Today marks one year since the Supreme Court handed down Kennedy v. Bremerton School District, last term’s seminal decision on prayer in school. At the time, some legal and lay commentators lamented the court’s holding, but a year of lower-court rulings suggests their fears were unwarranted.
After being suspended and later fired for repeatedly praying at the 50-yard line after games, high school football coach Joseph Kennedy filed a lawsuit alleging his school district had violated his First Amendment rights. In reviewing the facts, the court determined Kennedy engaged in prayer during a lull in his official duties, when he and other staff members were permitted personal time. The court sided with Kennedy and held that by punishing Kennedy for his prayer, the district not only violated his right to free exercise of religion, but also his right to engage in symbolic speech. “To hold differently,” Justice Neil Gorsuch wrote for the court, “would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The district provided only one meaningful rationale for disciplining Kennedy: Allowing him to pray in such a public manner would signify the school’s endorsement of the Christian faith, violating the Establishment Clause of the First Amendment and exposing the district to a lawsuit. But the Supreme Court rejected this argument, emphasizing that it relied on defunct case law that placed a great emphasis on preventing the appearance of state “endorsement” of religion. Justice Gorsuch explained courts must look to “historical practices and understandings” to determine if a state actor, such as a school administrator, has violated the Establishment Clause and its bar against a state religion. Importantly, the court found no evidence that students were compelled or coerced to participate in the coach’s private prayer, a point the school district conceded. The court thus found the district’s fear of violating the Establishment Clause insufficient grounds for disciplining Kennedy.
Nevertheless, the court’s opinion triggered strong reactions. MSNBC contributor Anthea Butler warned the decision was a “sledgehammer” to the wall separating church and state that would “bring us closer to Christianity as our de facto state religion.”