In Part’s Two and Three, I explained that the Supreme Courts decisions in West Virginia v EPA, and Dodds v Jackson Women’s Health affirmed constitutional limitations on the executive and judicial branches authority to usurp the exclusive power of the federal and state legislative branches to enact “general rules for the government of society”.
Two other cases decided last month re-affirmed that the power of legislative branches are also limited by the Constitution.
Both cases involve the First Amendment in the Bill of Rights. The first three clauses of that Amendment proscribe that government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” They are respectively known and the ‘establishment clause’ the ‘free exercise clause’, and the ‘free speech clause’.
It was well understood by the authors of those clauses to mean that government must stay out of religious practices. The ancestors of many of the authors had come to the new world to escape government persecution of their religious beliefs.
William Penn, founder of Pennsylvania, was the defendant in a famous English trial when he was prosecuted for “illegal preaching”. His acquittal, despite overwhelming evidence of his guilt, was based on the tradition of the “jury pardon” which dated from Magna Carta.
“Having been tried at the Old Bailey, Penn was initially acquitted by the jury, whose members were then chastised, fined and imprisoned for having returned a verdict of not guilty. Invoking Magna Carta, an incredulous Penn called from the dock, ‘It is intolerable that my Jury should be thus menaced; Is this according to the fundamental Laws? Are not they my proper Judges by the great Charter of England?”
The authors of the First Amendment were well aware of the Penn case, and intended to assure no such religious prosecutions could happen here. Despite those good intentions, some religious prosecutions occurred anyway – the most famous of which is probably the John Scopes “Monkey Trial” in 1925, when Scopes, a public school teacher, was prosecuted for teaching Darwin’s evolution theory.
That ridiculous prosecution soured the public on the influence of religion in public schools, which culminated with the Supreme Court Engel v Vitale case in 1962, that banned prayer in secular public schools.
Since Engel, school officials have gone overboard in efforts to purge any hint of religion from government funded schools. This past June, the Supreme Court decided two cases limiting those efforts, Carson v Makin, and Kennedy v Bremerton School District.
As I’ve previously written about an earlier religious liberty case, “Contrary to the myth [opponents of religion and schools] would have you believe, the First Amendment does not create a ‘wall of separation between church and state.’ That was phrase used by Thomas Jefferson in 1801, in a private letter he wrote to a Connecticut Baptist association, in which he avowed his belief that government should not interfere with the free practice of religion.”
Carson held that “separation” does not mean Maine can discriminate against sectarian schools “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”
“Maine is the most rural State in the Union” and due to low population many areas of the state have no public secondary schools. To provide secondary education to pupils in those rural areas, as required by the Maine state constitution, the legislature enacted a law providing funding for those students to attend private schools.
Parents could choose a school for their kids to attend, and the state would pay the tuition. But the funding law prohibited funding sectarian school tuition.
The plaintiffs/petitioners in the case were parents who wanted to send their children to religious schools – Bangor Christian School, and the Temple Academy. Both schools are, “accredited by the New England Association of Schools and Colleges (NEASC), and the [Maine Department of Education (MDOE)] considers each school a private school approved for attendance purposes under the State’s compulsory attendance requirement. Yet because neither school qualifies as nonsectarian, neither is eligible to receive tuition payments under Maine’s tuition assistance program. Absent the ‘nonsectarian’ requirement, the Carsons and the Nelsons would have asked [the state] to pay the tuition to send their children to BCS and Temple Academy, respectively.”
The MDOE claimed that paying tuition to sectarian schools violated the ‘establishment clause’, on the misguided premise that reimbursing student tuition to sectarian schools would be the endorsement of religion by the state of Maine. I say misguided because 20 years earlier, the Supreme Court had held “that a benefit program under which private citizens direct government aid to religious schools wholly as a result of their own genuine and independent private choice does not offend the Establishment Clause.”
After that earlier case had been decided, the Maine legislature considered amending the funding statute to include sectarian schools, but that amendment failed. So they couldn’t say they didn’t know what the Constitution meant in this context.
Carson additionally points out that the Maine statute continued to violate the ‘free exercise’ clause despite the Court having “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Maine does not have to fund private education but once it “decides to do so, it cannot disqualify some private schools solely because they are religious.”
Carson is another example of ‘limited government’. The power of the legislative branch to legislate “general rules for the government of society” is limited by the Constitution. Kennedy v Bremerton School District applies that same principle to government power by a local school board.
The Bremerton (WA) School District fired Joseph Kennedy. He “lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks … during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied.”
The school district is governed by an elected school board which, like a legislature, enacts policy under which the district operates. That policy is administered by the school system superintendent – who functions in the executive role. So in the Kennedy case, both the legislative and executive branches worked together to fire Kennedy because he exercised his “free exercise” and “free speech” rights.
The school district claimed he was fired because allowing him to pray as he did would be official endorsement, by the district, of his religious beliefs – in violation of the “establishment clause”. That was a “mistaken understanding”.
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The Court pointed out that the ‘establishment clause’, ‘free expression clause’, and ‘free speech clause’ are not “separate units”. Instead they have “complementary purposes, not warring ones where one Clause is always sure to prevail.”
There followed a recitation of the historical context of the protection of religion in the First Amendment:
“We are aware of no historically sound understanding of the Establishment Clause that begins ‘to mak[e] it necessary for government to be hostile to religion in this way’.”
“[I]n Anglo–American history… government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.”
“[T]he line that courts and governments must draw between the permissible and the impermissible has to accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.”
Those three concise sentences illustrate that the authors of the Constitution placed limitations on the power of government based on their own, and historical, experience of government tyranny.
And weren’t they prescient!
The Bremerton School District exceeded its limited power by discriminating against Joseph Kennedy’s religious beliefs, and his free exercise thereof.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.