seeking the right to hoist their flag outside of Boston's City Hall
In a pro-religion move, the court adopted a reconciliatory stance on these matters, though such action contradicts current legal norms. This stance represents a triumph for conservative religious views, albeit one that the law does not officially endorse.
