WASHINGTON—The U.S. Supreme Court delivered what most religious liberty advocates declared an important victory in ruling Monday (June 27) the post-game, midfield prayer of a high school football coach did not violate the First Amendment’s ban on government establishment of religion.
In a 6-3 opinion, the justices decided the Bremerton (Wash.) School District actually violated the First Amendment rights of Joseph Kennedy by removing him as a coach because of its concerns his practice infringed on the Establishment Clause. In doing so, the majority acknowledged it no longer abides by a more than 50-year-old standard in church-state cases known as the Lemon test.
“[A] government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment,” Associate Justice Neil Gorsuch wrote in the court’s opinion. “And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.
“The Constitution neither mandates nor tolerates that kind of discrimination.”
Joining Gorsuch in the majority were Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett. Associate Justice Sonia Sotomayor wrote a dissenting opinion that was endorsed by Associate Justices Stephen Breyer and Elena Kagan.
Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), applauded the decision.
“As any Christian knows, our faith is deeply personal and rightly shapes every aspect of our lives,” Leatherwood said in an ERLC news release. “We live out our faith in any number of ways, both privately and publicly.
“Today’s case centered on the latter and the Supreme Court rightly determined that an individual employed by a school does not forfeit his or her constitutional right to free expression simply by entering ‘the schoolhouse gate’ or, as it were in this case, the field of play.”
The ERLC joined in three friend-of-the court briefs in support of Kennedy, two urging the Supreme Court to review rulings by the U.S. Ninth Circuit Court of Appeals and one in March calling for the justices to reverse the lower court. “The Establishment Clause, as properly interpreted, does not override the government’s duty to accommodate the free exercise of religion on a nondiscriminatory basis,” the most recent brief said.
The Ninth Circuit Court in San Francisco twice ruled against Kennedy, who was ultimately joined by some players and others in the on-field prayers. In a 2021 opinion, a three-judge panel of the Ninth Circuit Court said the school district would have violated the First Amendment’s Establishment Clause had it permitted Kennedy to continue to engage in his on-field, religious exercise after games.
In the court’s opinion, Gorsuch said, “Respect for religious expressions is indispensable to life in a free and diverse Republic – whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.”
The school district sought to “generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties. . . . Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds,” he wrote.
“In truth, there is no conflict between” the Free Exercise and Free Speech Clauses on one hand and the Establishment Clause on the other, according to Gorsuch’s majority opinion.
Leatherwood said the ruling reaffirms the following “aspect of constitutional law: our First Amendment rights travel together. We, and many others, have long held that religious liberty is our nation’s first freedom and that it bolsters and strengthens other foundational rights.”
“The Court today strengthened this perspective by writing that the clauses of free expression, establishment and free speech are all complementary,” he said. “If it were not already clear enough, this Court views religious liberty as a bedrock right in our free republic.”
The oft-criticized Lemon test became a subject of discussion during April’s arguments in the case, Kennedy v. Bremerton School District. The Lemon test was based on a standard offered in the 1971 Lemon v. Kurtzman opinion, which said a law must have a secular purpose, not primarily promote or restrict religion and “not foster an excessive entanglement with religion” to avoid a violation of the Establishment Clause.
In Monday’s opinion, Gorsuch said the school district and the Ninth Circuit Court overlooked that Lemon’s “ahistorical approach to the Establishment Clause became so ‘apparent’ [citing an earlier decision] that this Court long ago abandoned Lemon and its [government] endorsement [of religion] test offshoot.”
The Supreme Court has explained the Lemon and endorsement tests “’invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators,” Gorsuch wrote, again quoting a previous opinion. Instead, the high court has emphasized an “analysis focused on original meaning and history” has “long represented” its Establishment Clause doctrine, he wrote.
In her dissent, Sotomayor said the court’s opinion “is no victory for religious liberty.”
“It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all,” she wrote.
The high court “now goes much further” than its recent church-state opinions, “overruling Lemon entirely and in all contexts,” Sotomayor wrote. “It is wrong to do so.”
Becket, a religious freedom advocacy organization, tweeted, “We are thrilled that the Supreme Court recognized the importance of religious expression and finally buried the Lemon test that restricted religious expression.
“Religion should not be scrubbed from the public square just because it makes a few people uncomfortable. And a person’s faith – like Coach Kennedy’s – shouldn’t be forced to stay private.”
John Bursch, senior counsel for Alliance Defending Freedom, said in a written statement the high court was right to reverse the Ninth Circuit’s decision “that wrongly reasoned that Coach Kennedy’s personal, on-field prayers were not his own, but the government’s. American citizens don’t give up the right to prayerfully practice their faith during working hours when they accept a job with a public employer.”
Advocates for a strict separation between church and state decried the opinion.
Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said the decision “undermines religious freedom in public schools by holding that school officials must accommodate a public school teacher’s religious exercise at a school event.”
The court “pays lip service to religious freedom but throws out any concern about avoiding government pressure on students,” she said in a written release.
In 2008, Kennedy – an assistant coach with the Bremerton (Wash.) High School varsity team – began the practice of walking to the 50-yard line after each game, kneeling and briefly praying, thanking God for the players. Players eventually began joining him, and Kennedy, who was also head coach of the junior varsity team, continued to pray at midfield following games for the next seven years. He also reportedly gave motivational speeches to players on both teams who gathered around him.
During the 2015 season, the school district superintendent sent a letter to Kennedy telling him to refrain from the post-game prayers and from religious expression in his motivational talks to players. The superintendent said Kennedy’s practices likely violated the Establishment Clause. After abiding by the mandate for a few weeks, Kennedy returned to his former practice of praying at midfield and was joined by others.
The school district placed Kennedy on administrative leave as a result. The athletic director recommended the school not rehire him in 2016, and Kennedy declined to apply for a coaching position when a new varsity head coach was hired for the next season.
The article originally appeared in Baptist Press.