Kennedy v. Bremerton: The Wall Separating Church and State Just Got a Little Shorter
Brett A. Geier
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
If you’d like to check out other articles in this series, click here.
Kennedy v. Bremerton was heard by the Supreme Court in 2022. But the case truly began in 2015 when Joseph Kennedy, a part-time football coach for Bremerton High School, began praying at midfield after the games – first alone, then joined by coaches, players, and some players from the opposing team at the invitation of Coach Kennedy. When the school district learned of Coach Kennedy’s activities, they noted their disapproval, citing a violation of the Establishment Clause, and precluded him from engaging in the activity in future games. After a brief hiatus, Kennedy notified the school district that he intended to resume his prayers at the next game. Subsequently, the next game was marred by chaos as spectators and reporters bowled over members of the band to join Coach Kennedy at midfield after the game. The district, having witnessed the spectacle, offered Coach Kennedy the opportunity to pray at other locations or after the crowd had dispersed. But Coach Kennedy continued his ritual, was suspended and, ultimately, was discharged. The district relied on two factors for Kennedy’s dismissal: his failure to follow district policy and his failure to supervise his student-athletes after games due to his interaction with the media and the community.
Kennedy proceeded to file suit, arguing that the school district had violated his rights under the Free Speech and Free Exercise clauses of the First Amendment. In a 6-3 decision (along ideological lines) released in June 2022, the Supreme Court evaluated the balance of free speech and religious liberty against the Establishment Clause and gave more weight to the former, as has increasingly been the case. The decision was ultimately found in favor of Coach Kennedy.
Writing for the majority, Justice Gorsuch contended that the district had disciplined Kennedy for simply praying quietly, without his players, following three games in October 2015. But Justice Sotomayor in her dissent raised a point of contention regarding Justice Gorsuch’s vexing summary of the facts. The discipline by the district was not, she wrote, for the three games after he had been disciplined without players. Instead, Sotomayor amplified, correctly, that earlier parts of the timeline are wholly relevant.
First, prior to the disciplinary action against Kennedy, on more than one occasion, coaches, players, and community members sought to join Kennedy in his post-game prayers. On one occasion, there was even a stampede to join him – hardly the private moment that the majority of the Justices are attempting to relate (Justice Sotomayor included pictures in her dissent demonstrating this point).
Second, Sotomayor noted that the majority Justices ignored the coercive effect of Kennedy’s action. Attending a football game on a Friday night is a quintessential activity for many public school students. To argue that they are not required to attend a school-sponsored athletic event and, thus, are not forced to be exposed to a coach praying is misguided. As young students are impressionable, seeing authoritative figures, peers, and community members joining Coach Kennedy at mid-field is a coercive activity. If Coach Kennedy were truly sincere about engaging in a solemn, private, and quiet period of reflection, then why would the district’s suggested private location be incongruous and offensive to his desire?
There is no greater acrimony in state and federal jurisprudence encompassing education than that of the regulation of religion in schools. The Religion Clauses found in the First Amendment of the United States Constitution delineate the rights, restrictions, and responsibilities for restricting coercion of religion in public forums, such as public schools, yet ensures individual rights to practice their religion of choice. The Establishment Clause mandates that no state entity can “establish a religion,” essentially proscribing state-sponsored religion and thus prohibiting state organs from indoctrinating or proselytizing any type of religion. The Free Exercise Clause protects the right of individuals to practice their religion as they please, ensuring that public schools do not prohibit students from exercising their religious rights. From the 1940s through the 1970s, the Supreme Court developed a “separationist” approach to religion in public schools, attempting to maintain a high wall of separation between public entities and religion while protecting the individual rights of religious minorities to express their views.
Multiple legal contests have been adjudicated across the judicial hierarchy in an attempt to balance these clauses so as to promulgate the proper relationship between religion and public schools – a process which has given rise to the recent holding in Kennedy v. Bremerton. In 1962, the Supreme Court invalidated a measure required by a school board on Long Island, New York that required teachers to open each school day by leading their students in a prayer that the New York State Board of Education had crafted. A year later, the Supreme Court went further, invalidating state laws requiring the recitation of the Lord’s Prayer and the reading aloud of scripture.
These cases represent the genesis of disallowing school-sponsored prayer in public schools, which, theoretically, ensures public schools neither establish a religion nor coerce students toward a certain religion. At the same time, schools must protect the religious rights of individuals to maintain neutrality – an arduous duty. Despite the precedence and guidance established by the Supreme Court, conservative groups have not acquiesced to these decisions and have fought hard in the opposite direction.
In 1971, the Supreme Court created the Lemon test, a tripartite examination emanating from the Lemon v. Kurtzman case. This test sought to provide a lucid formula for the courts to use to examine Establishment Clause conflict, rendering violative any law or policy that was determined to be not secular in purpose; that advanced or inhibited religion; or that excessively entangled a government organization in religion. The Lemon test has continually been applied in lower courts, but the conservative jurists on the Supreme Court have continued to advocate for its erosion and ultimate disuse. This direction is aptly illustrated by Justice Scalia’s hatred in his concurring opinion in Lamb’s Chapel v. Center Moriches Union Free School District (1993): “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.”
Justice Gorsuch in the Kennedy decision wrote that the Court had long abandoned the Lemon test, his statement effectively declaring its complete demise. Supreme Court protection against religion permeating public schools has been waning, from the dissents of conservative Justices in the 1970s to today with the emphasis on religious protection becoming the norm. Justice Sotomayor identifies this change, stating: “The Court now charts a different path, yet again 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 interpretation of the Religion Clauses of the First Amendment in Kennedy v. Bremerton confirms what legal scholars have long believed to be the goal of conservative jurists: the erosion of the demarcation between church and state and the favoring of the protection of religious activities by individuals or groups that are congruous to school-sponsored religion. The conservative justices espouse the theory that any law prohibiting the establishment of religion must be interpreted to accommodate religious participation in government and government support for religious institutions.
The predicate to much of the argument in this case concerns whether the students were coerced to participate in prayers with Coach Kennedy. In defense of his actions, Coach Kennedy declared that he “never told any student that it was important they participate in any religious activity, [nor] pressured or encouraged any student to join.” The Court, in its holding, relied on the claim that they would need a direct request from Coach Kennedy encouraging students to join the prayer as evidence of coercion. Even then, evidence of this kind of request exists: in September 2015, an opposing coach warmly contacted the Bremerton High School principal to articulate his pleasure of having Coach Kennedy invite the opposition to join him in the post-game prayer. Whether or not this action is perceived as coercion, it does reveal a desire on Coach Kennedy’s part to develop this activity into something more than private, quiet reflection. In the evidentiary record, it was summarized that some students reported joining Coach Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Justice Sotomayor, in her dissent, noted that the Court, “fail[ed] to acknowledge the unique pressures faced by students when participating in school-sponsored activities.”
Anyone who has ever coached or advised a school-sponsored group of students is lucidly aware that the supervision of those students begins well before the activity commences and does not end until each student is returned to his or her parents upon completion of the activity. For the majority of the justices to contend that Coach Kennedy had fulfilled his coaching and supervising duties and was considered “off-duty” is alarmingly in error. Students participating in the prayer activities were still dressed in full football equipment, had yet to shower, had yet to be returned to their parents, and most certainly were still under the school’s custody. This simple set of inarguable facts demonstrates that Coach Kennedy was, in fact, carrying out his duties as prescribed by the district in attire bearing the imprimatur of the school and team. The inexpiable conclusion by the majority that Coach Kennedy was on duty demonstrates the length to which the conservative bloc of the Court will go to protect religious expression in public schools to the detriment of democratic principles.
Kennedy v. Bremerton is another example of the Court seeking to overturn precedent this year, amplified by the recent Dobbs v. Jackson decision overturning 50 years of women’s health rights. These decisions are the culmination of a conservative ideology insistent that the Court has misapplied the law for years and that the conservative bloc on the Court is able to correct these perceived wrongs. In The Good News Club: The Christian Right’s Stealth Assault on America’s Children (2012), Katherine Stewart correctly identified that the Court is predicating its decisions on a religious and political philosophy endorsed by conservative ideologists. These factions strongly believe that conservative Christianity must be disseminated in the venue of public schools. These Christian nationalists, as Stewart terms them, endorse Christianity in public schools, a position articulated by Jerry Falwell in 1979: “I hope to see the day when, as in the early days of our country, we don’t have public schools … The churches will have taken them over again and Christians will be running them.” The Christian nationalists see the erosion of the wall of separation between church and state as beneficial to their mission. If they cannot break down the doors to the schools, they will be quite content to break the schools.
I truly wonder the extent to which the Court would rise to protect Free Exercise rights should the coach have been a Muslim, carried his prayer rug with him, and had extra rugs for students who solely and independently elected to join in prayer to Allah, with disgusted looks or crowds staying to heckle those who participate. Public schools are a prominent symbol of our democracy; it is crucial that the state keep out divisive forces. Viewpoint neutrality is a core tenet needed to provide an egalitarian experience for all students in public schools. Students are uniquely positioned as captive audiences who are susceptible to coercive pressure. The preservation of the Establishment Clause is necessary to combat the over-emphasis and misapplication of the Free Exercise Clause. Such misapplication provides the opportunity for direct and indirect persuasion of religious tenets by those in authoritative positions in public schools, leading to student perception on the part of students that they must participate in those activities or risk limited educational opportunities. ♦
Brett Geier is an associate professor at Western Michigan University in the Department of Educational Leadership, Research, and Technology. His primary research areas focus on various public school law and finance topics.
Geier, Brett. “Kennedy v. Bremerton: The Wall Separating Church and State Just Got a Little Shorter.” Canopy Forum, August 15, 2022. https://canopyforum.org/2022/08/15/kennedy-v-bremerton-the-wall-separating-church-and-state-just-got-a-little-shorter/