Amdt1.3.7.2 Coercion and Establishment Clause Doctrine

First Amendment:

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.

Particularly in the context of government-sponsored prayer practices, the Supreme Court has sometimes evaluated Establishment Clause challenges by looking for impermissible government coercion.1 Although the Court has said the Establishment Clause is concerned with many aspects of the relationship between government and religion,2 “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” 3

The Supreme Court has accordingly held that the government violates the Establishment Clause where there is coercion, including “indirect coercive pressure.” 4 In Engel v. Vitale, the Court clarified that a law requiring a specific prayer to be recited in schools was unconstitutional even though participation was voluntary, in the sense that students could opt out.5 Similarly, in Lee v. Weisman, the Court held that a high school violated the Establishment Clause with its involvement in prayers at high school graduations.6 The school had “decided that an invocation and a benediction should be given,” chosen “the religious participant” to give that invocation, and offered guidelines directing the content of the prayers.7 The Court’s opinion stressed the “heightened concerns with . . . subtle coercive pressure in the elementary and secondary public schools.” 8 Under the circumstances, the Court said that “the dissenter of high school age” would have “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.” 9 In Santa Fe Independent School District v. Doe, the Court again held that a school policy permitting student-led prayer at football games created impermissible coercion.10 Although many students could freely choose whether to attend games, the delivery of a pregame prayer “over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer” nonetheless had “the improper effect of coercing those present to participate in an act of religious worship.” 11

The Supreme Court has reached different conclusions with respect to policies involving adults. For example, in Lee, the Supreme Court distinguished a prior case that rejected an Establishment Clause challenge to prayers at state legislative sessions, noting the “obvious differences” between a session “where adults are free to enter and leave” and a graduation ceremony, “the one school event most important for the student to attend.” 12 Further, in a case where parents chose whether or not to allow their students to attend the meetings of a private religious club, the Supreme Court held that the school would not create impermissible coercion merely by allowing the meetings to occur on school premises after school hours.13

In Kennedy v. Bremerton School District, the Court considered whether a school would have violated the Establishment Clause by allowing a football coach to pray at the fifty yard line immediately after football games.14 The school argued that the coach impermissibly coerced students to join his prayers, noting that the coach had previously led students in prayer before games and conducted overtly religious inspirational talks after games, and some students felt pressured to participate in the earlier prayers.15 The Court concluded those arguments were not relevant because the school’s disciplinary action against the coach focused on later instances when the coach “did not seek to direct any prayers to students.” 16 In comparison to Santa Fe, the Court concluded that the coach’s prayers “were not publicly broadcast or recited to a captive audience,” and students were not “expected to participate.” 17 People who saw or heard his prayers on the 50-yard line could be offended, but not coerced, in the Court’s view.18 The Court further said that the school could not require teachers to “eschew any visible religious expression,” because that would impermissibly “preference secular activity.” 19

More broadly, Kennedy said that in the future, courts should evaluate Establishment Clause challenges “by ‘reference to historical practices and understandings.’” 20 The Supreme Court acknowledged that while coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment,” the Justices “have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.” 21 The Court did not expressly resolve those open disputes, ruling instead that in Kennedy, the coach’s “private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.” 22

See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000). back
Engel v. Vitale, 370 U.S. 421, 431 (1962). back
Lee v. Weisman, 505 U.S. 577, 587 (1992). back
Id. at 430–311. Cf., e.g., Allegheny Cnty. v. ACLU, 492 U.S. 573, 659–60 (1989) (Kennedy, J., dissenting) (giving examples of impermissible coercion as including “taxation to supply the substantial benefits that would sustain a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing” ). back
Engel, 370 U.S. at 433. back
Lee, 505 U.S. at 587. back
Id. at 587–88. back
Id. at 592. back
Id. at 593. The dissent disagreed with analysis, saying courts should interpret the Establishment Clause by reference to historical practices of coercion rather than “psychological coercion.” Id. at 631–32 (Scalia, J., dissenting). Justice Clarence Thomas has continued to assert this criticism, arguing that the Establishment Clause is violated only by legal coercion, Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring), effected “by force of law and threat of penalty,” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment) (quoting Lee, 505 U.S. at 640 (Scalia, J., dissenting)). back
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000). back
Id. at 310, 312. back
Lee, 505 U.S. at 596–97 (discussing Marsh v. Chambers, 463 U.S. 783 (1983)). See also Town of Greece v. Galloway, 572 U.S. 565, 590 (2014) (plurality opinion) ( “[I]n the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” ); see also id. at 591 ( “The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders . . . rather than to exclude or coerce nonbelievers.” ). back
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115–16 (2001) back
Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 20 (U.S. June 27, 2022). back
Id. at 26–27; id. at 4–5, 18 (Sotomayor, J., dissenting). back
Id. at 26. back
Id. at 30. back
Id. at 26–27. back
Id. at 28. back
Id. at 23 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)). back
Id. at 25. back
Id. Cf. id. at 30 (Sotomayor, J., dissenting) (arguing that the Court’s opinion focused on direct coercion and did not account for earlier Supreme Court precedent recognizing that “indirect coercion may [also] raise serious establishment concerns” ). back