By Charles J. Russo
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, 2022, 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, 2022, 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.
Facts of the case
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.
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.
Two complicated clauses
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.
Moving forward
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, 2022, 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.
Charles J. Russo is Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law at the University of Dayton.
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don miller says
they upheld it because 6 of them actually know what the 1st amendment says.
Samuel L. Bronkowitz says
This wasn’t about school prayer, that has already been established. This was about retribution. So now it’s ok to coerce students into school prayer.
Robjr says
I’d like to know if the SCOTUS and/or the religious zealots would have been so accommodating if it was a Muslim wanting to pray.
Skibum says
I’m very concerned that our current make-up of the Supreme Court is so far out of step with the rest of America and is catering to the most extreme right-wing religious beliefs. America is on its way of becoming the real-world version of the TV series “The Handmaid’s Tale”. The real issue in this case that went before the Supreme Court, and they subsequently glossed over in their ridiculous ruling, was the inferred intimidation and subtle coercion of all of the team players to join the coach on the 50-yard line where he could be very publicly seen doing his performance prayer. It is great if individuals voluntarily joined in, but we all know the dynamics of team sports and the huge role that a coach plays, and holds sway over, each and every young student member of the team. It is not a reach to believe that any of those students who felt intimidated or pressured to do what they normally would NOT have done after a game might suffer the repercussions for failing to join in that performative prayer ceremony, because they are young, impressionable, and want to succeed. And probably just as important, they have already had it drilled into them that they are part of a TEAM and need to do everything as a team player, which in the case at hand is obviously to walk out onto that field after a game with the coach and BE SEEN joining their coach in performance prayer. Is that how individuals are supposed to pray? NO, of course not, unless you either want or NEED to be seen as being part of a team, for your own success. This case was and is about that inferred intimidation, and the inability of young students to be willing to stand up to that and say sorry, they do not wish to partake in that form of prayer performance because it might come back to bite them and hinder their standing or ability to play on the football team. THAT, in a nutshell, is what that case was about, and the Supreme Court majority got that decision absolutely wrong and should be ashamed of themselves. Unfortunately, we are seeing other similar wrongheaded decisions of this extreme court and should expect more of the same in the future as long as the court continues to be out of step with mainstream America.
don miller says
and did you like kapernicks performance act? or are some more acceptable than others? Not an issue of church and state separation with the coach nor kapernick so that argument is out the window. We don’t change the Constitution and the rules just because someone thinks 50% plus one other person don’t like them. There are rules for changing the rules. if the constitution says it is okay it is okay. period. don’t like it? try and do it the constitutionally provided way and get 3/4 of states to change it. That is why everyone wants in to America. We have rules to change the rules so matters are predictable. No anarchy!!
Skibum says
This Supreme Court case centered on a couple of issues, neither of which had anything whatsoever to do with the completely separate protest statement that Colin Kaepernick was making. When he went down on one knee (on the sideline, not the 50 yard line in the very center of the football field where EVERYONE could have watched him) during the playing of the national anthem, there was no religious issue… his issue was police shootings of black people. He also wasn’t gathering the other players to join him in a mass protest. Some other players on many teams thought he had a valid reason for doing what he did and did the same, but his was an individual protest statement that gathered steam from other players who agreed with him. Didn’t you see the many video clips during all of the hoopla and supposed outrage of people in the stands at games, some also not standing during the anthem, others ignoring it and having conversations, looking at their phones, actually leaving the stands to go to the restroom or get a beer and a hotdog, etc. So all of the fake outrage directed at him was ridiculous and manufactured by conservatives who were mainly offended by a black man having the audacity to protest in America, and wanted to put him and other blacks who would dare to do such a thing in their place. If you agree with his treatment, YOU might be part of the problem.
don miller says
you equated the coach’s praying to a performance prayer and i questioned whether you’d abhor kapernick’s routine because it was a performance. The coach was after the game win or lose so it was not performance based. Kap’s wasn’t either so I expect you’d accuse him of inappropriate theatrics also.
Pierre Tristam says
The comparison is absurd. The quarterback was not a school employee. He was protesting. Unquestionably, he also used his stage. But he wasn’t breaking the law. The coach was driven entirely by driven by theatrics: he needed the 50-yard line’s stage to spill, like Onan but for spectators, his piety.
don miller says
apparently, neither was the coach breaking the law per the supreme court. perhaps a policy but not a law. Maybe you could share with us your heart vision device that reveals one’s motivation with only a glance and no personal knowledge of a man nor the content of his character.
Pierre Tristam says
No device necessary, just a pair of eyes not to fall for the court’s lies: “The Christian Arrogance Behind Praying Coach’s Supreme Court Case.”
don miller says
non-christians commenting on Christianity?? Not the best source. Many call themselves Christians but ant that deny it is correct to proclaim Jesus at anytime should exam their salvation. The Bible says that to those that perishing the gospel is foolishness. ::Matthew 10:32 has Jesus saying::So everyone who acknowledges me before men, I also will acknowledge before my Father who is in heaven. I prefer the gospel according to Jesus. Jesus supports public prayer and proclamation. His opinion is the only one that matters. I highly recommend reading The Gospel According to Jesus by John MacArthur. Interesting to even the non-believer. Not MacA’s opinion but it is according to Jesus in His own words as proof. What better source could there be so why heed any other.=??? Jesus was/is the Gospel.-
Pierre Tristam says
The best scholarship on christianity has almost always been done by non-Christians. The bible is great literature and occasionally (but not often) an interesting ethical perspective, but it is certainly no reliable reference for law. That it has become so, thanks to our supreme court mullahs, only underscores how corrupted our constitutional standards are becoming by non-constitutional crutches. I prefer the gospel according to empiricism.
don miller says
any mention or proof he actually didn’t play talented players that did not join in? No! Then why the divisive assumption. Strawman tactic.
Pogo says
@Jesus wept
https://www.pbs.org/wnet/amanpour-and-company/video/rev-rob-schenck-pres-trump-used-the-bible-as-a-prop/
And so it goes.
JPK says
As politely pointed out by the minority, the majority mis-stated the fact in the Kennedy case – perhaps to reach the result they wanted.
The religious affiliation of the current Justices: Stephen Breyer and Elena Kagan are Jewish; John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett are Catholic; and Neil Gorsuch is Episcopalian, but was raised Catholic.
4 Catholic Justices (Alito, Barrett, Kavanaugh, and Thomas) and former Catholic Gorsuch voted to overturn Roe – a 49 year precedent.
5 Catholic Justices (Alito, Barrett, Kavanaugh, Roberts and Thomas) and former Catholic Gorsuch voted to overturn Lemon – a 51 year precedent.
It appears that Senator Dianne Feinstein was correct when she commented during the Judiciary Hearing on Amy Coney Barrett that the dogma speaks loudly.
Brynn Newton says
Matthew 6:5–6
5 “And when you pray, you must not be like the hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward. 6 But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your Father who sees in secret will reward you.
JimBob says
Indeed, but the whole point of evangelical christianity is to be seen to be christian not to actually be christian. Many of them revel in the family dynasties and riches that they have created out of the business of God, e.g., Falwell, Graham, Meyer, Jeffress and Bakker.
don miller says
that’s a wild statement. any proof? No! than why bother with that statement? Families of believers evangelizing the gospel is bad?
Sherry says
@JimBob. . . what you have pointed out is the “Very Least” of Christian atrocities. . . research the “Christian Religious EXECUTIONS/MURDERS” of hundreds of thousand innocent people during the “Crusades”, the “Inquisition” and, the “Genocide” of the Native Americans, and on and on:
https://en.wikipedia.org/wiki/Christianity_and_violence
Laurel says
Thank you Brynn Newton, excellent quote. Egos are so tiresome these days.
don miller says
the context needs exposition. It was the manner and content of the Pharisees’ prayers in Matthew that were objectionable to Jesus. The prayers were offered up make them appear holier than thou to there congregations and were insincere. It had nothing to do with the location. Jesus prayed in public. Jesus knew their hearts were corrupt and they were doing it for recognition. I don’t believe anyone knows the coach’s heart so is is not comparable situation. There are many online expositions and commentaries you can research to learn more.
Laurel says
The Republican activists in robes are at it again. Why bother looking for justice, you won’t win unless your ideology is the same as theirs. Justice is no longer blind.
When someone of authority kneels on the 50 yard line to *pray*, it is only to be seen. “Look at me, I’ll holier than thou. Watch me speak directly to God.” It’s not freedom of speech, it’s not praying, it’s showing inflated ego. Whatever company you work for, when you are on the job you represent that company. What you do in private is your business. Can his tedious ass.
Laurel says
“Look at me, I’m holier than thou…”
Skibum says
You are absolutely right. I’m reminded of something said to me years ago before I retired. If you are ever caught by your boss sitting and not moving with your eyes closed at work, the perfect response when yelled at is to raise your head, open your eyes and say AMEN so all can be forgiven.
don miller says
we should all be so lucky as to have a coach who is fearless.
Laurel says
don miller: “we should all be so lucky as to have a coach who is fearless.” “…fearless”? What on God’s green Earth (if you will) is fearless about showing off? In fact, he’s trying to win the attention of those in agreement. Whatta guy.
These far right wackadoos need to mind their own damned business and leave the rest of us alone.
don miller says
fearless about what people think of him, say of him or as we know now illegally persecute him. that was fairly obvious.
Dennis C Rathsam says
Our founding fathers, believed in God. These patriots in time of war wrote the Declaration of Independence so everyman could be free. Even our money states in god we trust. This is the problem of 21 century, too many people have strade away from relegion. Many of todays families, dont go to church, dont believe in god, & dont believe in heaven. I believe the desicration of family values is the reason for all this murder, & mayhem. Look what the USA used to be, & look at it now.Everone from my generation, I was born in 53. Ive seen alot in my 69 years, the world was a better place then, America was strong, and we all went to church. Prodistants, Catholics, every Sunday. My Jewish friends went on Sat. We all got along, we thrived. Im not a hollyroller, but Im not blind either. Help your children, teach them about God, & Jesus. For when ever else fails, the power of prayer will get you & them through the tuff times of life. The family unit must remain strong, and lead the way to a better life.
Laurel says
Dennis:
God started entering our country’s language in the 1950’s, not with our country’s forefathers.
I was born in 1952 and all was definitely not perfect. My mom was denied social security because she was a stay at home mom and did not remain married to my father for ten years, no matter what. Women were paid even less than men than they are now, if they were able to find a job. Women had illegal abortions that killed or maimed them. Women were treated like cattle.
The KKK were very much around, and played with their favorite pastime of burning crosses and terrorizing people. I watched four young, black men berated by a crowd simply because they wanted hamburgers at Royal Castle. If a black person went into a “white” pool, it was drained. On a back road to Indian Town, there was a fork in the road with a white dot on one side of a sign and a black dot on the other side, letting us all know who belonged where. Blacks were not allowed at the beaches.
Gays married straight people, ruining both lives in order to be accepted. Trans people were simply out of the question even though they existed. Many were killed.
People were blackballed for being communists, whether they were or not. Being an atheist was not a good thing to be brought up.
So I don’t know what “Father Knows Best” show you lived in, but much of this stuff I mentioned has convinced me that organized religion is just another club with self appointed, self righteous bores with seldom anything of value to say. Sorry.
Laurel says
I just realized that the dot sign was on the way to Immokalee, FL, not Indian Town. My bad. Good night.
don miller says
some of the most divisive situations we have in our Country is the lack of knowledge which leads to substituting opinion and what seems right to different individuals for the real facts.. Read the Declaration of Independence. It clearly states that the founders were honoring God and giving Him praise for their well reasoned claim of independence. It did not just start in the 1950s. In Congress, July 4, 1776
The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–
Pierre Tristam says
People have been fabricating false pieties around the founders’ intentions since our latest taliban-like revival here. Doesn’t make it accurate. The founders were up for a little theatrics for the masses here and there, but an atheist wrote the Declaration of Independence, and the only thing these men were “honoring” is their disdain of King George. A few years later at the constitutional convention, they’d been at it a month and three days when Benjamin Franklin, on that 33rd day, proposed that they open the session with a prayer. His colleagues told him to stuff it, and got back to work. No less than the hagiographer Carl Van Doren reports that in his biography of Franklin. Or as Gordon S. Wood put it in the more recent Empire of Liberty, “Most of them, at best, only passively believed in organized Christianity and, at worst, privately scorned and mocked it.” So please don: keep your historical disinformation out of these pages, or we’ll do it for you. It’s getting tiresome.
Ray W. says
Don miller’s comment raises several interesting points. I wish to focus on two of them:
Why did our founding fathers utilize the term “Nature’s God”?
Why did our founding fathers utilize the phrase “endowed by our Creator with certain inalienable rights”?
Some religious philosophers point to a document released by one of King Charlemagne’s ministers at around the turn of the 9th century that established King Charlemagne’s responsibility to not only rule the people but to protect them. In essence, the issue was no longer strictly the divine rights of kings but the idea that God created kings to rule and to protect the people, i.e., God willed King Charlemagne to rule and protect the people and created him for that purpose. This alteration in the concept of God’s plan quickly took root throughout Europe, and with deep roots at that.
While I have commented about the plays of Agamemnon and their likely role in establishing the right to jury trials via the Magna Carta, signed by King John in 1215, I have barely touched on other rights established in that Great Charter. One of those other rights was the right of the barons to rebel against King John for claimed damages from wrongful or neglectful royal action, but only to the limit of recouping the costs of the rebellion, plus the original value of the damages caused by the king that led to the rebellion. Once the costs and damages were recouped, the barons were required to swear obedience once again to King John, because God had created kings to rule and to protect men, i.e., God willed it.
Skipping forward nearly 400 years, one can read the Act of Abjuration, published by Dutch leaders who declared independence from the King of Spain due to acts committed by the king’s minister, the hated Duke of Alva. In the Act of Abjuration, the Dutch described sending emissaries to the Spanish court to complain about the Duke’s actions, but the king failed to hear their claims. The Dutch wrote that kings were created to protect the people and when the king did not hear the people’s plea for help, the king was a tyrant and not a king. Since God did not create tyrants, the Dutch announced that they had a right to rebel, but they chose their own king to rule them, the Prince of Anjou. Once again, the people believed they had the right to rebel, but they did not have the right to establish their own government, because God willed kings to rule and to protect men.
It is easy to argue that the language set forth in the Declaration of Independence is lifted almost verbatim from the Acts of Adjuration. To our founding fathers, a king who refused to listen to his subjects was not a king, but a tyrant, and the people had the right to rebel against tyrants. This time, however, our founding fathers did not choose another royal ruler; they chose to establish their own government apart from royal rule.
One major change in religious philosophy had taken root between the issuance of the Act of Abjuration in 1581 and the Declaration of Independence in 1776, which arguably arose from the Glorious Revolution in 1688, when the British parliament stood up to King Charles II, establishing the primacy of parliament over the king. This moment in time is considered the founding event of the conservative movement.
The act of Parliament standing up to the king occurred during a time of religious philosophical challenge to King Charlemagne’s concept of God creating kings to rule and to protect men. Perhaps Voltaire was one of the great leaders of the religious challenge, but he was not the only one. Voltaire characterized the argument as whether God was the ship’s captain or the ship’s builder. If God was the ship’s captain, then men had to obey kings, because God willed it, i.e., God created kings to rule and to protect men. If God was the ship’s builder, then men had the necessary free will to captain God’s ship. In more modern times, the debate is whether God is my co-pilot or whether God is my pilot. The vast majority of WWII airmen, including my father and his two brothers thought of God as their co-pilot.
To the Tories who opposed rebellion against King George III, God was the ship’s captain, and it was treason against God’s will to rebel against the king.
To our founding fathers, God was the ship’s builder, i.e., God had created Nature and men had the inalienable right to captain Nature’s ship. To our founding father, they possessed the inalienable right to rebel against a king who behaved as a tyrant.
Perhaps this helps explain why our founding fathers used the phrase “Nature’s God” in the Declaration of Independence. To the leaders of the rebellion, God built the earth and men inherited it, allowing them free will to choose to rebel against a tyrannical king. And, to our founding fathers, God did endow them with inalienable rights, which they had the free will to use to declare themselves independent. But our founding fathers never thought that they could live without a government. After all, men did have to be ruled. So, they created a Continental Congress. Then, they created the Articles of Confederation. Then, they created our great liberal democratic Constitutional republic. They hoped the experiment would create men (and women) of virtue, but they feared partisan politics and mob rule, so they created checks and balances so that no one person would ever achieve unlimited power for an indeterminate period of time.
In summary, just as the conservative movement has been derailed from its original mooring of arising from congressional resistance to the executive branch, so too has the religious argument veered away from its true meaning at the time of the revolution. If our founding fathers had believed that God was the ship’s captain, they would never have replaced King George III with a liberal democratic Constitutional republic; they would have achieved concessions from the king and then sworn allegiance once again to the king, because God willed it.
Pogo says
@Ray W.
Movingly, and brilliantly well said.
I believe many people might be enlightened by your thoughts on this:
The “good old days”?
https://www.google.com/search?q=19th+century+reforms+in+england
@Everyone
One of the major reforms in the referenced link is only the foundation of modern policing. I’m confident Ray W., and any minimally adequately educated LEO are already well versed. The rest of you could learn a lot.
@Ray W.
Murdoch, Koch, Mercer, et. al., are well on their way, with their recently purchased SCOTUS, to returning us (and the US) not to the 1900s, but the 1800s.
Any thoughts?
Ray W. says
Many thoughts, but the issue is far too complex to warrant a quick reply. I may ponder the issue for a time. However, my initial thoughts arise from C. S. Lewis’ Abolition of Man and Alexander Hamilton’s initial great question in the opening paragraph of Federalist Paper #1. The issue is not whether we are going back to the 1800’s, but whether we are coming unmoored from the concept of liberalism, based on the rule of law, human rights, and individual rights, and that we are about to enter a new phase of violent dispute over what it means to be free.
Pogo says
@Ray W.
Thanks for the courtesy of your reply. IMO, we aren’t coming, or about to — we are.
I would very much like to hear from you, and any of the other sane commenters, how we survive.
Thanks.
Gary R says
Fact check: Did Tim Tebow kneeling for God on the field upset the NFL?
https://religionunplugged.com/news/2020/month/day/fact-check-tim-tebow-nfl-kneeling
don miller says
yes it did.