The Roberts Court has effectively dismantled the line between church and state in public education with Justice Gorsuch's decision in Kennedy v Bremerton School District, tossing out decades of precedent in a 6-3 decision and declaring that an Oregon high school football coach's post-game prayer sessions with students were constitutional, whether the students wanted it or not
Justice Gorsuch wrote that Mr. Kennedy had sought only to offer a brief, silent and solitary prayer. Justice Sotomayor responded that the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not.stice Gorsuch wrote that the coach, at least after the games at issue in the case, “offered his prayers quietly while his students were otherwise occupied.Justice Sotomayor gave a different account of the facts, taking account of a longer time period.
“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer,” she wrote. In an unusual move, the dissent included photographs showing Mr. Kennedy kneeling with players and others.
Justice Gorsuch wrote that Mr. Kennedy was not speaking for the school when he prayed.
“He was not instructing players, discussing strategy, encouraging better on-field performance or engaged in any other speech the district paid him to produce as a coach,” Justice Gorsuch wrote.
Instead, he wrote, Mr. Kennedy merely took a moment to pray while others checked their text messages or greeted friends.
Not everything school employees do during work hours is official conduct, Justice Gorsuch wrote. If it were, he said, “a school could fire a Muslim teacher for wearing a head scarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett joined all of Justice Gorsuch’s majority opinion. Justice Brett M. Kavanaugh joined most of it.
In dissent, Justice Sotomayor said Mr. Kennedy effectively coerced students into praying with him.
“Students look up to their teachers and coaches as role models and seek their approval,” she wrote. “Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”
Justice Gorsuch responded that he rejected “the view that the only acceptable government role models for students are those who eschew any visible religious expression.”
In the process of ruling for Mr. Kennedy, the majority disavowed a major precedent on the First Amendment’s establishment clause, Lemon v. Kurtzman. That ruling, in 1971, set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.
In Justice Gorsuch’s account, the Lemon test had already been discarded. But Justice Sotomayor wrote that the majority had just now overruled it.
She acknowledged that the test had been subject to frequent criticism by various members of the court. “The court now goes much further,” she wrote, “overruling Lemon entirely and in all contexts.”
Justices Stephen G. Breyer and Elena Kagan joined Justice Sotomayor’s dissent.
Over the last 60 years, the Supreme Court has rejected prayer in public schools, at least when it was officially required or part of a formal ceremony like a high school graduation. As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment’s prohibition of government establishment of religion.
“The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” Justice John Paul Stevens wrote for the majority in that case.
Justice Gorsuch wrote that those precedents did not apply to Mr. Kennedy’s conduct.
“The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience,” he wrote. “Students were not required or expected to participate.”