Written by William Swap for the North America Section.
William Swap explores how the US Supreme Court attempts to find balance between the religious freedoms of public actors whilst also upholding the constitutionally guaranteed secularity of the US state. Read on to learn more about this situation and how it raises questions.
The 1st Amendment of the US Constitution continues to receive reclarification in the 21st century. The US Supreme Court faces the daunting task of striking a pivotal balance between the Establishment Clause and the Free Exercise Clause – both are constitutional provisions central to ensuring that fundamental private and public interests exist simultaneously amid a challenging constitutional backdrop. Much of the 20th century observed the Supreme Court clarifying the scope of the fundamental First Amendment right to religious expression. However, the problem of reconciling these rights with the Establishment Clause – barring state establishment or endorsement of religion – against the backdrop of displays of religious expression by public actors, indeed still proves challenging in the 21st century. Recent landmark cases have demonstrated the Supreme Court’s tendency to reinforce absolute religious freedom in public settings, sparking criticism that this recent trend reflects the Court’s more conservative, or ‘originalist’ stance regarding First Amendment issues and the increased tendency to depart from long-established precedent.
Whilst these suggestions carry merit, US Supreme Court typology on First Amendment free exercise continues to produce uncertainty. In particular, the court must navigate the question of whether to restrict religious expression in the face of legitimate public interest and the maintenance of a strict separation of religion and state.
In these respects, the case of Kennedy v. Bremerton School District (2022) has re-ignited such uncertainty and acts as the focus of these discussions. The case has given ammunition to critics who argue that a more judicially conservative court has tipped the scales in favour of a pro-religious approach – at the expense of ensuring a strict separation between church and state pursuant to the Establishment Clause.[1] In Kennedy, the court was asked to consider whether a school football coach’s displays of religious expression in the form of prayer after public school matches conflicted with the constitutional prohibition of state endorsement of religion.[2] The court, ruling in favour of the Appellant, reasoned that Mr Kennedy’s religious exercise was an expression of private, as opposed to government speech. Justice Gorsuch – writing for the court– justified this decision by arguing that despite the fact that Kennedy was working in his capacity as a ‘public actor’, as Mr. Kennedy did not convey a government-endorsed message, nor impose his religious expression on others, his actions were constitutionally compliant. Nevertheless, the ruling in Kennedy came at the expense of abandoning the long-established Lemon test which set out the criteria for determining whether government action – including the conduct of public actors – violates the Establishment Clause. In Kennedy, Justice Gorsuch ruled that Kennedy was acting as a private citizen in which his religious expression did not come ‘within the scope of his [public] duties’[3]. In forming this conclusion, the Court characterised the outdated lemon test as ‘abstract’, preferring that cases which concern a dispute between the Establishment Clause and Free Exercise Clause be decided in accordance with broader factors, including their ‘original’ meaning and observance of the founder’s intentions. This approach signalled the long-awaited, yet stark departure from the use of judicial ‘tests’ employed in the 20th century to expand and clarify the scope of the First Amendment.
The judgement of the Court in Kennedy reflects the emergence of the concept of ‘originalism’: an approach adopted by some of the Justices, reflective of the move towards strict constructionism as the dominant method of constitutional interpretation amongst the more judicially conservative members of the bench. The move towards interpreting the US Constitution in a literal sense is demonstrative of the gradual shift away from the liberal and more ‘loose’ constitutional approach endorsed by the US Supreme Courts of the 1950s, notably the Warren Court. Whilst the shift in judicial approach may be temporary, it remains clear that from cases such as Kennedy, that the US Supreme Court appears less willing to constrain themselves to applying established ‘tests’ developed by past precedent, gradually departing from the incremental approach enshrouding First Amendment case law. Constitutional scholar Caroline Corbin rebukes the helpfulness of what she coins ‘new originalism’ in that it fails to constrain judges; rather, it emboldens their judicial discretion and ‘allows judges to be outcome driven, while claiming objectivity’.[4] There is no doubt that this approach emerged in reaction to the civil rights era – a period where the courts were willing to expand the scope of judicial interpretation by establishing core civil rights protections characteristic of that era. The 20th century observed notable expansion of the First Amendment through the formation of strict tests for example the Lemon test – an approach to First Amendment interpretation that has since disintegrated.
To summarise, the decision in Kennedy should be, in many respects, be regarded as a landmark judgement. Nonetheless, it is evocative of the uncertain landscape where constitutionally protected free religious expression sits, by which the court must simultaneously show deference to the Establishment Clause in cases where public officials openly express their religious beliefs.[5] Kennedy sits in contrast to decisions barring religious prayer in state-controlled environments, such as the decision in Santa Fe Independent School District v. Doe (2000) in which the court held that a school district’s student-led prayer policy violated the Establishment Clause.[6] In such cases, the loose distinction drawn on by the court appears to be whether the religious speech in consideration is ‘private’ or ‘public’. In the absence of the old judicial tests, it is clear that US Supreme Court continues to play the volatile game of striking a balance between the religious freedoms of public actors whilst also upholding the constitutionally guaranteed secularity of the US state.
References
[1] David Smith, ‘Alarm as US Supreme Court takes a hatchet to church-state separation’ The Guardian (Washington 2 July 2022) <https://www.theguardian.com/law/2022/jul/02/us-supreme-court-religion-church-state-separation> accessed 20 November 2023
[2] Kennedy v. Bremerton School District 597 US (2022)
[3] Ibid
[4] Caroline Mala Corbin, ‘Free Speech Originalism: Unconstraining in Theory and Opportunistic in Practice’ (2023) University of Miami Legal Studies Research Paper 4466315, 3-10 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4466315> accessed 20 November 2023
[5] Isabella Henry, ‘Kennedy v. Bremerton School District: Throwing a Red Flag for the Public-Employee Speech Arena to Challenge the Court’s Hail Mary, (2023) 82 Md. L. Rev. 1067
[6] Santa Fe Independent School District v. Doe 530 US 290 (2000)
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