The Supreme Court of Appeal of the United States of America (“SCOTUS”) has recently handed down some landmark judgments on freedom of religion cases. Following on from their decision in the case of Carson v Makin (which concerned the State of Maine not being allowed to unfairly discriminate against private religious schools – see FOR SA’s article here), it decided the case of Kennedy v Bremerton School District.
Kennedy was employed as a high school football coach by the Bremerton School District (“the District”) in the State of Washington. The District disciplined him and fired him from his job, because he prayed by himself on the sports field after matches. The District argued that observers would think it (the Government) endorsed Kennedy’s prayers, or that students would feel coerced to join him, even though he prayed during a time when school employees were free to attend to personal matters and when students were otherwise occupied.
Kennedy sued the District, arguing that the American Constitution’s First Amendment – which protects freedom of expression (in the Free Speech Clause) and religion (in the Free Exercise Clause) – protected his public prayers. The District countered, arguing firstly that the First Amendment – which also says that the Government cannot endorse any religion (in the Establishment Clause) – does not allow a State employee, such as Kennedy, to pray publicly as this could be seen as Government-speech (i.e. the State endorsing a religion). Secondly, the District further argued that not suppressing Kennedy’s prayers would coerce students to pray. The District’s view was that Kennedy’s constitutional rights had to yield to the Establishment Clause (i.e. creating a hierarchy of rights) and that it could not allow him to engage in any public display of religious activity.
The entire case turned on what the First Amendment alternatively prohibits and protects. The First Amendment states that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While the Establishment Clause requires separation between the Church and State, requiring that the American government be religiously neutral (i.e. not endorse a specific religion), the Free Exercise Clause and Free Speech Clause work in tandem, offering double protection to religious speech. The Free Exercise Clause protects religious exercise – i.e. the ability to hold religious beliefs of all kinds and then to live out those beliefs in daily life. The Free Speech Clause provides overlapping protection to religious expression (which is wider than just speech and includes expressive acts). Importantly, the Court stated that the three clauses, all found in the same sentence in the same amendment of the American Constitution, should be interpreted has having a complementary purpose and not as being at war with each other, which would create a de facto hierarchy where one clause prevails over the others.
Prayers as Free Exercise of Religion:
From the facts, it was clear that the District’s actions interfered with Kennedy’s right to live out his religious beliefs publicly: The District conceded that it had burdened his sincere religious practice, because of a policy that was neither neutral nor generally applicable.
Prayers as Free Speech:
The crux of the Free Speech Clause claim was the nature of Kennedy’s prayers: whether they were personal expressive acts or Government speech. If they were made in his personal capacity, then they are protected by the Free Speech Clause. If they were made in his capacity as a State employee, they contravened the Establishment Clause.
In determining the prayers’ nature, the Court held they were an act of his personal expression because they did not owe their existence to Kennedy’s job as a coach. The prayers were thus protected by Kennedy’s right to Free Speech.
The Court found the District’s suggestion that any visible religious conduct by a coach should be deemed as being coercion and therefore impermissible, was ludicrous. Its logical conclusion would be to suppress religious liberty in order to protect religious liberty – clearly something which is absurd and untenable. The Court also pointed out that a proper reading of the Establishment Clause does not allow the State to single out private religious speech for special disapproval. The Clause also does not compel the Government to purge religious activity from the public sphere, or forbid it based on discomfort. It further stated that offence does not equate to coercion. Looking at whether Kennedy’s prayers were impermissible coercion, the Court said that they did not come close to crossing any line one might imagine separating protected private expression from impermissible State coercion. The evidence before the Court did not sustain the District’s argument that Kennedy’s prayers were coercive, given, amongst other things, that not a single Bremerton student joined him.
Tolerance as a cornerstone democratic value:
The Court emphasised that “[r]espect for religious expression is indispensable to life in a free and diverse Republic”, and that “mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike” is what the American Constitution requires. The Court further said that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society’”.
In this specific case, Kennedy’s rights to Free Exercise and Free Speech were violated by the District’s mistaken view that it had to ferret out and supress religious activities because failure to do so would be to contravene the Establishment Clause. The Court found no conflict between the three clauses in this case and found in Kennedy’s favour.
Although foreign cases do not have any binding effect on South African courts, they are nevertheless interesting and important, both from a comparative law point of view and in picking up international trends in the area of religious freedom law which does – at times – spill over into our local context.