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Toobin breaks down what Supreme Court opinion says about the right to religious freedom
01:46 - Source: CNN

Editor’s Note: Barbara A. Perry is Gerald L. Baliles Professor and Director of Presidential Studies at UVA’s Miller Center. She was a 1994-95 Supreme Court fellow and is the co-author of “Freedom and the Court: Civil Rights and Liberties in the United States.” Follow her @BarbaraPerryUVA. The views expressed in this commentary are her own. View more opinion on CNN.

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What an irony that the central character’s name in the Supreme Court’s most recent school-prayer drama is Joseph Kennedy, the same appellation as President John F. Kennedy’s father. Facing strong anti-Catholic sentiment, Kennedy, the first Irish Catholic to become president, felt compelled to proclaim in 1960 his adherence to strict separation of church and state, assuring opponents that his policies wouldn’t reflect his personal religious views or the teachings of his faith.

“I believe in an America where the separation of church and state is absolute,” the candidate told a meeting of Protestant ministers in Houston. “I do not speak for my church on public matters, and the church does not speak for me.”

Because the US Supreme Court’s current six-person majority (John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), all with conservative Catholic backgrounds, have expressed interest in historical bases for judicial decisions, it’s worth noting that Kennedy’s assertions not only preserved his political viability but reflected Jeffersonian ideals firmly embedded in our two-centuries-old constitutional cosmos.

The court’s ruling this week in Kennedy v. Bremerton School District ignores our founding values and eschews decades of its own precedents that enshrined them. Gorsuch’s majority opinion, joined by his five fellow conservatives, ruled that Kennedy, a football coach at a Bremerton, Washington, public school has First Amendment freedom of speech and religion rights to kneel and pray at the 50-yard line after games, surrounded by players and spectators. Allowing him to do so doesn’t violate the Constitution’s ban on state establishment of religion, according to the nation’s highest court.

The First Amendment’s clauses guaranteeing free exercise of religion and prohibiting government’s establishment thereof have been on a collision course since they entered the US Constitution in 1791. Simply put, does government allowance of religion in the public square constitute establishing it? To unravel this conundrum, Supreme Court justices have taken three different approaches:

Strict separation of church and state: This position hews most closely to Thomas Jefferson’s vision of a “wall” between government and religion that he adopted in 1802 to explain his agreement with a Connecticut Baptist association’s concept of religious liberty.

The Supreme Court first adopted the wall metaphor in an 1878 case upholding a federal law against polygamy in the territories. Justice Hugo Black became its most prolific champion, defining it explicitly in a 1947 case where he distinguished between allowing government reimbursement of bus fare to religious-school students’ parents and banning state aid directly to parochial schools. He applied it in 1962 to overturn compelled state-written prayer in public schools. Then-President Kennedy responded that parents could encourage their children to pray at home and in houses of worship.

Neutrality toward religion: Adopted as a judicial midpoint between separation and accommodation, Chief Justice Warren Burger developed the “Lemon test,” named for the party in a 1971 case that struck down Pennsylvania’s aid to religious schools. To maintain government neutrality regarding religion, a policy had to have a secular purpose, neither advance nor inhibit religion and avoid excessive entanglement between church and state.

Moderately conservative Justices Sandra O’Connor and Anthony Kennedy (no relation to the president or the football coach) added two more components to neutrality. States’ relation to religion should neither appear to endorse it nor coerce people, especially students, to participate in it. Applying this test, in 1992, Kennedy struck down the practice of prayers offered by clergy at public school commencements.

Accommodation of religion: Conservative justices believe that strict adherence to the separation approach violates the free exercise of religion. They view the First Amendment’s Establishment Clause as prohibiting the creation of a state church and raising public money to support it, which the founders knew privileged the official religion to the detriment of others.

The late Justice Antonin Scalia, a leading advocate of religious accommodation, argued in 1994, “Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.” Accommodationists now represent a half-dozen votes on the current Supreme Court.

In each of the four religion cases this term, supporting the football coach’s prayer at public school football games, allowing parents to use Maine’s tuition grants for religious school tuition, requiring Texas to permit a spiritual adviser to pray over and comfort death-row inmates at their executions and siding with a Christian group that wanted to be among those private organizations allowed to fly its flag outside of Boston’s City Hall, the court adopted an accommodationist posture. Arguably, the overturning of Roe v. Wade also reflects the triumph of a conservative religious viewpoint, though judicial norms prevent such an admission.

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    Brick by brick, if not by bulldozer, the wall between religion and government is collapsing. Does it matter? It does if the United States still wants not only to protect religion from government but government from religion.

    As the founders feared, when religious faith becomes the guiding force in politics, the historic American experiment in creating a pluralistic republic is most at risk. Allowing the utmost religious freedom, within the bounds of high walls between church and state, has spared the US from the kinds of religious wars that have plagued human history and riled modern nations.

    President Kennedy’s devotion to the Jeffersonian principle of separating religion and government to promote religious freedom has proven more salutary to the American regime than will be the desire to accommodate Coach Kennedy’s prayer spectacle at public school football games.