By Ilan Fuchs, Ph.D. | 12/26/2024
The Supreme Court case of Kennedy v. Bremerton School District sparked nationwide debate about the boundaries between personal faith and public/federal employment. In 2015, Joseph Kennedy, a high school football coach in Bremerton, Washington, found himself at the center of a legal storm.
His post-game ritual of kneeling in silent prayer at midfield drew the attention of players, school officials, and eventually, the courts. What began as a solitary act of faith evolved into a constitutional clash, with questions about free speech, religious freedom, and the Establishment Clause (one of two free speech clauses) taking center stage.
The Bremerton School District warned Joseph Kennedy several times that his acts of prayer violated the Constitution, since school officials leading prayer during a school event violates the Establishment Clause. However, Kennedy continued praying and ignored school officials on three separate occasions. As a result, the Bremerton School District disciplined Kennedy and the school district told Kennedy that he would be placed on paid administrative leave.
Kennedy sued the district, but he lost in both the district court and the Ninth Circuit Court of Appeals. Both courts found that Kennedy's religious activity is exactly what the establishment clause prohibits: government sponsorship of a religious tradition.
The Supreme Court ultimately agreed to hear the Kennedy v. Bremerton case, focusing on Kennedy's rights to freedom of religion and freedom of speech.
The Bremerton School District argued that, as a government employee and school official, Kennedy should refrain from religious or political expressions that could be perceived as an endorsement of religious expression by the Bremerton School District and a conflict with the Establishment Clause. The district also contended that a high school football coach praying at the 50-yard line after a game could coerce students into participating in such religious expression, potentially infringing on their rights.
Kennedy stated that the Bremerton School District infringed on both his freedom of religious exercise and free speech. He made it clear that he chose to pray and did not ask students to join him in his post-game ritual.
Also, Kennedy argued the prayer qualified as private speech because it occurred after the game had ended and reflected his own personal religious expression. He claimed that personal religious expression was protected under the First Amendment's guarantees of both free speech and religious freedom.
The Majority Opinion of the Supreme Court
The Supreme Court addressed two key questions when considering this case involving public schools and religious expression:
- Would a reasonable observer view Kennedy’s prayers as a school endorsement of religion?
- Can a school prohibit an employee from exercising free speech?
Supreme Court Justice Neil Gorsuch, writing the majority opinion, acknowledged that Kennedy’s actions involved religion in his role as a school employee. For example, Kennedy had previously led locker room prayers and gave motivational talks with religious undertones in addition to his post-game prayers. The district court said that the locker room activity that clearly invited the players to join is no different than the post-game prayers that the coach initially held by himself.
The majority opinion explained that the district court erred in not distinguishing between the game and post-game prayers. Kennedy ceased the locker room prayers and motivational talks by request of Bremerton School District officials. However, he maintained that his midfield prayers were distinctly different because the expression of religious speech occurred while players were already leaving for the locker room.
Justice Gorsuch concluded that the Bremerton School District had indeed restricted Kennedy’s free speech rights, stating: “The District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.”
The court ruled that Kennedy should be reinstated to his coaching job. Kennedy did go back to coaching, but only remained for one season before leaving.
The majority opinion also explored a broader question: how could a teacher's public prayer avoid violating the Establishment Clause? Traditionally, the Lemon test has been used to evaluate such cases.
The Lemon Test
The Lemon test originates from the 1971 Supreme Court case Lemon v. Kurtzman. It examines whether a law or action violates the Establishment Clause by considering three factors:
- Purpose: Does the action favor religion? If favoritism is incidental, it may not violate the clause.
- Effect: Does the action primarily advance or inhibit religion? Neutral effects generally pass scrutiny.
- Entanglement: Does the action result in excessive government involvement in religion?
The Lemon test has faced criticism over the years for being overly restrictive. The Supreme Court’s majority opinion in Kennedy v. Bremerton effectively set aside the Lemon test, favoring a historical analysis of the Establishment Clause instead.
Why Kennedy’s Prayer Was Considered Private Speech
Justice Gorsuch remarked on the overreach of the district’s policy: “The only added twist here is the District’s suggestion not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution. Such a rule would be a sure sign that our Establishment Clause jurisprudence (theory of law) had gone off the rails...Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.”
In other words, the majority opinion of the court held that a public school cannot bar employees or students from engaging in religious practice simply because someone might misinterpret their private speech or personal religious expression as a form of school-endorsed religion. Such a misinterpretation does not constitute a violation of the Establishment Clause.
The Free Exercise clause should protect an employee's sincere religious observances in a public school unless it clearly violates the Establishment Clause. Religious speech deserves the same level of protection as comparable secular speech, ensuring both are treated equally. Kennedy's conduct cannot be confused as government speech, rendering the district's Establishment Clause concerns as unjustified.
The Minority Opinion: Concerns Over Coercion
Supreme Court Justice Sonia Sotomayor, writing the dissenting opinion, expressed deep concerns over the decision’s implications. She argued that the Court had abandoned longstanding principles regarding government endorsement of religion, replacing them with a vague “history and tradition” test. She also emphasized the unique pressures students face during school-sponsored activities, suggesting that Kennedy’s prayers could be perceived as coercive, thus violating the Establishment Clause.
“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.”
Justice Sotomayor even included photographs in her opinion to illustrate that Kennedy’s prayers were not private actions but public events involving numerous students.
The minority opinion focused on the factual details of Kennedy's religious exercise. The pictures show that his prayers were a personal religious observance and there was no coercion. In this case, it was easy to come to the conclusion that the prayer was part of school events and that the conduct was endorsed by the school district and therefore violated the Establishment Clause.
School officials were correct to demand that Kennedy stop praying. The minority opinion was also worried that Kennedy’s post-game prayer might open the door for coercion since future student athletes might feel pressured to join the prayers since they might be seen as endorsed by the school district and public schools.
How the Supreme Court's Decision Reflects Broader Cultural Shifts
The central debate of the Kennedy case revolves around how a reasonable observer would interpret the situation regarding a government employee's personal religious beliefs. The district court argued that the observer’s perspective should be broad, meaning any perceived endorsement of religion by a government entity should be treated seriously. By contrast, the majority contended that the observer's interpretation should be more limited, more narrow, focusing on the specific context and intent behind the action rather than a generalized perception of religious endorsement.
The minority opinion stated that religious exercise should be protected but it should not be confused with government speech. Since the U.S. is a free and diverse republic, no one should feel that the establishment, or in this case, the school district, advances one religious tradition over another.
Over the years, the Supreme Court has become increasingly politicized, losing its perceived neutrality in the public eye. The conservative majority’s decision in Kennedy reflects broader cultural and political dynamics, including reactions to the secularization (separation from religious concerns) of American society since the 1960s.
First amendment issues and attempts to suppress religious observances will certainly be revisited in the future. The Kennedy decision changes the court's Establishment Clause jurisprudence and wants to protect the place of religion within the public sphere in the face of what the majority of the court sees as secular coercion.
While rapid societal changes often provoke a backlash, incremental and less divisive reforms may achieve more enduring results. The Kennedy case serves as a reminder of the pendulum-like nature of political and cultural shifts in the U.S., and it also invites more comparative observations on this issue so we can identify possible direction that can be taken by the courts.
Other Cases Involving the Public Expression of Religion
Around the world, there have been other cases that challenged the expression of religion in schools. One such case is Lautsi v. Italy.
This case came before the Grand Chamber of the European Court of Human Rights (ECHR). It remains a staple in the debate on secularism and cultural identity in Europe.
The case arose when Soile Lautsi, an Italian citizen of Finish heritage, argued that the placement of crucifixes in her children's public school classrooms violated the European Convention on Human Rights, such as:
- Article 9 (freedom of thought, conscience, and religion)
- Article 2 of Protocol 1 (the right to education with respect for parents’ religious and philosophical convictions)
Initially, in 2009, the lower courts ruled that the mandatory crucifixes violated the principle of state neutrality in public education. However, this decision was reversed in 2011.
In the appeal, the ruling explained that the presence of crucifixes did not breach the Convention. The court explained that although a crucifix is a religious symbol, it also held cultural and historical significance in Italy. The Court concluded that its mere presence did not amount to religious coercion and did not infringe on students’ rights or parents’ freedom to educate their children in line with their beliefs.
S.A.S. v. France
Another case involving the expression of religion in public spaces was the 2014 French case of S.A.S. v. France. This case involved a French law that banned the public use of hijabs and other clothing that concealed the wearer’s face for security reasons. In religious spaces, this type of clothing was permitted.
The Grand Chamber of the ECHR emphasized the doctrine of the margin of appreciation, which grants nations a degree of flexibility in managing sensitive cultural and religious issues. This doctrine played a key role in the S.A.S. v. France case. This approach acknowledges that different countries may have unique social and cultural contexts that influence how they balance religious freedom with secular principles. cultural contexts that influence how they balance religious freedom with secular principles.
Ultimately, the Grand Chamber upheld France's ban on full-face veils in public spaces, citing the need for "living together" (le vivre ensemble) as a legitimate basis for restricting religious expression. These cases illustrate the Court's willingness to defer to nations when cultural or social cohesion is at stake, as long as the measures taken are proportionate and justified.
While states like France enforce strict separation between religion and public life, other countries such as Italy, integrate religious symbols as part of their cultural identity and historical practices. Considering the complexities of the European Union, the Grand Chamber court is using a nuanced approach to reconciling religious freedoms with national traditions. It seems that such an approach is also needed in the United States.
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