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The Overrepresentation of Religion in the Courts, Congress, and the Classroom

Image via Associated Press

The last Supreme Court session resulted in numerous 6-3 decisions in which the conversative majority consistently contradicted precedents. While the most outrage was directed at the high-profile decision in Dobbs v. Jackson, there were two other cases that have the potential to dramatically alter our nation’s balance between church and state: Kennedy v. Bremerton and Carson v. Makin.

In Kennedy v. Bremerton School District, the court dealt with the question of whether a public school could prohibit a school official, in this case, a football coach, from conducting a prayer during a school sports activity. The 6 conservative justices ruled in Coach Joseph Kennedy’s favor, claiming that Kennedy’s speech was protected by the Free Speech and Free Exercise clauses of the First Amendment. 

In their majority opinion, they argued that Kennedy was fired for offering a “quiet prayer of thanks”, which occurred after the conclusion of the game rather than during his official duties as a coach. They reasoned that the prayer was protected because it occurred,\ 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, and imparted no pressure on any students to join him.” Here, the majority was attempting to present a distinct chronology of events, thereby framing Kennedy’s firing as due to his religious beliefs (protected by the Constitution), rather due to imposing these beliefs onto impressionable students (not protected by the Constitution in public schools). 

In her dissenting opinion, Justice Sonia Sotomayor, pushes back on this claim and pokes holes in the majority’s narrative. She writes “Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct.” To further question the majority’s recollection of the facts, Justice Sotomayor also includes pictures of Kennedy leading students in prayer. The pictures show Coach Kennedy surrounded by a gathering of students and holding up a player’s helmet. Sotomayor illustrated that Kennedy’s prayer was much more than a “quiet prayer of thanks” — rather, it occurred within the context of the football game and attracted a sizable crowd.

Carson v. Makin deals with another major First Amendment controversy: the role of religion and school funding. Maine had a funding system in place to ensure that all students can receive a free education, even if they do not live close to a public school district. The system used government funds to pay for students to attend private schools, but created a “nonsectarian” requirement in order to avoid violating the Establishment Clause. However, in Carson Chief Justice Roberts and the conservative majority focused on violations of the Free Exercise clause instead of the Establishment clause, arguing that supporting religious schools did not constitute a state establishing a religion. The majority decision established that states must allocate funds toward religious education if they give funds to other private schools. Justice Breyer wrote a dissenting opinion combatting the majority’s reasoning and breaking down the specifics of Maine’s funding system. Justice Sotomayor, in contrast, uses her separate dissenting opinion to express concern about the general state of the court’s recent jurisprudence. She concludes her opinion by arguing that the current court is leading “us to a place where separation of church and state becomes a constitutional violation” of Free Exercise.

Prior to the moves conducted by the current majority, the Court relied upon the Lemon test as precedent in determining Establishment Clause violations. In 1971, the Court heard the case Lemon v. Kurtzman and created the following three-pronged test: For a policy to be upheld, 1) it must have a secular purpose, 2) it can neither inhibit nor promote religion, and 3) it cannot create a government entanglement with religion. It was also later ruled in Lee v. Weisman and Lynch v. Donnelly that government actors cannot endorse a specific religion or include religion in schools in a way that amounts to “coercion.” In Kennedy and Carson the majority decided to abandon this test, writing that “given the apparent ‘shortcomings’ associated with Lemon’s ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot.” 

So, why did these six justices abandon a 50-year legal precedent? They are afraid. They are afraid of the diminishing importance of (Christian) religion in American civic life and the consequences this has for the political power of religious groups. In 2020, the percent of Americans belonging to a church, synagogue, or mosque plunged to below 50 percent for the first time since first measured in 1937. The percentage of Americans who believe in God has dropped 11 percentage points in the last eleven years, after remaining relatively consistent for over 60 years. This drop is especially prominent among young Americans. But this change in demographics has not played out in the same way with regard to our elected officials. Even though roughly 1 in 4 Americans identify as either agnostic, atheist, or “nothing in particular,” only one member of Congress reported being unaffiliated with a religion. No Congressperson has yet identified themselves as agnostic or atheist. The trend of government officials affiliating with a specific religion also applies to the Supreme Court. All nine current justices publicly identify with a religion: Six are Catholic, two are Protestant, and one is Jewish. 

Consequently, some justices have expressed concern over  the growing percentage of Americans who do not affiliate with a religion. In a recent speech at the Notre Dame School of Law, Justice Samuel A. Alito told a story about how a young boy in a Berlin museum did not recognize Jesus, indicating coming “hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.” 

This decline in religiosity among Americans has led to increased animosity and reactionary sentiment from religious people, which can result in political and judicial decisions that alienate the non-religious. At Bremerton High School, where Coach Kennedy was employed, this antagonism toward the non-religious was felt by students and teachers alike. According to the American Civil Liberties Union’s Kennedy amicus brief, there was evidence that students felt pressure to join in the prayer or risk facing social alienation or reduced playing time. Additionally, a teacher, in another Kennedy amicus brief filed by local community members supporting the school board, recounted how the situation forced her to “come out as an atheist” and become a “social pariah.” 

The Christian majority on the highest court in the nation is attempting to hold onto their power and turn the public tide back in favor of religion. They are using schools and young students as the battleground for this fight. Both of these cases have weakened the interpretation of the Establishment Clause and could pave the way for school officials to indoctrinate children in ways that used to be prohibited. 

The Lemon test has been all but voided and replaced with the seemingly reactionary views of the current majority. These decisions are both a symptom and a cause of the underrepresentation of the non-religious. As long as this group’s voice is not taken seriously in politics, the religious elites will continue to make decisions that are out of step with the beliefs of a sizable and growing demographic. And if these decisions continue to proselytize young Americans, their voices will remain silenced.