2022 REPORT BRIEF IV

SCOTUS DISMANTLING WALL OF SEPARATION BETWEEN CHURCH AND STATE SECTION BY SECTION
(Demolition Seems Close To Completion)

Supreme Court sides with high school football coach who lost his job for praying after games (June 27, 2022):

Washington — The Supreme Court on Monday ruled in favor of a former football coach for a high school in western Washington who lost his job after praying on the 50-yard-line after games.

The court ruled 6-3 along ideological lines that the free exercise and free speech clauses of the First Amendment protect an individual engaging in religious expression. Justice Neil Gorsuch delivered the opinion for the majority in the case, known as Kennedy v. Bremerton School District.

"The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike," Gorsuch wrote.

The dispute involving Joseph Kennedy, the former Bremerton High School assistant football coach, stood at the intersection of the First Amendment's establishment clause and the free speech and free exercise clauses, as lawyers for Kennedy argued the school district's punishment for his religious expression violated his constitutional rights. The school district, meanwhile, warned Kennedy when it learned of his postgame prayers that his activities likely violated the establishment clause, which prohibits the government from endorsing a religion.

The court fight involving Kennedy's postgame prayers at midfield attracted a bevy of friend-of-the-court briefs, including from former NFL players and professional and collegiate athletes who came down on both sides of the debate.

In an interview with CBS News on Monday, Kennedy thanked his supporters and said he grateful that the case was finally over, calling decision a "great ruling for America."

"People of faith or no faith, everybody has the same rights, and that is what the Constitution is all about," Kennedy said. "It's rights for all Americans."

Writing for the liberal minority on Monday, Justice Sonia Sotomayor said the Constitution does not authorize public schools to embrace Kennedy's conduct, and wrote that the majority's opinion rejects "longstanding concerns" surrounding government endorsement of religion.

"Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment," wrote Sotomayor, joined by Justices Stephen Breyer and Elena Kagan. "The court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause's protection for individual religious exercise while giving short shrift to the Establishment Clause's prohibition on state establishment of religion."

Kelly Shackelford, head of the group First Liberty, which represented Kennedy, celebrated the Supreme Court's decision, calling it a "tremendous victory" for him and religious liberty.

"Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired," Shackelford said in a statement.

But Rachel Laser, the president and CEO of Americans United for Separation of Church and State, warned the decision by the court "represents the greatest loss of religious freedom" in generations.

"Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as 'personal' and stopping public schools from protecting their students' religious freedom," she said in a statement. "It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack." . . .

Kennedy chose not to reapply for his coaching position at Bremerton High School and sued the district in August 2016 for violating his First Amendment rights to free speech and free exercise of his faith.

The 9th U.S. Circuit Court of Appeals sided with the school district, and Kennedy appealed to the Supreme Court for the first time. In 2019, the high court rejected his case, with four of the court's conservative justices saying it was premature for the court to consider the legal fight.

After additional proceedings, Kennedy again lost in the lower courts. He asked the Supreme Court for a second time to hear the case, and the justices agreed to do so in January.

The super-majority of six Roman Catholics on the Supreme Court are commonly referred to as "conservatives." They are anything but "conservative" in the true meaning of the term. Conservatives do not make radical changes. To the contrary they "conserve," and stare decisis [the legal principle of determining points in litigation according to precedent.] The lawless abandon with which these six Roman Catholics are overturning precedents is frightening; and every overruling of precedent reveals the enforcement of Rome's determination to control all government. The following report names the precedents that the Kennedy v. Bremerton School District case overturned:-

What the Supreme Court’s football coach ruling means for schools and prayer (June 27, 2022)

The Supreme Court ruled 6-3 on Monday in support of a high school football coach who knelt on the 50-yard line and prayed after games, paving the way for a new landscape concerning the role of religion in public schools.

The court’s conservative majority sided with Joseph Kennedy and against the Bremerton School District in Seattle, agreeing that the coach’s First Amendment rights were violated when the district placed him on leave for violating a policy prohibiting staff from encouraging students to engage in prayer.

Kennedy celebrated the win, telling Fox News’s “The Faulkner Focus” that he “can’t stop smiling.”

“It just feels good to know that the First Amendment is alive and well,” he said.

The ruling contrasts with two precedents the Supreme Court issued in the 20th century that prohibited school-sanctioned prayers in the classroom and the reading of the Bible in public schools as part of the wall between church and state.

It also brings an end to the 1971 precedent Lemon v. Kurtzman, which created a test to gauge church-state separation policies in public schools. That case has been scorned by conservatives as biased against religious interests.

Courts have long used those precedents to rule on similar cases, so the Supreme Court’s ruling is likely to launch a pathway for new religious policies in public schools.

In her dissent, liberal Justice Sonia Sotomayor argued Monday’s ruling sets a new precedent that “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state.”

“Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection,” she added in an opinion backed by liberal Justices Stephen Breyer and Elena Kagan.

The concept of separation between church and state is embedded in the Establishment Clause in the Bill of Rights, which says, “Congress shall make no law respecting an establishment of religion.”

Before 1962, however, dozens of states enforced religious policies in public schools, and some even required the Bible to be read in classrooms.

The Supreme Court ruled in Engel v. Vitale in 1962 for the first time that states cannot recite prayers in schools, arguing it was a violation of the Establishment Clause. A year later, the high court ruled in School District of Abington Township, Pennsylvania v. Schempp that state officials also cannot read the Bible or recite the Lord’s Prayer in classrooms.

After Lemon v. Kurtzman in 1971, states were required to follow a three-pronged test when enacting statutes and policies in schools involving religion. Chief Justice Warren Burger’s test forced states to ensure policies have a secular legislative purpose, don’t promote or inhibit religion, and don’t involve “excessive government entanglement with religion.”

Monday’s ruling effectively overrules the Lemon v. Kurtzman test.

It does not overrule Engel v. Vitale or School District of Abington Township, Pennsylvania v. Schempp, but states could use the new Supreme Court precedent to apply policies similar to the coach’s prayer movement.

The conservative court’s ruling also signals a movement toward fewer restrictions between church and state overall, according to Jeffrey Toobin, the chief legal analyst for CNN.

“This is a case where they are moving the law, incrementally, in a very clear direction to allow more state involvement in religion,” Toobin said on Monday. “It can be with regard to prayers in schools. It can be in regard to money going into religious organizations or to exempt religious organizations from government mandates.”

In the case of Kennedy v. Bremerton School District, the coach grappled with the school district over how pronounced his prayers were in influencing students.

Kennedy began kneeling and praying on the football field after school games in 2008, over time attracting more and more students to do so with him. The school district eventually told Kennedy to stop. When the coach defied their orders, officials placed him on administrative leave.

Kennedy filed a lawsuit, arguing his rights to free speech and religion were violated by the policy. The school district said the coach led a public demonstration of government-endorsed religion and that students were pressured to pray with Kennedy because they might risk losing playing time.

Justice Neil Gorsuch, writing for the majority, said the Bremerton School District allowed secular speech but not religious speech on school grounds, which he called a form of “discrimination” that the Constitution “neither mandates nor tolerates.”

“Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Gorsuch wrote. (Underscored emphasis added.)

In the same track of undermining the constitutional denial of government funding for religious institutions, was the following decision reflecting a Supreme Court hell-bent on demolishing the wall of separation between Church and State:-

Supreme Court rules for parents seeking state aid for religious schools (June 21, 2022)

Supreme Court says state’s refusal to fund church schools in some cases amounts to religious discrimination.

WASHINGTON — The Supreme Court on Tuesday extended its support for religious schools, ruling that parents who send their children to these institutions have a right to tuition aid if the state provides it to similar private schools.

The 6-3 decision in the Carson vs. Makin case from Maine could open the door to including religious schools among the charter schools that are privately run but publicly financed.

Previously the high court had said that giving public funds to church schools violated the 1st Amendment’s ban on an “establishment of religion.”

But over the last five years, the court’s conservative majority has flipped the equation and ruled it is unconstitutional discrimination to deny public funds to church schools simply because they are religious.

Maine has an unusual subsidy program because many of its small towns do not have a public high school. In such cases, students may enroll in a private school and the state pays their tuition.

Since 1980, however, the state has not extended these subsidies to students in church schools, apparently concerned it would be unconstitutional to do so.

The court majority said Tuesday that was a mistake.

Chief Justice John G. Roberts Jr. said that discrimination based on religion “was odious to our Constitution and could not stand.”

“The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” he said, and thereby violates the 1st Amendment’s protection for the “free exercise of religion.”

In dissent, the three liberal justices accused the majority of knocking down the barriers against government support for religion.

“This court continues to dismantle the wall of separation between church and state that the framers fought to build,” said Justice Sonia Sotomayor. “This court should not have started down this path five years ago. ... Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” she said, closing her dissent “with growing concern for where this court will lead us next.”

In response, Roberts rejected the idea that the court’s opinion means Maine “must” fund religious education. “Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it,” he said.

Among the six conservative justices in the majority, all of them attended Catholic schools except for Justice Samuel A. Alito Jr., who went to public elementary and secondary schools in New Jersey.

Tuesday’s ruling highlights the court’s profound shift on religion.

The conservative justices cast aside the principle of church-state separation and argued it grew from an anti-Catholic bias in the late 19th and early 20th centuries.

“It was an open secret that ‘sectarian’ was code for ‘Catholic,’” Roberts wrote in 2020, describing the common state laws that prohibit sending tax money to schools affiliated with a church. These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana.

Justices Clarence Thomas and Neil M. Gorsuch have said they would go further and uphold laws or policies that favor religion.

“The modern view which presumes that states must remain ... virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote in an earlier school case. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”

The court’s opinion on Tuesday says nothing about charter schools, but some legal experts on the right predict they may face a challenge if school officials refuse to consider funding religious options.

“The court said again no state may set up a program of private school choice and exclude funding for faith-based schools,” said Nicole Garnett, a Notre Dame law professor. . .

Advocates of church-state separation called the ruling a major setback.

“This ruling deals another major blow to religious freedom. It entirely ignores the Establishment Clause and further erodes the wall between separation of church and state,” said Jesse O’Connell, a vice president of the Center for American Progress. . . (Underscored, italicized, and enlarged font emphasis added.)

The grievance openly expressed by Chief Justice Roberts is startling. There is an element of resentment in his words: “It was an open secret that ‘sectarian’ was code for ‘Catholic . . .’". There is also an indication of confidence that the "anti-Catholic bias in the late 19th and early 20th centuries" has been reversed. This in fact was the goal of the Roman Catholic hierarchy in the late 19th century, continuing into the 20th century, throughout the 20th century, and into the 21st century as evidenced by Justice Roberts' implied confidence that anti-Catholic bias no longer exists in America. Therefore the radical Roman Catholic super-majority controlling the Supreme Court is a predictor of the ultimate complete demolition of separation of Church and State.