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Informed Citizens

are Better Citizens

by Suzi Morales

In June 2022, the U.S. Supreme Court upheld the right of a football coach employed at a public school to pray on the field after games. The Court’s decision illustrates the complexity of interpreting the five clauses in the U.S. Constitution’s First Amendment.

The case, Kennedy v. Bremerton School District, involves Joseph Kennedy, an assistant high school football coach for the Bremerton School District in Bremerton, Washington, who prayed alone and with students. When the school district learned of Coach Kennedy’s activities, they communicated with him over time about possible limitations on his activities. Eventually, he was suspended and did not return to coaching the following year.

In August 2016, Coach Kennedy sued the school district in the U.S. District Court for the Western District of Washington to get his job back. The district court ruled for the school district, a decision that was upheld by the Court of Appeals for the Ninth Circuit. Coach Kennedy’s attorneys appealed that decision to the U.S. Supreme Court. After sending the case back to the lower courts, the U.S. Supreme Court granted the request for review in September 2021.

Schools can’t punish quiet, personal prayer

The U.S. Supreme Court held 6-3 that the school district could not fire Coach Kennedy for “engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.”

The First Amendment protects five freedoms—speech, religion, press, assembly and the right to petition the government. Specifically, the First Amendment says:

“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.”

The Kennedy case examined three specific clauses of the First Amendment—the Establishment Clause, the Free Speech Clause and the Free Exercise Clause. The school district stated that it was concerned that allowing Kennedy to pray publicly would mean that it was endorsing his religion, which would violate the First Amendment’s Establishment Clause that bans government endorsement of religion.  Kennedy, on the other hand, argued that the school district violated his rights under both the Free Speech and Free Exercise clauses.

“These Clauses work in tandem,” Justice Neil Gorsuch wrote in the Court’s majority opinion. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”

The majority opinion focused on Kennedy’s actions after his discussions with the school board. By that time, he had limited his prayer to silently praying alone on the 50-yard-line. He did not invite students to join him, though students and others prayed alongside him. The majority in Kennedy took the position that, given the “private, quiet prayer” of Coach Kennedy, there was not a conflict among the various clauses of the First Amendment in this case.

No more lemons

The Kennedy decision also overruled a 1971 U.S. Supreme Court decision that had applied a balancing test to Establishment Clause cases. In Lemon v. Kurtzman, the Court established a three-part test, called the Lemon test, in which the court “must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority” to determine whether the law violates the Establishment Clause of the First Amendment.

According to David Callaway, a religious freedom specialist at the Freedom Forum, a non-profit whose mission is to foster and educate about First Amendment freedoms, the Lemon test has not played a major role in U.S. Supreme Court Establishment Clause cases in about 30 years, although lower courts still use the three-factor test. During the oral argument in the Kennedy case, Callaway notes that Justices Neil Gorsuch and Brett Kavanaugh made statements indicating a position that Lemon was no longer in use. The majority opinion reflected that.

“In place of Lemon and the endorsement test,” Justice Gorsuch wrote in the opinion, “this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

In Justice Sonia Sotomayor’s dissenting opinion, she criticized the consideration of “historical practices and understandings,” stating that, “While the Court has long referred to historical practice as one element of the analysis in specific Establishment Clause cases, the Court has never announced this as a general test or exclusive focus.”

Dissent emphasizes coach’s public actions

While the majority opinion characterized Coach Kennedy’s actions as quiet, private prayer not performed in front of students, the dissenting opinion highlighted the coach’s earlier actions, which included inviting students to pray with him, giving religious post-game speeches, and going on a media tour after his case began making headlines. The dissenting opinion also cited amicus curiae “friend of the court” briefs filed by students stating that they felt coerced to participate in prayer.

Justice Sotomayor’s dissenting opinion included photos of Coach Kennedy praying in the center of a group of students and emphasized the ban on the establishment of religion by the government, warning against students being forced to participate in religious activity.

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state,” Justice Sotomayor wrote. “Today’s decision elevates the rights of a school coach who voluntarily accepted public employment, over the rights of students required to attend public schools and who may feel obligated to join in prayer.”

In her opinion, Justice Sotomayor wrote quite a bit about the possible coercion felt by students. Other organizations were concerned with that issue as well.

“The ruling will open the door to organized prayer in schools and hinder future challenges to religiously coercive activity,” the Anti-Defamation League said in a statement issued after the Kennedy decision was released.

“Students look up to their teachers and coaches as role models and seek their approval,” Justice Sotomayor wrote. “Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”

Callaway says reading the majority and dissenting opinions in this case “made it feel like there were two different cases.” He also notes, however, that the majority’s interpretation of a right to quiet, personal prayer does not represent a major shift in the state of First Amendment law.

Similar NJ case—different outcome

In 2008, New Jersey courts dealt with a similar religious liberty case. Borden v. School District of the Township of East Brunswick also involved a football coach that prayed with players, cheerleaders and other students before and after games. Marcus Borden had been the head football coach at East Brunswick High School since 1983 where he led his team in a pre-game prayer, as well as pre-meal grace. When students and parents expressed discomfort with these religious practices, the coach was asked to stop. He did not, and in 2005 sued in the U.S. District Court for the District of New Jersey, claiming East Brunswick’s policy violated his right to free speech. The school district maintained its policies were designed to adhere to the separation of church and state.

The district court sided with Coach Borden in 2006, ruling that the school district had violated Borden’s First Amendment rights by making him refrain from participating in team prayers. The court said the coach should be allowed to bow his head and bend his knee when the team captains led the players in prayer. The school district appealed to the U.S. Court of Appeals for the Third Circuit. A three-judge panel overturned the lower court’s decision.

“The conclusion we reach today is clear,” Judge D. Michael Fisher wrote in the court’s opinion, “because he organized, participated in and led prayer activities with his team on numerous occasions for 23 years, a reasonable observer would conclude that he is continuing to endorse religion when he bows his head during the pre-meal grace and takes a knee with his team in the locker room while they pray.”

When the ruling was announced, Richard B. Katskee, assistant legal director of Americans United for Separation of Church and State, who represented the East Brunswick School District, said, “The bottom line is that all public school activities, including athletics and cheerleading, should be free from religious pressure, direct or indirect. No student should ever get the impression that you’ve got to pray to play.”

Coach Borden’s attorneys appealed to the U.S. Supreme Court; however, they were denied a review, which means that the appeals court decision stands. While the Court’s decision in Kennedy doesn’t change anything for the New Jersey case, if a similar case were to be brought today, the facts might be analyzed differently and result in a different outcome.

What Kennedy means for students

Following the decision in the Kennedy case, Callaway notes that it is important for students to understand their own rights in public schools. He says that the Free Speech and Free Exercise clauses of the First Amendment allow students to pray in public schools as long as their prayer doesn’t cause a disruption. On the other side of the coin, Callaway says students should not be forced to pray as part of their education.

Discussion Questions

  1. In the U.S. Supreme Court’s decision in Kennedy v. Bremerton School District, do you agree or disagree that Coach Kennedy’s free speech rights were violated? Explain your reasoning.
  2. The dissenting opinion in the case focused a lot on the possibility of students feeling coerced into praying. Have you ever felt pressured to do something you didn’t want to do? How did it make you feel?
  3. Compare and contrast the Kennedy case and the New Jersey case mentioned in the article. What are the similarities and differences and how do you think they affected the eventual outcomes of the cases? Explain your answer.


 More Religious Liberty Cases Decided at the U.S. Supreme Court

In addition to Kennedy v. Bremerton School District, the U.S. Supreme Court handed down rulings in two other religious liberty cases at the end of their term in June 2022. Those cases are Carson v. Makin and Shurtleff v. Boston.

Carson v. Makin

The case of Carson v. Makin concerned a Maine state program that provides tuition money to students in rural parts of the state to attend private schools if there is no public high school in their area. If a public high school is not an option, the state will pay up to $11,000 toward tuition at a private school, provided the school is not religious.

The two schools at issue in Carson were Bangor Christian School and Temple Academy. In court documents, Maine alleged that both schools discriminate against other religions, as well as LGBTQ+ students and teachers.

In a 6 to 3 decision, the Court ruled the state of Maine could not withhold state-funded tuition vouchers to a school simply because it is religious.

“There is nothing neutral about Maine’s program,” Chief Justice John G. Roberts wrote for the Court’s majority. “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

In a dissent, Justice Sonia Sotomayor wrote, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. The majority, while purporting to protect against discrimination of one kind, requires Maine to fund what many of its citizens believe to be discrimination of other kinds.”

Chief Justice Roberts, however, contended, “Maine’s decision to continue excluding religious schools from its tuition assistance program…promotes stricter separation of church and state than the Federal Constitution requires.”

While Carson was making its way through the court system, the Maine Legislature strengthened the Maine Human Rights Act, which bans discrimination based on race, gender, sexual orientation, ethnicity, or disability. The strengthened law clarifies its scope relating to education, making it clear that discrimination in education based on the above criteria violates the Maine Human Rights Act.

In a statement, Maine’s Attorney General Aaron Frey said the education provided by the two schools in question is contrary to public education. “They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” Frey said.

Jamison Coppola, a spokesman for the American Association of Christian Schools, said in a statement, “We don’t look at it as discrimination at all. We have a set of principles and beliefs that we believe are conducive to prosperity, to the good life, so to speak, and we partner with parents who share that vision.”

Shurtleff v. Boston

In a unanimous decision, the Court ruled that the city of Boston was wrong to prohibit a Christian group from flying a ceremonial flag in front of city hall. There are three flagpoles in front of Boston City Hall—one flies the U.S flag, another flies the state flag of Massachusetts and the third usually flies the flag of Boston. Occasionally, however, the city allows certain groups to temporarily replace the Boston flag and fly their own flags to raise awareness for certain causes, for instance, gay pride. Over a 12-year period, the city allowed 284 such requests from various groups.

In 2017, the city rejected a request from Camp Constitution, who wanted to fly a “Christian flag.” The flag was red, white and blue, and featured a red cross on a blue square. Boston officials wanted to avoid a violation of the U.S. Constitution’s Establishment Clause, which forbids government endorsement of religion. The director of the group, Harold Shurtleff, sued on free speech grounds.

The Court held that the use of a religious-themed flag in this way on government property was not government speech and, therefore, was not a government establishment of religion. The Court’s ruling declared that Boston violated Camp Constitution’s free speech rights and should not have banned the organization from flying its flag.

“While the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag railings [flag poles] as private, not government speech—though nothing prevents Boston from changing its policies going forward,” Justice Stephen G. Breyer wrote for six members of the Court (the other justices wrote concurring opinions). –Jodi L. Miller

Glossary Words
—when a decision from a lower court is reviewed by a higher court.
concurring opinion—a separate opinion delivered by one or more justices or judges that agrees with the decision of the court but not for the same reasons.
dissenting opinion—a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
majority opinion—a statement written by a judge or justice that reflects the opinion reached by the majority of his or her colleagues.
overturn—in the law, to void a prior legal precedent.
upheld—supported; kept the same.

This article originally appeared in the fall 2022 issue of The Legal Eagle.