August 4, 2022
by John Kaempf

The Supreme Court overruling Roe v. Wade this year got most of the attention. But its decisions in favor of religious liberty in the Carson and Kennedy cases are even more important to people and institutions of faith.

As discussed below, and as you have likely heard, this year, the United States Supreme Court overruled the Roe v. Wade abortion decision. But concerning religious freedom rights, two other cases decided by the Supreme Court this year are more important.

First, in the case of Carson v. Makin, in a victory for the “school choice” movement, the Supreme Court addressed a Maine law that provides tuition assistance to parents of students in rural areas that do not operate their own high school—so they can afford to send their children to a school elsewhere. (Maine is the most rural State in the Union.) That law “imposed a new requirement that any school receiving tuition assistance payments must be a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

Thus, Maine provided tuition assistance to parents in rural areas if their children attended a private school, but only if it was a non-religious private school.

The first constitutional question the Supreme Court addressed in the Carson case is whether this Maine law violates the Free Exercise Clause of the First Amendment to the United States Constitution. The First Amendment provides, in relevant part, that no law shall be made “prohibiting the free exercise” of religion.

The Supreme Court in Carson held that the Maine law violates the Free Exercise Clause. It ruled that a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The Court in Carson noted that “we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” A “State cannot exclude individuals because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

The First Amendment also provides that no law “respecting an establishment of religion” shall be made— thus called the “Establishment Clause.”

The Court in Carson also held that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

So, the lesson for churches and religious schools from the Carson decision is to push back against any governmental assistance program that provides benefits to public and private entities alike, but only excludes religious entities. That violates the First Amendment.

Second, in Kennedy v. Bremerton School District, the Supreme Court held that a public school district violated the First Amendment Free Exercise of Religion and Free Speech rights of a high school football coach when it fired him for praying quietly on the field after games.

Coach Kennedy did not seek to direct any prayers to students or require anyone else to participate.

The Supreme Court noted that the school district restricted the coach’s actions in part because of their religious character, so its policies were not “neutral” toward religion—as the Constitution and Supreme Court precedent require.

The Court also held that the coach’s speech was “private” speech, not “governmental” speech.

The Court further held that the school district was wrong to contend that Coach Kennedy’s praying “coerced” students to pray. It held that his private religious exercise did not cross any line separating protected private expression from impermissible government coercion.

Thus, the Kennedy decision is a win for religious freedom in the public arena. It confirms that the Constitution does not require that public spaces be scrubbed of all religious speech and practices.