OOn Monday, the U.S. Supreme Court overturned decades of precedent governing the separation of church and state and achieved one of the Christian right’s longest-standing goals: the return of official Christian prayer. in public schools.
Kennedy v Bremerton School District had a strange path to the Supreme Court. Originally filed in 2015, the case involves Joseph Kennedy, a former football coach at a public high school in a Seattle suburb, who sued the community that employed him for religious discrimination after the school objected to his habit of making public and ostentatious Christian prayers on the 50-yard line during football matches, surrounded by young athletes. Kennedy lost at the district and circuit levels; he moved to Florida in 2019, which technically should have rendered his case moot. But the Supreme Court still agreed to hear his case. This week, they ruled in his favor, 6-3.
The facts of what happened with Coach Kennedy in the school district are disputed, but only because Kennedy himself keeps revising them. In allowing Coach Kennedy to pray publicly at school, while performing his official duties as a public official, Justice Neil Gorsuch, writing for the majority, characterized the prayers this way: “Mr. Kennedy prayed during a time when school employees were free to talk with a friend, call for a restaurant reservation, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise busy.
Sam Alito, with his agreement, asserted that Kennedy “acted in a purely private capacity”. This is Kennedy’s version of events. But the evidence suggests things looked different. In her dissent, Judge Sonya Sotomayor questioned the idea that the coach offered his prayers “quietly, while his students were otherwise busy”. She included a photo of Coach Kennedy during one of her nightly prayers. In the photo, he stands surrounded by a dense group of dozens of high school footballers, in uniform and kneeling at his feet. Kennedy speaks with a football helmet in his hand, stretched above his head in what looks like a gesture of command. Spectators can be seen in the background, watching from the stands. Quiet and private it was not.
The court held that the school was required to allow this: that by attempting to maintain the separation of church and state—as required by the Establishment Clause of the First Amendment—they were in fact violating Coach Kennedy’s free exercise rights. Thus, the court allowed the Free Exercise Clause to effectively override the Establishment Clause, denying Americans like Coach Kennedy’s students the freedom of religion that the church-state divide had previously afforded them. . It should not escape us that in making this decision and overturning a decades-old test to establish the effectiveness of measures of separation of church and state, the court relied on a version of the facts which is patently false.
All of this could have been avoided, for in fact, during Kennedy’s tenure, the school district struggled to balance the coach’s desire for prayer with its own obligations to remain religiously neutral. Since he started coaching in 2008, Kennedy, an evangelical Christian, first prayed to himself at games, a practice no one had a problem with. He says he got the initial idea for a movie, the 2006 low-budget Christian football drama “Facing the Giants,” which he saw on television. The film features a fictional coach who prays with his high school football team. But at some point, Kennedy’s prayer became louder and more public. He stood on the 50-yard line just after the final whistle and prayed out loud. The teenage athletes, both on his team and on the opposing side, knelt with him in a great scrum; Kennedy mixed her prayers with pep talks. Kennedy says the visible center of the field was an important place for him. “It made sense to do it on the battlefield,” he told reporter Adam Liptak.
It was these public prayers, conducted while Kennedy was acting in his official coaching capacity, that became a problem. The school tried to accommodate Kennedy, offering him ways to exercise his faith that did not involve the students and risked giving the impression that his religion was endorsed by the public school. Kennedy refused and hired a lawyer. He eventually left school – voluntarily – and began to claim that the district’s policies amounted to both religious discrimination and a violation of his free speech rights.
Kennedy and the First Liberty Institute, the conservative legal group funding his lawsuit, have tried to portray him as a First Amendment hero. Prior to his departure from Bremerton, Kennedy spent months working with his media-savvy legal team to draw attention to his own prayers. Football games have become a chaotic mess of culture war politics, with journalists, politicians and evangelical Christians flocking to the field to watch Kennedy’s demonstrations and join him in prayer. Parents complained of the chaotic “rushes” of Kennedy fans, who ran with phones stretched across the stands to join his prayer circles at the end of games, sometimes knocking people over. The players were made uncomfortable, with one telling his father that he feared that if he didn’t pray, he “wouldn’t play so much”. The other coaches weren’t thrilled either. Indeed, school district-sponsored football games were more about Kennedy’s religious practice than football itself.
As it has done with increasing frequency during this term, the court threw out a long-standing precedent for a conservative outcome in Kennedy: Lemon v. Kurtzman, the 1971 case that established a three-part test for compliance with the establishment clause. The new right-wing court, it seems, is not at all interested in upholding the Establishment Clause. By ruling in favor of Kennedy, they have opened the door for any Christian public servant to claim discrimination if limits are placed on their religious expression while performing their duties, and jeopardize any public body that attempts to maintain a separation between the private religious actions of their employees and their own public official actions. And they have made America’s public schools vulnerable to the religious inclinations of their teachers and administrators, which can now be exercised in ways to coerce student participation.
The Supreme Court seems ready to allow this. Why? Because its conservative supermajority has taken a radically expansionist view of the First Amendment’s free exercise clause, interpreting the Constitution’s guarantee of freedom of religion in a way that effectively tramples on the freedoms of others. An emerging trend in conservative thought—supported by a growing body of jurisprudence emanating from the Republican-controlled federal bench—has begun to define what were once considered standard features of the separation of church and state as oppressive discrimination against Christians.
This is an absurd argument, which would not hold water in this court if made by a non-Christian. But Kennedy had a listening ear and a maximalist decision. “It’s protected speech,” Amy Coney Barrett said bluntly of Kennedy’s prayer circles during closing arguments. For Christians, at least, the Supreme Court redefined religious freedom – as a religious privilege.