No offense, but it’s just a prayer

in American Legion, Justice Gorsuch wrote a concurring opinion in which Justice Thomas joined. Gorsuch challenged the entire basis of Article III on Establishment Clause cases. In Gorsuch’s view, mere “offense” at some public display of religion is insufficient to establish an Article III injury. (I have too questioned at length stands in such cases Van Orden Vs. Perry.) Gorsuch wrote:

In a large and diverse country, the crime can be easily detected. Indeed, probably almost any government action offend someone. No doubt, too, this offense can be sincere, sometimes well received, even wise. But recourse to dissent and offense is not in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-governance and democratic responsibility, an “offended spectator” may “avert his eyes”, Erznozhnik v. Jacksonville (1975), or the pursuit of a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the decision.

If this passage is correct, then why would someone “offended” by a public display be constitutionally harmed? Van Orden could just roll his eyes at the display of the Ten Commandments. (And don’t get me started Last v. Cohen.)

At that time, Gorsuch’s opinion gathered only two votes. A majority of the Court now implicitly endorsed Gorsuch’s reasoning. Kennedy vs. Bremerton includes this passage:

Naturally, Mr. Kennedy’s suggestion that he pray quietly alone on the field would mean that some people would see his religious exercise. Relatives may have heard it too. But learning how to tolerate speech or prayer of any kind is “part of learning how to live in a pluralistic society,” a character trait essential to “a tolerant citizenry.” Lee. This court has also long recognized that “secondary school students are mature enough . . . to understand that a school does not condone,” let alone compel them to participate, “speech it merely permits on a nondiscriminatory basis.” . Merging. Of course, some will take offense at certain forms of speech or prayer, which they are sure to encounter in a society where these activities enjoy such robust constitutional protection. but”[o]crime … is not equivalent to coercion.” City of Greece.

If the offense is not sufficient to cause duress, then what is the basis for an Article III injury? Moreover, the Court sent a clear message: unless there is directly compulsion, overcome prayer in a public place. A government’s attempt to avoid a person feeling “offended” is not enough to infringe on a coach’s free exercise and free speech rights.

Justice Sotomayor’s dissent argued that Gorsuch read Lee v. Weissman out of context:

Today’s court cited Lee Cort’s remark that tolerating the speech of others is “part of learning how to live in a pluralistic society.” Lee However, the Court expressly concluded in the same paragraph that “[t]his argument cannot prevail” in the context of school prayer because the idea that subjecting a school to a “short” prayer is acceptable “ignores a fundamental dynamic of the Constitution”: its “specific prohibition of … state interference in religious affairs.” [FN7]

FN7: The Court further asserts that Lee distinguished because it involved prayer at an event in which the school “in every practical sense compelled attendance and participation [a] religious exercises.” The court in Leehowever, he specifically acknowledged that attendance at the graduation ceremony was optional and that students who did attend were only required to observe silence during and after the prayers.

And Sotomayor challenges the majority’s contention that “direct coercion” is required under the Court’s precedents:

The court held that the District “never raised concerns of coercion” simply because the District acknowledged that there was “‘no evidence that the students [were] directly forced to pray with Kennedy. The court’s suggestion that coercion should be “direct[t]” to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court has repeatedly recognized that indirect coercion can raise serious institutional concerns and that “there are heightened concerns about protecting freedom of conscience from subtle coercive pressures in elementary and secondary public schools.” Lee. Significantly, none of this Court’s major cases involving school prayer have addressed school practices that require students to do more than listen to silent prayers, and some do not even formally require students to listen, instead providing , that attendance is not mandatory. However, the Court concluded that the practices were coercive as a constitutional matter.

Once again through a red flag in June, the Court changed the doctrine. Lemon has disappeared. Plus duress related cases like Lee and Santa Fe are also cancelled. The amount of changes in doctrine during this term will take some time to digest.

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