The first words of the Bill of Rights are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. In recent decades, that’s meant people are free to practice their religion (the Free Exercise Clause) but not promote it as part of their government jobs (the Establishment Clause).
Charles Pierce of Esquire discusses today’s right-wing reinterpretation of what constitutes free exercise and the establishment of religion:
… It was a pretty good day for theocracy. In Kennedy v. Bremerton School District, by the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell, the Court sided with a football coach named Joseph Kennedy who used to have his team meet at midfield for a postgame exercise in what the Court said Monday was “quiet personal prayer.”
The history of the case is a perfect example of a small-town controversy that was fairly clear-cut until the conservative movement managed to get it through a carefully engineered conservative-heavy judicial system until it finally landed on the doorstep of Supreme Court Justice Neil Gorsuch. In 2015, the school district told Kennedy to knock it off. Kennedy refused and was placed on administrative leave. Instead of reapplying for his job when his leave ended, Kennedy decided to sue the school district. He lost in court. Then he lost his appeal. Then an earlier Supreme Court declined to take his case.
But the longer you can keep going in the courts, the better chance you have of running into a conservative Christian who will find room for white-people Jesus in the Bill of Rights…. Kennedy tried again and, this time he finally found Gorsuch and the rest of the Papal States on the Supreme Court.
Once again, that crew threw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of the previous Establishment Clause law had rested on a 1971 case called Lemon v. Kurtzman—decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger …
Leaving Coach Kennedy’s triumph for a moment, we should be wary of the blithe way the Court’s majority dismisses Lemon as irrelevant to Establishment Clause jurisprudence. Lemon was not purely about prayer. It has also been central to keeping the bunco scheme that is Creationism—as well as its gussied-up cousin, Intelligent Design—out of the public schools … [Lemon] was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana … in 2005, when it helped decide a famous case in Pennsylvania. …
In this particular political moment, you’d have to be considerably naive to think that the reactionary right isn’t coming for the public schools, largely because they never stopped coming for the public schools. They will use radicalized Christian religion as their primary artillery. Last week, the Supreme Court opened up the wallets of Maine taxpayers and invited religious schools to dive right in. Would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority?
… Public education is unconstitutional because it is insufficiently theocratic. An interesting legal theory that is coming soon to a Supreme Court near you.