The United States Supreme Court has systematically prohibited school sponsored prayer in public schools. At the same time, lower courts have generally prohibited public school employees from openly praying in the workplace, even if no student is involved.

Yet on June 27, 2022, the Supreme Court effectively approved every employee’s prayer, which could usher in more religious activities in public schools.

In Kennedy v. Bremerton School District – the first Supreme Court case to deal directly with the issue – the court ruled that a Washington state school board violated a coach’s rights by not renewing his contract after ignoring officials’ directive of the district to stop kneeling in silent prayer at the 50-yard line after games. He claimed the council violated his First Amendment rights to free speech and freedom of religion, and the majority of the Supreme Court agreed 6-3.

From my point of view as education law specialist, the case is notable because the court has now ruled that public school employees can pray while supervising students. It also helps wrap up a Supreme Court term as current justices’ growing interest in religious discrimination claims was on full display, with another “church-state” case decided in favor of religious plaintiffs last week. And on June 24, 2022, the court overturned Roe v. Wade. The abortion debate is often framed in terms of religion, although the court’s decision focused on other constitutional grounds.

Facts of the case

In 2008, Kennedy, a self-described Christian, worked as the head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He began kneeling at the 50-yard line after games regardless of the outcome, offering a brief, silent prayer of thanks.

While Kennedy initially prayed alone, most of his team’s players, and later members of opposing teams, joined him. Later, added inspirational speecheswhich caused some parents and school employees to express concern that players would feel pressured to participate.

School officials ordered Kennedy to stop praying on the grounds because they feared his actions put the board in danger of violating the First Amendment. It is forbidden for the government to make laws”concerning the establishment of a cult or by prohibiting the free exercise– language known as the Establishment Clause, which is often understood to mean that public officials cannot promote particular religions over others.

In September 2015, school officials informed the coach that he could continue to give his inspirational speeches after games, but that they should remain secular. Although the students could pray, he could not. However, a month later, Kennedy resumed his prayers on the pitch. He had made his intention to do so public and was joined by players, coaches and parents, as reporters watched.

The Bremerton School Board offered Kennedy accommodation to allow him to pray more privately on the field after the stadium emptied, which he rejected. At the end of October, officials put him on paid leave for violating their directive and ultimately chose not to renew his one-year contract. kennedy complaint lodged in August 2016.

Two complicated clauses

Kennedy raised two major claims: that the school board violated his rights to free speech and also to practice his religion. However, the Ninth Circuit twice rejected these claims because he concluded that when he prayed he did so as a public employee whose actions might have been considered to have the approval of the council. Additionally, the Ninth Circuit agreed with the school board that the district had a compelling interest in avoiding violating the Establishment Clause.

During pleadings in the Supreme Court, however, it was clear that the majority of justices were sympathetic to Kennedy’s allegations of religious discrimination and more concerned about his religious freedom rights than the council’s concern about violating the Establishment Clause.

Writing for the courtJudge Neil Gorsuch noted that “a good understanding of the establishment clause of the amendment [does not] compel the government to isolate private religious speech for particular disgrace. The Constitution and the best of our traditions advise mutual respect and tolerance, not censorship and repression, for religious and non-religious views. »

One aspect of Kennedy with potentially far-reaching consequences is that he largely repudiates the three main criteria the court has long applied in cases involving religion.

The first one, Lemon vs. Kurtzman, was a 1971 dispute over aid to denominational schools in Pennsylvania. The Supreme Court ruling required that interactions between government and religion pass a three-pronged test to avoid violating the Establishment Clause. First, an action must have a secular legislative purpose. Further, its primary principle or effect must neither advance nor inhibit religion, and it cannot result in excessive entanglement between government and religion. Whether one supports or opposes the “lemon test,” it was often unwieldy.

A decade later, in Lynch v. Donnelly — a case involving a Christmas display on public property in Rhode Island — the court determined that government actions cannot appear to endorse a particular religion.

Finally, in 1992 Lee vs. Weismana Rhode Island dispute over graduation prayer, the court wrote that subjecting students to prayer was a form of coercion.

The Supreme Court has walked away from the Lemon test for years. In 1993, Judge Antonin Scalia caustically described it like “a ghoul in a late-night horror movie who repeatedly sits in his grave and drags himself abroad, having been repeatedly killed and buried, […stalking] our jurisprudence on the establishment clause.

Kennedy may have driven 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 also long recognized that ‘high school students are mature enough'” to understand that their schools allowing someone free speech, in order to avoid discrimination, do not do not mean that the authorities approve of this view, let alone force students to participate.

To advance

In a long dissent Almost as long as the court’s opinion, Judge Sonia Sotomayor, joined by Judges Stephen Breyer and Elena Kagan, expressed serious reservations about the outcome. Setting the tone from the outset, Sotomayor chastised the court for “paying almost exclusive attention to protecting the free exercise clause for individual religious exercise while disregarding the prohibition of the free exercise clause. establishment of the establishment of a religion by the State”.

The dissent echoed some points from June 21, 2022, dissent in Carson v. Makinanother high-profile case on religion and schools, where Sotomayor criticized the majority for dismantling “the wall of separation between church and state that the Framers fought to build.”

It is unlikely that Kennedy v. Bremerton ends disagreements over public employee prayer as freedom of speech, or the tension between free exercise and establishment clauses.

In fact, the case is reminiscent of the saying to be careful what you wish for, because your wishes can be granted. By leaving the door open to more individual prayer in schools, the court can also open a proverbial Pandora’s box. Will supporters who have rallied behind a Christian coach be as open-minded if, or when, other groups whose values ​​differ from their own wish to show their beliefs in public?

Meanwhile, Kennedy said he as his work in return – so stay tuned.