Hotair
Does a coach offend the Establishment Clause by kneeling in prayer on a school football field? In a 6-3 ruling authored by Justice Neil Gorsuch in Kennedy v Bremerton, the answer is no. Coach Joseph Kennedy got fired from Bremerton School District for offering a “personal prayer” at the end of his high-school team’s football games. Gorsuch and the majority — joined by Roberts in this case — ruled that the school district had violated both the Free Speech and Free Exercise clauses of the First Amendment.
Furthermore, Gorsuch wrote, they showed a remarkable intolerance in the name of tolerance:
Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period 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. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike. …
This case involves three Clauses of the First Amendment. As a threshold matter, the Court today proceeds from two mistaken understandings of the way the protections these Clauses embody interact.
First, the Court describes the Free Exercise and Free Speech Clauses as “work[ing] in tandem” to “provid[e] overlapping protection for expressive religious activities,” leaving religious speech “doubly protect[ed].” Ante, at 11. This narrative noticeably (and improperly) sets the Establishment Clause to the side. The Court is correct that certain expressive religious activities may fall within the ambit of both the Free Speech Clause and the Free Exercise Clause, but “the First Amendment protects speech and religion by quite different mechanisms.” Lee, 505 U. S., at 591. The First Amendment protects speech “by ensuring its full expression even when the government participates.” Ibid. Its “method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse,” however, based on the understanding that “the government is not a prime participant” in “religious debate or expression,” whereas government is the “object of some of our most important speech.” Ibid. Thus, as this Court has explained, while the Free Speech Clause has “close parallels in the speech provisions of the First Amendment,” the First Amendment’s protections for religion diverge from those for speech because of the Establishment Clause, which provides a “specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.” Ibid. Therefore, while our Constitution “counsel[s] mutual respect and…
