On Monday, the United States supreme court overturned decades of precedent governing the separation of church and state, and achieved one of the most long-standing goals of the Christian right: the return of official Christian prayer to public schools.
Kennedy v Bremerton School District had a strange path to the supreme court. Initially filed in 2015, the case concerns Joseph Kennedy, formerly a public high school football coach from a Seattle suburb, who sued the community that used to employ him for religious discrimination after the school objected to his habit of making public, ostentatious Christian prayers on the 50 yard line at football games, surrounded by young athletes. Kennedy has lost at the district and circuit levels; he moved to Florida in 2019, which technically should have rendered his case moot. But the supreme court agreed to hear his case anyway. This week, they ruled in his favor, 6-3.
Students now face the prospect of their schools becoming sites of religious pressure and indoctrination
The facts of what happened with Coach Kennedy at the school district are contested, but only because Kennedy himself keeps revising them. In allowing Coach Kennedy to pray publicly at school, while conducting his official duties as a public official, Justice Neil Gorsuch, writing for the majority, characterized the prayers this way: “Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied.”
Sam Alito, in his concurrence, claimed that Kennedy “acted in a purely private capacity.” That’s Kennedy’s version of events. But evidence suggests things looked different. In her dissent, Justice Sonya Sotomayor cast doubt on the idea that the coach offered his prayers “quietly, while his students were otherwise occupied.” She included a photograph of Coach Kennedy at one of his game night prayers. In the picture, he stands surrounded by a dense group of dozens of high school football players, uniformed and kneeling at his feet. Kennedy is speaking with a football helmet in his hand, stretched high above his head in what looks like a gesture of command. Spectators can be seen in the background, looking on from the stands. Quiet and private this was not.
The court held that the school was required to allow this: that in attempting to maintain separation of church and state – as is required by the first amendment’s establishment clause – they were actually infringing on Coach Kennedy’s free exercise rights. Thus, the court allowed the free exercise clause to effectively moot the establishment clause, denying Americans like Coach Kennedy’s students the freedom from religion that the church-state divide had previously granted them. It should not escape us that in issuing this ruling, and overturning a decades-old test for establishing the efficacy of church-state separation measures, the court relied on a version of the facts that is blatantly, demonstrably false.
All of this could have been avoided, because in fact, over the course of Kennedy’s employment, the school district took pains to balance the coach’s desire for prayer with their own obligations to remain religiously neutral. Starting from when he began coaching in 2008, Kennedy, an evangelical Christian, initially prayed to himself at games, a practice that nobody had a problem with. He says that he got the initial idea from a movie, the low-budget 2006 Christian football drama “Facing the Giants,” which he saw on TV. The film features a fictional coach who prays with his high school football team. But at some point, Kennedy’s praying became louder, and more public. He would stand on the 50-yardline just after the final whistle, and pray out loud. Teen athletes, both from his team and from the opposing side, would kneel with him in a large scrum; Kennedy mixed his prayers with pep talks. Kennedy says that the visible center of the field was an important location for him. “It made sense to do it on the field of battle,” he told the reporter Adam Liptak.
It is these public prayers, conducted while Kennedy was acting in his official capacity as the coach, that became an issue. The school tried to accommodate Kennedy, offering him ways to exercise his faith that did not involve students, and did not risk giving the impression that his religion was endorsed by the public school. Kennedy refused, and lawyered up. He eventually left the school – voluntarily – and began to claim that the district’s policies amounted to both religious discrimination and a violation of his free speech rights.
Kennedy and the First Liberty Institute, the conservative legal group that is funding his lawsuit, have tried to cast him as a first amendment hero. Before his departure from Bremerton, Kennedy spent months working with his media-savvy legal team to draw attention to his own prayers. The football games became a chaotic mess of culture-war politicking, with reporters, politicians, and evangelical Christians flocking to the field to witness Kennedy’s displays and join him in prayer. Parents complained about the shambolic “stampedes” of Kennedy’s fans, who would run, phones outstretched through the stands to join his prayer circles at the end of the games, sometimes knocking people down. Players were made uncomfortable, with one telling his father that he feared that if he didn’t pray, he “wouldn’t get to play as much.” Other coaches weren’t thrilled, either. In effect, the school-district-sponsored football games became more about Kennedy’s religious practice than about the football itself.
As it has done with increasing frequency over this term, the court threw out a long-held precedent in order to secure a conservative outcome in Kennedy’s case: Lemon v Kurtzman, the 1971 case that established a three-part test for Establishment Clause compliance. The new right-wing court, it seems, isn’t interested in Establishment Clause compliance at all. By ruling in Kennedy’s favor, they have opened the door for any Christian public official to claim that they are being discriminated against if any limits are placed on their religious expression during the conduct of their jobs, and imperiling any public bodies that try to maintain a separation between their employee’s private religious actions and their own public official ones. And they have made American public schools vulnerable to the religious proclivities of their teachers and administrators, which can now be wielded in ways that coerce the participation of students.
The supreme court seems poised to allow this. Why? Because its conservative supermajority has adopted a radically expansionist view of the first amendment’s free exercise clause, interpreting the constitution’s guarantee of freedom of religion in a way that in fact tramples on the freedoms of others. An emergent trend in conservative thought – backed by a growing body of case law emerging from the Republican-controlled federal bench – has begun framing what were once considered standard features of the separation of church and state as oppressive discrimination against Christians.
It’s an absurd argument, one that would not hold water before this court if it were brought by a non-Christian. But Kennedy got a sympathetic ear, and a maximalist ruling. “That’s protected speech,” Amy Coney Barrett declared bluntly of Kennedy’s prayer circles at oral arguments. For Christians, at least, the supreme court has redefined religious liberty – as religious privilege.
The U.S. Supreme Court has consistently banned school-sponsored prayer in public schools. At the same time, lower courts have generally forbidden public school employees from openly praying in the workplace, even if no students are involved.
Yet on June 27, the Supreme Court effectively gave individual employees’ prayer the thumbs up – potentially ushering in more religious activities in public schools.
In Kennedy v. Bremerton School District – the Supreme Court’s first case directly addressing the question – the court ruled that a school board in Washington state violated a coach’s rights by not renewing his contract after he ignored district officials’ directive to stop kneeling in silent prayer on the field’s 50-yard line after games. He claimed that the board violated his First Amendment rights to freedom of speech and freedom of religion, and the Supreme Court’s majority agreed, 6-3.
From my perspective as a specialist in education law, the case is noteworthy because the court has now decided that public school employees can pray when supervising students. It also helps close out a Supreme Court term when the current justices’ increasing interest in claims of religious discrimination was on full display, with another “church-state” case decided in religious plaintiffs’ favor just last week. And on June 24, the court overturned Roe v. Wade. The debate over abortion is often framed in terms of religion, even though the court’s holding focused on other constitutional grounds.
In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He began to kneel on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.
While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later added inspirational speeches, causing some parents and school employees to voice concerns that players would feel compelled to participate.
School officials directed Kennedy to stop praying on the field because they feared that his actions could put the board at risk of violating the First Amendment. The government is prohibited from making laws “respecting an establishment of religion, or prohibiting the free exercise thereof” – language known as the establishment clause, which is often understood as meaning public officials cannot promote particular faiths over others.
Paul Peterson holds a photo of his son, who played football for Bremerton High School in 2010. Peterson participated in filing a friend-of-the-court brief in support of the district’s case against Joe Kennedy. (AP Photo | Ted S. Warren)In September 2015, school officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later, Kennedy resumed his on-field prayers. He had publicized his plans to do so and was joined by players, coaches and parents, while reporters watched.
Bremerton’s school board offered Kennedy accommodations to allow him to pray more privately on the field after the stadium emptied out, which he rejected. At the end of October, officials placed him on paid leave for violating their directive and eventually chose not to renew his one-year contract. Kennedy filed suit in August 2016.
Kennedy raised two major claims: that the school board violated his rights to freedom of speech and also to the free practice of his religion. However, the Ninth Circuit twice rejected these claims because it concluded that when he prayed, he did so as a public employee whose actions could have been viewed as having the board’s approval. Moreover, the Ninth Circuit agreed with the school board that the district had a compelling interest to avoid violating the establishment clause.
During oral arguments at the Supreme Court, though, it was clear that the majority of justices were sympathetic to Kennedy’s claims of religious discrimination and more concerned with his rights to religious freedom than the board’s concern about violating the establishment clause.
Writing for the court, Justice Neil Gorsuch noted that “a proper understanding of the Amendment’s Establishment Clause [does not] require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
One aspect of Kennedy with potentially far-reaching consequences is that it largely repudiates the three major tests the court has long applied in cases involving religion.
The first, Lemon v. Kurtzman, was a 1971 dispute about aid to faith-based schools in Pennsylvania. The Supreme Court’s decision required that interactions between the government and religion must pass a three-pronged test in order to avoid violating the establishment clause. First, an action must have a secular legislative purpose. In addition, its principle or primary effect must neither advance nor inhibit religion, and it cannot result in excessive entanglement between the government and religion. Regardless of whether one supported or opposed the “Lemon test,” it was often unwieldy.
A decade later, in Lynch v. Donnelly – a case about a Christmas display on public property in Rhode Island – the court determined that governmental actions cannot appear to endorse a particular religion.
Finally, in 1992’s Lee v. Weisman, a dispute from Rhode Island about graduation prayer, the court wrote that subjecting students to prayer was a form of coercion.
The Supreme Court has backed away from the Lemon test for years. In 1993, Justice Antonin Scalia caustically described it as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, […stalking] our Establishment Clause jurisprudence.”
Kennedy may have put the final nail in Lemon’s coffin, with Gorsuch writing that the court should instead interpret the establishment clause in light of “historical practices and understandings.” He went on to remark that “this Court has long recognized as well that ‘secondary school students are mature enough’” to understand that their schools allowing someone freedom of speech, in order to avoid discrimination, does not mean officials are endorsing that view, let alone forcing students to participate.
In a lengthy dissent almost as long as the opinion of the court, Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, expressed their serious reservations about the outcome. Setting the tone at the outset, Sotomayor chided the court for “paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”
The dissent echoed some points from the June 21, dissent in Carson v. Makin, another high-profile case about religion and schools, where Sotomayor criticized the majority for dismantling “the wall of separation between church and state that the Framers fought to build.”
Kennedy v. Bremerton is unlikely to end disagreements over public employees’ prayer as free speech, or the tension between the free exercise and establishment clauses.
In fact, the case brings to mind the saying to be careful what one wishes for, because one’s wishes may be granted. By leaving the door open to more individual prayer in schools, the court may also open a proverbial can of worms. Will supporters who rallied behind a Christian coach be as open-minded if, or when, other groups whose values differ from their own wish to display their beliefs in public?
Meanwhile, Kennedy has said that he would like his job back – so stay tuned.
This article is republished from The Conversation under a Creative Commons license. Read the original article.