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The Supreme Court Weakens The Separation of Church And State With High School Football Coach Decision

Civil Rights Policy Brief #190 | By: | June 28, 2022

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Photo taken from: Americans United for Separation of Church and State

Policy Summary

Joseph Kennedy was a football high school coach at a public high school in Bremerton, Washington. During his time as a coach in the Bremerton School District Mr. Kennedy had started a routine where he would pray at the fifty – yard line of the football field at the conclusion of the game. It started as small quiet moments but through the years had grown to include many of his players, parents and even players from the opposing team. Mr. Kennedy also conducted pre and post game prayers in the locker rooms with players from the team.

In September 2015, the school district instituted an inquiry into Mr. Kennedy’s activities. The District soon informed him that some of his activities such as prayers in the locker rooms and talks with students that included religious expression and prayer were constitutionally problematic. The school was worried that Mr. Kennedy’s activities were an endorsement of religion while he was engaged in his duties as a public school football coach. The District sought to work with Mr. Kennedy to set clear parameters as to what he could and could not do. Mr. Kennedy ceased some of his religious activities but his attorney later sent a letter that stated that Mr. Kennedy felt compelled to offer a personal post game prayer. After a game on October 26, 2015 where Mr. Kennedy led players in prayer, the District placed Mr. Kennedy on paid administrative leave and prohibited him from team related football activities.

Soon thereafter, Mr. Kennedy filed a lawsuit in the Federal District Court for the Western District of Washington. He alleged violations of the Free Speech and Free Exercise Clause of the First Amendment to the U.S. Constitution. The trial court ruled against Mr. Kennedy and in favor of the Bremerton School District. An appeal to the Court of Appeals for the Ninth Circuit affirmed the trial court. An appeal was taken to the U.S. Supreme Court, which was denied in 2019. The case went back to the trial court which led to another trial and another appeal at the Ninth Circuit which ruled against Mr. Kennedy again. A second appeal was made to the U.S. Supreme Court. On June 27, 2022 the Court ruled 6 – 3 that Mr. Kennedy’s rights under the Free Speech and Free Exercise Clauses were violated. LEARN MORE

Policy Analysis

In a Supreme Court term that has been defined by religion, the Court issued another disappointing decision in a religion case. On the heels of Carson v. Makin, which permitted state taxpayer funds to be used for tuition assistance at religious schools, the court issued the opinion in Kennedy v. Bremerton School District that an employee at a public school has the right to pray at the fifty – yard line of a football field after a game. While being contrary to previous Supreme Court precedents these two decisions are also disappointing because of how it weakens the American ideal that there should be a separation of church and state.

In the First Amendment there is the Free Speech Clause and the two religion clauses – the Free Exercise Clause and the Establishment Clause. The text of the Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” And it continues “or abridging the freedom of speech.”

The problem with the majority opinion’s analysis is its sweeping dismissal of the Establishment Clause in this case and Justice Gorsuch’s use of misleading facts to reach a conclusion. Under the Establishment Clause and the 2000 case Santa Fe Independent School District v. Doe, the court held that pre – game prayers on school property were not permitted because it would be seen as state endorsement of prayer at public schools. The key here is endorsement of prayer during school hours. Mr. Kennedy’s status as a state employee should have prohibited him from leading prayers after games because it would appear that the public school district would be endorsing religion. Justice Sotomayor in her dissent points out that the endorsement inquiry is not for any one or hypothetical person but the effect that the perceived endorsement would have on the community as a whole and how the community would perceive that.


“Separation of church and state.” It is a mantra every American has heard and is a maxim that many liberal lawmakers live by, serving as just another point of contention between them and many Republicans who argue instead that religion should play a role in daily life, even in public schools.

Photo taken from: Berkeley Political Review

(click or tap to enlargen)

Yet the majority opinion quickly dismisses this precedent. It does so by discarding the Lemon test (from the Lemon v. Kurtzman case) and implementing a new and uncertain test. The Lemon test asked three questions to determine if a law or policy violated the Establishment Clause – whether a statute or policy had a secular purpose or not, whether the statute had the effect of advancing or inhibiting religion and if the statute excessively entangled the government with religious matters. This case could have easily been decided by using this established Supreme Court legal test but Justice Gorsuch instead dismisses the test and states that future violations should be decided based on “original meaning and history.” This new standard is entirely unclear.

 

The Lemon test was much more precise and better suited for analysis because it is direct in its inquiry – whether a law is secular, whether religion is being promoted or suppressed and whether a state is getting too mixed up in religious affairs. What Justice Gorsuch and the five conservative members of the majority may have done is make government policies that favor or promote religion much harder to strike down. Under Justice Gorsuch’s new “original meaning and history” analysis, laws that may have been struck down under the Lemon test because they imply an endorsement of religion will now have a better chance of being held valid. That paves the way for more government laws and policies that favor or promote religion and weakens the wall of separation between church and state.

Finally, with the issuance of the opinion, Justice Gorsuch is coming under fire from an unexpected direction. As the author of the majority opinion, Justice Gorsuch is being accused of relying on a false narrative and a misleading use of the facts to resolve the case. He states that Mr. Kennedy was simply taking a quiet moment away from his players and staff to pray by himself. Justice Gorsuch may have stated this in order to generate more sympathy for Mr. Kennedy but the evidence shows that Mr. Kennedy was not engaged in quiet moments off by himself. Justice Sotomayor’s dissent actually went so far as to include pictures to show what was really going on on the football field. 


A picture showing what actually happened after the October 16, 2015, football game.

Photo taken from: Vox

Mr. Kennedy was often shown surrounded by a number of players and parents. The evidence also shows that Mr. Kennedy often invited the other team to come and join him in the post – game prayer at the fifty – yard line. Mr. Kennedy was not, as Justice Gorsuch stated, taking a quiet moment to pray by himself. The fact that Justice Gorsuch would use false facts in his opinion in the face of contrary photo evidence makes his reasoning in the majority opinion less credible.

This opinion was clearly a disappointing decision and has generated a massive debate about the scope and limits of state sponsored religious activity in everyday American life. Simply put, this Court got it wrong and it remains to be seen if a future Court will recognize that and overturn this misguided decision. LEARN MORE

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Engagement Resources​

Click or tap on resource URL to visit links where available 

Freedom From Religion Foundation – press release from non – profit group about the Kennedy v. Bremerton decision.

Americans United For Separation of Church and State – statement from non – profit group about the Kennedy v. Bremerton decision.

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