The relationship between religion and public education is complex. A critical source of legal authority related to religion and public education is the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” These two clauses, referred to as the Establishment Clause and the Free Exercise Clause, are at the heart of legal cases dealing with issues such as prayer and funding in schools. On the one hand, public schools have an obligation not to endorse religion and at the same time, they have an obligation to accommodate the sincerely held religious beliefs of students and employees. In this article, we discuss two significant education cases related to religion that the Supreme Court decided in June 2022.

Carson v. Makin

The first case originates from a Maine law that sought to address gaps in access to schools, particularly in rural areas that were unable to provide an education for certain grade levels. To address this problem, Maine passed legislation that set up three ways that students could receive a public education at the secondary level (Maine Department of Education, n.d.):

  1. Attend a school in the school district the student resides in.
  2. If option 1 is unavailable, then attend a public or private school that has a contract with the district that allows students to attend.
  3. If options 1 and 2 are unavailable, then choose a school to attend that meets certain requirements set by the state, regardless of whether it is public or private.

A key caveat of option three was that private schools receiving money through the third option must be nonsectarian, meaning that they cannot provide religious-based education. Two families sued Maine over this provision because they wanted to send their children to private, sectarian schools using the tuition assistance program. The question in the case was whether the exclusion of private, sectarian schools from the tuition assistance program violates the Free Exercise Clause of the U.S. Constitution.

The majority opinion was written by Chief Justice John Roberts (joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). The opinion primarily relied on two notable cases from the last few years: 1) Espinoza v. Montana Department of Revenue (2020), which held that states cannot ban public scholarship money from being used at religious schools solely because it is a religious school; and 2) Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), which held that a state cannot deny public benefits to a religious institution that they would be eligible for were they not a religious institution. In Carson v. Makin, the Court held that when a neutral benefit, such as tuition assistance, is used by individuals for religious ends, the Establishment Clause is not violated. As a result, Maine’s interest in promoting stricter standards for separation of church and state than the U.S. Constitution requires does not count as a compelling interest.

The majority opinion also addressed reasoning from the Court of Appeals for the First Circuit and Justice Stephen Breyer’s dissent that tried to distinguish this case from prior precedent. Espinoza and Trinity Lutheran dealt with status-based discrimination, with the status being religion. In this case, however, the Court of Appeals stated that this is use-based discrimination, with the use being for religious purposes. The Court of Appeals held that this use-based discrimination did not violate the U.S. Constitution. The Supreme Court directly rebuked this concept, stating that it does violate the Constitution.

There were two dissenting opinions in this case. Justice Breyer’s dissent (signed onto by Justice Elena Kagan in whole and Justice Sonia Sotomayor in part) focused on issues that distinguished this case from Espinoza and Trinity Lutheran. Part of his dissent centered around the differences between the aforementioned status- and use-based discrimination. Justice Breyer argued that the two private, sectarian schools’ curricula contradict the goals of Maine’s public school curriculum, which is civic-based. He asserted that Maine’s legislators recognized these differences when writing the program into law and sought to incorporate the neutrality the Establishment Clause requires.

Justice Sotomayor’s dissent took a different approach than Justice Breyer, instead asserting that the decisions in Espinoza and Trinity Lutheran were incorrectly decided. She argued that the Supreme Court’s decision, paired with recent rulings, had eroded precedent surrounding the Establishment and Free Exercise Clauses that had been intact for decades. She concluded by stating that the Court’s decision makes the “separation of church and state … a constitutional violation.”

Kennedy v. Bremerton

The second case involves Joseph Kennedy, a high school football coach who prayed at mid-field after games. At first, Kennedy prayed on his own, but eventually players joined him. He also offered motivational speeches with religious messages to players, which continued for years. However, when the school district learned of the practice, it became concerned that Kennedy’s actions amounted to an Establishment Clause violation under prior case law, which focuses on the endorsement or the “purpose, effects, and potential for entanglement with religion,” as the Court held in Lemon v. Kurtzman (1971). The district noted two issues: Kennedy provided motivational talks with explicit religious references, and he led students and staff in prayer in the locker room. 

Kennedy agreed to discontinue the practices identified by the district but wished to continue a quiet post-game prayer after students left the field. In follow-up correspondence, the district prohibited Kennedy “from engaging in ‘any overt actions’ that could ‘appea[r] to a reasonable observer to endorse … prayer … while he is on duty as a District-paid coach.’” After continuing to engage in prayer after games, Kennedy was placed on administrative leave.

Kennedy sued in federal court, alleging violations of Free Speech and Free Exercise under the First Amendment. The district court and the Ninth Circuit Court of Appeals ruled in favor of the school district and Kennedy appealed to the Supreme Court. Given the topic of this article, we will focus on the Free Exercise portion of the case.

A majority of the Court (Justices Gorsuch, Roberts, Thomas, Alito, Barrett, and Kavanaugh) ruled in favor of Kennedy. Writing for the majority, Justice Gorsuch focused on Kennedy’s silent prayer and determined that there was no evidence of coercion. Moreover, the Court found that since other employees were able to engage in secular activities (such as checking email) during work time, the district’s response to Kennedy was not neutral or generally applicable and was instead motivated by the religious nature of Kennedy’s actions. To reach its decision, the Court abandoned early case law such as Lemon v. Kurtzman and the endorsement test, adopting what it referred to as a historical approach.

Justices Thomas and Alito drafted separate concurring opinions. Justice Thomas emphasized the need to clarify the right to free exercise for public employees in comparison to the general public and the legal burden that must be met by government entities when restricting an employee’s free exercise of religion. Justice Alito’s concurrence focused on the free speech rights of public employees and clarified that Kennedy was acting in a “purely private capacity.”

While the majority opinion focused on the quiet individual prayer, the dissent, written by Justice Sotomayor (joined by Justices Breyer and Kagan) reasoned that Kennedy’s quiet, private prayer can’t be viewed in isolation. Instead, the dissent argued that the legal analysis must account for Kennedy’s “longstanding” practice of prayers with the team and motivational speeches with religious content. The dissent was concerned about coercion and the likelihood that a reasonable observer would view the overall facts as evidence of the school district’s endorsement of religion. The dissent also argued that the majority overruled important precedent (e.g., Lemon v. Kurtzman) and disregarded “longstanding concerns surrounding government endorsement of religion.”

Conclusion

In both cases, the majority ruled in favor of free exercise arguments. Nonetheless, the majority and dissenting opinions in each of these cases illustrate starkly different legal analyses. They represent a significant shift from past legal questions that focused on permissive policies such as “May we fund religious schools?” to contemporary questions that implicate mandates such as “Must we fund religious schools if funding is available to nonreligious schools?” From these two cases, the wall of separation between church and state remains unclear. What is clear, however, is that a majority of the Court is amenable to free exercise arguments, and we will likely see future related cases.

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Michael J. Cattell Jr. is a sophomore at Pennsylvania State University with an interest in education policy.

References

Carson v. Makin, 142 S. Ct. 1987 (June 21, 2022).

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).

Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022).

Lemon v. Kurtzman, 403 U.S. 602 (1971).

Maine Department of Education. (n.d.). Approval for Receipt of Public Funds by Private

Schools. maine.gov/doe/funding/reports/tuition/faqs#:~:text=At%20this%20time%2C%20Maine%20does,Wards%20or%20State%20Agency%20Clients.

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).