The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.
Free Exercise Clause, commonly identified as the freedom of religion, refers to the first section of the First Amendment italicized here:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?
This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.
(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.
Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.
The authors would like to thank Professor Nelson Tebbe and Professor Michael Heise for their guidance and insights into this case.
Does the government-funded display and maintenance of a 40-foot-tall cross-shaped World War I memorial placed at a public highway intersection violate the Establishment Clause of the First Amendment because of its relation to Christianity?
This case asks the Supreme Court to resolve whether the state’s ownership and maintenance of a 40-foot-tall World War I memorial shaped like a Latin cross violates the Establishment Clause of the First Amendment. Petitioner American Legion proposes that the Court adopt a standard for Establishment Clause violations that focuses on coercion, or whether the government compelled citizens to participate in religion. Under this standard, the American Legion contends that the memorial is constitutional because it is a passive display. Alternatively, co-Petitioner Maryland-National Capital Park and Planning Commission, argues that the memorial is constitutional because its purpose and meaning are secular. On the other hand, Respondent American Humanist Association asserts that that the Supreme Court’s existing Establishment Clause jurisprudence already relies on a clear standard—the Lemon endorsement test—and maintains that the memorial is unconstitutional under that test. They advance that the use of a Latin cross reflects a sympathetic preference for Christian soldiers, and claim that the size and permanency of the memorial adds to the monument’s endorsement of Christianity. The outcome of this case has grave implications for other existing monuments and memorials that incorporate religious symbols, and whether they will be allowed to stand.
Prince George County, Maryland is the location of a World War I monument entitled the Peace Cross. Am. Humanist Ass'n v. Maryland-National Capital Park at 201, 208. Erected in 1925, the Peace Cross is placed in the middle of a public highway intersection.
The Supreme Court will decide whether requiring objecting religious non-profit organizations to sign a waiver allowing employees to receive health coverage, including contraception and abortion-inducing drugs from third parties, violates their rights under the Religious Freedom Restoration Act (“RFRA”). Petitioners, a group of Catholic non-profits (the “Catholic groups”), argue that the requirement forces them to offer health coverage to their employees in a manner inconsistent with the Catholic groups’ faith. The Catholic groups further argue that the requirement has been imposed without proof that the mandated coverage cannot be achieved through alternative means. Sylvia Burwell, the secretary of Health and Human Services, and the U.S. Department of Health and Human Services, counter that the objections of these religious organizations are not a cognizable burden under RFRA. Furthermore, their refusing to sign the waiver will frustrate the government’s compelling interest in protecting the health of all women, including female employees of Catholic groups. This decision could expand the religious exemption to the requirements of the Affordable Care Act, and will further define the limits of the First Amendment protections afforded under RFRA.
1. Does the Government violate the Religious Freedom Restoration Act (“RFRA”) by forcing objecting religious nonprofit organizations to comply with the HHS contraceptive mandate under an alternative regulatory scheme that requires these organizations to act in violation of their sincerely held religious beliefs?
2. Can the Government satisfy RFRA’s demanding test for overriding sincerely held religious objections in circumstances where the Government itself admits that overriding the religious objection may not fulfill its regulatory objective—namely, the provision of no-cost contraceptives to objectors’ employees?
The Affordable Care Act (“ACA”), passed in 2010, requires health insurers to cover preventive care and screenings for women at no cost according to guidelines established by the U.S. Department of Health and Human Services (“HHS”). Geneva College et al. v.
