A Momentous Year for Religious Liberty at the Supreme Court | Opinion

In my 33 years of advocating for religious liberty, I have never seen a year like this at the U.S. Supreme Court.

This term, the Supreme Court decided three important religious liberty cases. Each case firmly defended the right of people of faith to be free from anti-religious discrimination at the hands of government officials. In each case, the government tried to defend its religious discrimination by relying on a mistaken understanding of the Establishment Clause. In each case, the Court rejected any interpretation of the First Amendment that treats people of faith as second-class citizens, or religious expression as a second-class right.

First, the Supreme Court this week issued a truly landmark ruling in favor of Joe Kennedy, a high school football coach who was fired by his school district for kneeling in prayer at the 50-yard line after games. My firm, First Liberty Institute, along with former U.S. Solicitor General Paul Clement, represented the coach.

The Court's opinion grants a modest victory for the coach. It simply allows Coach Kennedy to return to a job he loves, coaching a team he loves. It allows him to continue to keep a personal commitment he made to God that he would offer a prayer of thanksgiving after games. The opinion reasoned that if the Coach could take 30 seconds after a game for other personal activities, such as taking a phone call, then he must be allowed to use that time to kneel in prayer. The school could no longer single out religious expression for uniquely disfavored treatment.

Yet, at the same time, the opinion's reasoning grants a sweeping victory to people of faith across the country. For the first time, the Supreme Court announced definitively that the so-called "Lemon test" is no longer good law. Lemon was a misguided legal balancing test enacted by the Court 50 years ago that had the practical effect of turning public schools into religion-free zones. The test caused many school administrators to mistakenly believe they had a "duty to ferret out and suppress religious observances," often leading them to infringe upon the private religious rights of teachers and students. Now, the Supreme Court has clarified that, far from being required, this sort of censorship actually amounts to unconstitutional anti-religious discrimination.

Fencing surrounds the U.S. Supreme Court as
Fencing surrounds the U.S. Supreme Court as it nears the end of its term, June 27, 2022 in Washington, D.C. Kevin Dietsch/Getty Images

The Constitution protects the rights of all public school teachers and coaches to engage in private religious exercise on school property. They no longer have to hide their religious identities out of the view of students. Private religious identities and expression are to be respected, rather than excluded.

In another case, decided last week, the Supreme Court ruled in favor of school choice. There, a group of parents, represented by the Institute for Justice and First Liberty, wanted to send their children to private religious schools, and they sought tuition assistance from the state of Maine. The state refused, declaring religious schools ineligible. The Supreme Court held that excluding religious schools from a state's general tuition assistance program because those schools teach from their religious perspectives amounts to unconstitutional religious discrimination.

Finally, earlier this term, the Court concluded that the City of Boston violated the Free Exercise Clause by excluding the Christian flag from its municipal flag-flying program. The city opened its flagpole for use by members of the public. After approving 284 flag-raisings by private organizations—allowing flags of various countries, ethnicities, political positions, and cultural beliefs—the city turned away a religious flag. The Court, however, said that excluding otherwise-eligible flags from the city's flag forum because they are religious in nature amounts to unconstitutional religious discrimination.

In my practice, government actors often refuse to recognize that people of faith and religious expression are entitled to equal treatment under the law. Through these opinions, the Supreme Court has made it clear that the Constitution does not "'compel the government to purge from the public sphere' anything an objective observer could reasonably infer endorses or 'partakes of the religious.'" Instead, the "Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike." Perhaps now, government officials will understand that anti-religious discrimination is unconstitutional in any form—whether in the classroom, on the football field, or at the flagpole.

Kelly Shackelford is president, CEO, and chief counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.

The views expressed in this article are the writer's own.