In an interview with The Daily Wire, First Liberty attorney Jeremy Dys — part of the legal team representing lead plaintiff and Bremerton High School football coach Joseph Kennedy — broke down how the Court’s ruling will affect Americans.
On Monday morning, the high court ruled that Kennedy’s First Amendment rights were violated after he was placed on administrative leave by the Washington state school district and was banned from participating in the football program for praying on the field in view of students.
Dys explained that the Court’s ruling “stands for the principle that no one should be fired from their jobs simply because they can be seen engaged in some sort of religious activity.”
“And more than that, this reaffirmed the promise of the First Amendment, that you don’t have to choose between a job that you love and your faith,” he added.
Justice Neil Gorsuch wrote the majority decision and was joined by justices Samuel Alito, Amy Coney Barrett, Clarence Thomas, Brett Kavanaugh, and Chief Justice John Roberts.
“Gorsuch was very clear here, that the school district went out of their way to discriminate against Coach Kennedy, for activity that was clearly protected under the First Amendment, the Free Exercise Clause,” Dys explained.
The attorney for First Liberty explained that the Bremerton School District was “using the Establishment Clause like some sort of cudgel to deflate his First Amendment freedoms. That’s something that’s unnecessary. And in this country, we’re able to welcome religion even through the schoolhouse gates.”
On Twitter, leftists have been making much hoopla over the fact that Gorsuch — essentially — did away with what’s called “the Lemon test” in this ruling.
- Does the government action have a secular purpose?
- Does the government action have the primary effect of advancing or inhibiting religion?
- Does the government action foster an excessive entanglement between government and religion?
Dys explained to The Daily Wire that the Lemon test hasn’t been used for quite some time and received a hefty blow in 2018 for another case which First Liberty won — American Legion v. American Humanist Organization, AKA the Bladensburg Cross case.
“The Lemon test … was always used to sort of prevent religious activity within the public square,” Dys argued. “So anytime the Lemon test was trotted out, the person who was engaging in religious activity in the public square always lost every time,” he summarized.
In the Bladensburg Cross case, a group of atheists argued in court that a giant cross erected in honor of World War I veterans in 1925 ran afoul of the First Amendment while “alleging that the public ownership, maintenance, and display of the memorial violated the Establishment Clause.”
In 2019, the Court ruled 7-2 that the cross did not violate the First Amendment, and also whittled away the aforementioned Lemon test, Dys explained.
With the Bladensburg Cross victory, “the Court really, more or less, put away the Lemon test in that case, without formally overruling it.”
“They took really the extra step [in Kennedy] and said again, ‘This is not a test for us to be using,'” Dys continued.
Instead of that standard, “the Court looks to the history and tradition of our country.”
The Court asks questions like, “Have we welcomed the speech and religious activity of individuals or religious paraphernalia, language, monuments, memorials … as a country? And do we welcome that in the public square historically? And if so, then they’re entitled to protection and there’s nothing to be feared from at all,” Dys explained.
In effect, Americans can be assured that the right to religious liberty has now returned to the public square.
“What the Court has basically done has been to reaffirm the importance of welcoming religion in the public square, rather than taking bulldozers to monuments that are maybe the shape of the cross, or in the case of Coach Kennedy, people who take a knee in silent prayer by themselves at the 50-yard line on a public school football field.”
“What the Supreme Court said in this case, with regard to Lemon and other things is that school districts around the country can’t close the schoolhouse gates to the constitutional rights of every American. They have to welcome their First Amendment freedoms.”