Kennedy v. Bremerton School Dist.
Today, the Supreme Court announced its decision in Kennedy v. Bremerton School District. While appearing to be relatively straightforward, the case had something of a complex history. Kennedy had previously led voluntary prayers with players in the locker room before games, prayed initially by himself after games, and had eventually led prayer sessions at the fifty-yard line that involved over half the team and opposing players. Kennedy was clear that he never coerced or required any student athlete to be part of the prayer. Kennedy’s actions had gone unnoticed until an opposing coach sent a letter to the principal stating how cool it was that the school allowed the coach to pray with his players after the game. At that point, the district had sent Kennedy a cease and desist letter. It tried to negotiate with him so that his prayer sessions did not give off the impression that the school tacitly approved of the prayers. Kennedy agreed to end his religious talks with players and group prayer sessions, but the only accommodation he would accept was a demonstrative prayer at the fifty immediately following games. He then performed three more prayer sessions at the fifty. During two of these sessions, opposing players, fans, and even state legislators joined in. His contract was not renewed for the following season.
The decision upholds the right of an assistant football coach to pray on the fifty yard line immediately after games. In the process, the Court effectively overruled Lemon v. Kurtzman, claiming that its shortcomings had long been abandoned. It replaced Lemon‘s excessive entanglement test with one that references “historical practices and understandings” and that “faithfully reflects the understanding of the Clause by the Founding Fathers.” It failed to elaborate further on the parameters of the new test. The Court was quick to point out that the school district’s edict preventing Kennedy from praying after games violated his rights to religious freedom and free speech. The Court found that Kennedy’s case involved only his last three prayer sessions which it descried as “private and quiet.” The Court noted that the case did not violate the Establishment Clause because permitting private speech is not the same as coercing others to participate in it. It contrasted the facts of Kennedy with those in Santa Fe School District v. Doe where a student clergy member had broadcast a prayer over the PA system before each home football game. Unlike in Doe, the prayers engaged in by Kennedy were not broadcast to a captive audience.
Justice Sotomayor wrote the dissenting opinion in which she criticized the majority’s characterization of Kennedy’s prayers as “private and quiet.” She believed this misconstrued the facts because Kennedy’s actions should have been viewed as an extension of his long-standing practice of leading students in prayer at the fifty. To her, the case was less about restricting a person’s private exercise of religion and more properly viewed as a question of whether a government employee could “incorporate a public, communicative display of the employee’s personal religious beliefs into a school event where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.” It was this prior history of Kennedy’s prayer sessions that caused concern among the three dissenting justices.
Sotomayor believed the Establishment Clause is of particular importance in the context of schools because it prevents a school from conveying a message that a particular religious belief is favored or preferred. She rejected the majority’s finding that Kennedy’s conduct was proper because it did not involve explicit coercion. The dissent concluded students faced social pressure to gain acceptance from their peers and approval of their coach to participate in the prayers. This was sufficient to violate the Establishment Clause. An additional concern was that Kennedy’s conduct gave off the impression that the school endorsed the prayer sessions by having them occur in such a visible locale. Finally, Sotomayor chastised the majority for vaulting the Free Exercise Clause ahead of the Establishment Clause, giving “short shrift” to the latter’s concerns. She was highly critical of the majority’s new test and cautioned that turning administrators and judges into “amateur historians” would do little to alleviate the concerns that the Lemon test had been confusing to apply.
So where does this case leave Establishment Clause jurisprudence? It is clear the conservative majority of the Supreme Court is moving away from balancing tests when it comes to cases involving infringement of personal rights and replacing them with ones that favor historical beliefs and practices (this was the basis fo the Dobbs ruling in overruling Roe v. Wade). The doctrine of Originalism is alive and well. Read together with its recent ruling that states may not exclude religious schools from receiving school vouchers (if private schools are included in that mix), these decisions certainly indicate that the Court is elevating religious liberty concerns over those contained in the Establishment Clause. Whether its new standard is any more workable than the Lemon test is yet to be seen.
Perhaps the most anticipated case in this area, 303 Creative, LLC v. Elenis (whether a web designer can refuse to make wedding announcement sites for same-sex couples), will be heard in the 2022-23 term. This case will decide the issue left open in Masterpiece Cakeshop, namely whether a business owner has right to reject customers based on religious objections to the message being promoted by the client.
