When one branch of the federal government is twisted into a near constant case of gridlock and inaction, and another turns over every four to eight years and then reverses most everything that had just been accomplished, the third branch takes on outsized importance. The Supreme Court will always be able to reach a decision on matters before it because with nine justices there are no ties or filibusters, and those decisions usually last indefinitely. So the Supreme Court, the branch that doesn’t have an army like the President and doesn’t control any of the $5 trillion federal budget like Congress does, gets the last word on many important issues.
In recent months the Supreme Court has taken up a number of “religious freedom” cases, a term that means different things to different people. As noted in this space several weeks ago, the Court has already heard arguments on a case in Maine that may take the country even farther down the slippery slope of taxpayer funding for religious schools than we have already gone.
The question there is, does taxpayer money “establish” a particular religion if it supports a particular religion’s schools, or is your “free exercise” of religion prohibited if you can use taxpayer money to send your children to certain private schools but not the religious ones? During oral arguments, the majority of the justices seemed to side with the latter argument. When this decision comes down in the spring it could reshape the landscape for government money going to faith-based schools.
Last week the Court heard arguments in a case from Boston where three flags fly outside City Hall: the American flag, the Massachusetts flag, and the City flag. But occasionally on the third pole, in place of the City flag, they fly a rotating selection of flags honoring various days, civic groups, and events. 284 different flags over 12 years flew on the third pole without any civic group being denied, and then the City turned down a request to fly a Christian Flag for an event that would feature short speeches by some Boston clergy. The City argues that this would amount to endorsing a religion. The flag group claims that their free speech was denied. The Supreme Court heard arguments this week on whether the flag displays amounted to a public forum where speech could not be curtailed, or whether the rotating flags were official speech by the City which could and should be moderated. A majority of the justices seemed to think it was a public forum. Decision yet to come.
Now the Court has announced that it will hear a case involving a high school football coach who originally led prayers after games with his players on the fifty yard line. When told that this was a violation of school policy he began to pray there after his players had left the field. His contract was not renewed. One stated reason for not renewing the contract was that the coach was not supervising the team after the game in accordance with his official coaching duties. The larger issue, of course, is whether a school employee with considerable influence over students is praying while on the job.
The coach says he was fired for praying privately. It’s difficult to think of a less private location after a football game than the 50 yard line, except maybe for the parking lot. He wasn’t praying on the sideline where he was when the game ended, or in his car or his office. He chose to do it at midfield when he should have been in the locker room with the team. (There is also the question of why pray after the game instead of before, but that isn’t part of this case.)
The Ninth Circuit Court of Appeals unanimously ruled against the coach, but he appealed this apparently reasonable decision to the Supreme Court and they have decided to hear it. Given the growing track record of the conservative justices on matters of “religious freedom,” we should all be worried about what their ruling will say about prayer in school settings, and by extension in other government settings.
There are a few reasons to be slightly optimistic about this Court. Last summer the Court ruled very narrowly that the City of Philadelphia was wrong to end its contract with Catholic Charities over the group’s foster care policies. The ruling could have been much broader and therefore much worse. This week the Court decided, after extensive discussion, not to hear a case in which the City of Fredericksburg, Virginia turned down a request by a church for a property tax exemption for property where one of its ministers lived. The City said the person didn’t meet its definition of a minister so the Church went to court.
The Fredericksburg decision shows that the Supreme Court cannot hear every case it might want to; there aren’t enough days on its calendar for that. Therefore, many cases like Fredericksburg are decided at the lower levels. President Biden has had more judges confirmed in his first year for district and circuit court vacancies than any president in the last 40 years. That’s good news for those seeking more diversity of opinion and background in the nation’s judicial system. But if the Democrats lose the Senate majority in 2023 that process will grind to a halt under Mitch McConnell. He would decide which nominees get a confirmation vote. And if there were a Supreme Court vacancy, we know how that turns out. With McConnell as majority leader Republican Presidents always get their nominees confirmed and Democratic Presidents rarely do. So if there is a Senate campaign in your state this year, get involved. It matters.
To help mitigate any lasting damage the Supreme Court may cause to true religious freedom, the Secular Coalition for America lobbies Congress and the Biden administration on your behalf to ensure all Americans regardless of religious affiliation are treated equally under the law. This necessary work depends on your support. Please click here if you would like to help us protect and defend true religious freedom in 2022.
Director of Policy and Government Affairs
Secular Coalition for America