Does the Constitution require religion to be invisible? That is, essentially, where Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer want to take the United States. The three dissented in two major religion cases of the just-ended Supreme Court term: Carson v. Makin and Kennedy v. Bremerton School District. Breyer and Kagan might prefer a more nuanced gag order, but all three, in practice, wind up at the same place: religion should neither be seen nor heard in the public square, lest the gullible take it as a sign of “endorsement” and “establishment” of religion by the State.
Carson involved a Maine policy that gave tuition reimbursement to Mainers living in towns without high schools to attend an out-of-district school. The policy was grounded in Maine’s state constitutional duty to provide “a general diffusion of the advantages of education” but made religiously-affiliated secondary schools ineligible (even though students could take money to private, out-of-state Ivy League prep schools).
Kennedy involved a Washington-state high school coach who prayed publicly after football games and was fired for it by the Bremerton School District. On June 27, the Supreme Court declared that termination unlawful.
Sotomayor, in Carson, bemoaned the deconstruction of the so-called “wall of separation” between Church and State. In Kennedy, she continued to bewail the fall of that wall, but she also spent considerable time criticizing the majority for abandoning the Lemon tests.
The tests were a Supreme Court invention, imposed in the 1971 case of Lemon v. Kurtzman, to throw out a Pennsylvania law that provided for reimbursement of parochial school teachers’ salaries if they were teaching public school subjects using public-school-approved instructional materials. The Court struck down the law as an “establishment of religion” in violation of the First Amendment. It then graciously told us by what criteria the Court would determine whether something was an “establishment of religion”—the Lemon tests.
According to the Supreme Court, a policy became an “establishment of religion” if it violated any one of three Lemon “prongs” the Court articulated: A law had to have a secular purpose. It could neither advance nor inhibit religion. And it could not lead to “excessive government entanglement” between Church and State.
Advancement and excessive entanglement are arguably in the eye of the beholder. And, in the 1970s, the beholder generally did not like what it saw.
One could always claim that any benefit to a Church-related entity “advanced” religion. That Pennsylvania sought equitable treatment for its school children in public and private schools could be argued as a neutral goal. But once religion-as-such is seen as something that taints its relationship to the public sphere, one can always make a case that religion is being “advanced.”
Likewise, one could say that verifying the schools’ eligibility for salary reimbursement based on instructors’ teaching schedules and texts was simple accounting to meet eligibility criteria under the law. But one could always assert that having to consider whether instruction might have a religious component was “excessive entanglement” and so beat a retreat from further inquiry.
Implicit in the Lemon tests—as Richard Neuhaus argued in a reading of the First Amendment’s “no establishment” clause untethered from its “free exercise” clause—is an inbuilt bias that religion’s influence, or even presence, taints its interaction with society, leaving the burden of proof on the religious to prove their eligibility rather than on the irreligious to justify religion’s exclusion.
The point is that Lemon was always a set of rules imposed not by the Constitution but by the Court, criteria open to multiple interpretations but—to borrow Justice Breyer’s phrase from elsewhere—providing enough “play in the joints” to reach whatever conclusion five judges might want. This, of course, is not principled Constitutional adjudication but deference to the preference of individual, unelected judges.
That the Court found the Lemon tests to be unprincipled and unwieldy eventually led to their tacit abandonment. But the failure to explicitly renounce them made them available to trot out when a majority sought a particular outcome. With Kennedy, they finally appear to be laid to rest, a burial Sotomayor et al. grieve.
I don’t. Determining what the Constitution means by judge-imposed criteria reduces us from rule of law to the rule of men (and women) who can cobble together a five-person majority. It also gets the central purpose of the First Amendment wrong. Written to defend religious freedom, not freedom from religion, the First Amendment protects the presence of religion in society. It does not require that religion lock itself in the sacristy or be invisible.
Making religion invisible also sends a message: that it is unimportant, marginal, and irrelevant to anything outside the doors of the church or synagogue. It promotes a false understanding not just of the Constitution but of our culture at large by pretending that the culture of which we are heirs might be the product of Athens and Rome but certainly not of Jerusalem. It fosters what Neuhaus called the “naked public square,” the expectation that civil participation required stripping off one’s religious commitments.
The First Amendment does not require religious Americans to be naked or invisible. In the light of Kennedy, it even invites them out of the closet.
[Photo: Former Bremerton High School assistant football coach Joe Kennedy answers questions (Getty Images)]