The following article is a supplement to the MRC Report: The Biden Administration Waged War on Free Speech with 57 Censorship Initiatives.
Initiative #39
The Attack on Religious Speech
Type of Censorship: Direct Action
Agencies Involved:
- Department of Education
- Office for Civil Rights (OCR)
- Department of Justice
- Office of the Solicitor General
Summary:
The Biden administration repeatedly called on the U.S. Supreme Court to choose censorship and discrimination over the First Amendment’s guarantee of religious liberty.
Exercising its privilege to participate in cases it was not a party to, the Office of the Solicitor General argued in Carson v. Makin that state officials were entitled to require institutions to censor religious speech before receiving state grants. The specific controversy centered around the state of Maine’s requirement that schools pledge not to teach religious values before receiving access to a generally-applicable voucher program.
That same term, the Office of the Solicitor General refused to submit a brief or argue to the Court in the case Kennedy v. Bremerton School District, despite having the legal right to do so. The controversy turned on whether public schools were constitutionally mandated to terminate staff who engaged in personal prayer if this prayer was observable by students, even if the school itself did not wish to censor the religious expression. The Biden administration lodged no objection when a District Court claimed the school had no choice but to fire a football coach who knelt for a five-second prayer while at work.
After the U.S. Supreme Court ruled that the school had not been constitutionally obligated to fire the praying coach, Biden’s Department of Education issued guidance acknowledging the ruling but attempted to water down its result. The guidance stated schools were still prohibited from doing anything that would “encourage” religious activities and could still restrict students from sharing religious literature. The guidance quoted from a long-discredited precedent that the U.S. Supreme Court had explicitly repudiated (not for the first time) in its Kennedy decision.
Key Individuals:
- Miguel Cardona, Secretary of Education
- Merrick Garland, Attorney General
- Cathy Lhamon, Assistant Secretary of Education for Civil Rights
- Elizabeth Prelogar, Solicitor General
- Malcolm Stewart, Deputy Solicitor General
