In its late-June flurry, the Supreme Court ballooned the Second Amendment, crippled the Environmental Protection Agency’s ability to address climate change, and scrapped the constitutional right to abortion. These rulings — especially the chaos-inducing overruling of Roe v. Wade — have dominated the headlines. Meanwhile another seismic change to American law has flown under the radar: the six-justice conservative majority’s campaign to tear down what Thomas Jefferson called the “wall of separation between church and state.”
Why did Kennedy v. Bremerton School District (involving a praying football coach), and Carson v. Makin (a school funding case) ruffle fewer feathers? It seems to have been by design. The conservative bloc did not undermine the first 10 words of the Bill of Rights — ”Congress shall make no law respecting an establishment of religion” — with anything like the glee or precision with which Justice Samuel Alito shredded abortion rights. Rather than renounce its Establishment Clause precedents as “egregiously wrong from the start” (as Alito did for Roe), the conservative bloc presented Kennedy and Carson as unremarkable decisions flowing ineluctably from precedent.
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These decisions are no such thing. Kennedy and Carson do not respect prior rulings; they effectively abandon at least four of them. And the decisions brazenly mischaracterize two more.
Start with Kennedy, the case asking whether a school board violated a football coach’s religious liberty when it fired him for praying after games, often surrounded by his players or members of the opposing team, at the 50-yard-line. The Supreme Court said the coach’s supplications were personal, not official, and the school board’s concerns about mixing faith and football were misplaced. Those worries, Justice Neil Gorsuch wrote in his majority opinion, were based on Lemon v. Kurtzman, a 1971 precedent barring policies that are motivated by a religious purpose, promote or inhibit religion, or excessively entangle religion and state.
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The Supreme Court, Gorsuch tells us, “long ago abandoned Lemon and its endorsement test offshoot.” But he never pinpoints when the alleged abandonment occurred. Instead, he obfuscates the matter by citing two recent cases as proof. But neither the 2019 case blessing a large private cross on public land nor the 2014 ruling allowing prayer at town-board meetings overrule Lemon. Conservatives have long reviled Lemon; some liberal justices have agreed Lemon cannot resolve all questions involving the Establishment Clause. But nowhere did these opinions state that Lemon is incapable of resolving any such cases. And Lemon has never been officially overruled.
Gorsuch denigrates a 1992 precedent, too, but with less overt disdain. In Lee v. Weisman, the Supreme Court ruled by a 5-4 vote that even brief prayers at public-school graduations indirectly coerce students and thereby violate the Establishment Clause. The coercive effect would seem to be stronger when student athletes are under the eye of their football coach than when they are in robes ready to graduate. Indeed, some players said they felt compelled to join the prayer circle to secure playing time at the next game. Gorsuch cherry-picks a quote from Lee to suggest that witnessing others’ religious expression is “part of learning how to live in a pluralistic society.” But read on, as Justice Sonia Sotomayor does in her dissent, and you find Lee’s conclusion (in the very same paragraph) that “[t]his argument cannot prevail” when it comes to school prayer because the First Amendment bars “state intervention in religious affairs.”
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A few days before Kennedy came down, Chief Justice John Roberts engaged in some judicial gaslighting of his own. In Carson, Roberts concluded that Maine had violated parents’ religious liberty by covering tuition bills for secular, but not religious, private schools. (The program is designed for families in sparsely populated districts lacking a public high school.) In the past, states like Maine committed to the separation of church and state were empowered to build a higher wall than the Constitution requires. In 2004, the Court found in Locke v. Davey that Washington state could provide scholarship funds for all courses of study except devotional theology without violating the rights of a student preparing for the ministry. With only Justices Antonin Scalia and Clarence Thomas in dissent, Chief Justice William Rehnquist found “play in the joints” between protecting the free exercise of religion and protecting against establishment. Seven justices — including the very conservative Rehnquist — said the Constitution affords states discretion in how they pursue religious freedom.
Just as Gorsuch squashes Lemon without overturning it, Roberts steamrolls Locke while claiming to be faithful to it. He also creatively reinterprets two recent rulings he authored involving religious institutions’ access to the state treasury. When Roberts spoke for the court in 2017 to say that church-owned preschools cannot be excluded from grants for playground resurfacing, he insisted the case was just about preventing scraped knees — an indisputably secular goal. When he decided in 2020 that religiously affiliated schools couldn’t be roped out of state grants, he noted the ruling was only about identity-based discrimination and had nothing to do with funding religious instruction. So it was surprising to read, in 2022, that these cases “suffice” to resolve Carson, which requires state money to fund institutions whose mission is to inculcate religious beliefs.
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So in two late-June rulings dropped amid a barrage of higher-profile decisions, the Supreme Court decimated the Establishment Clause sotto voce. The consequences could be vast: an invitation to reintroduce long-banned forms of prayer in public schools and — more worryingly still — a fight for scarce education funds that pits faith against faith and religious indoctrination against public schooling. Why was the conservative supermajority reluctant to own up to this revolution? Maybe to avoid stirring yet more disquiet among an American public that increasingly questions its legitimacy. Whatever the reason, Americans should recognize how dramatically the Court has laid waste to Jefferson’s wall.
Steven V. Mazie is the Supreme Court correspondent for The Economist and professor of political science at Bard Early College in New York. His most recent book is “American Justice 2015: The Dramatic Tenth Term of the Roberts Court.”
