APU Legal Studies Original

The Supreme Court and Religious Expression in Public Schools

By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies

The Supreme Court recently finished one of its most impactful and contentious terms with a series of landmark decisions. One of its cases has again brought to the forefront of our society the issue of separation of church and state.

Kennedy v. Bremerton School District, concerning the public offering of prayer by a football coach, was decided by the usual Supreme Court majority of 6-3, split down ideological lines. This case promises to be a staple in constitutional law classes for a long time.

Related link: The Shifting Lines of Church and State Separation in the US

How Kennedy v. Bremerton School District Developed into a Supreme Court Case

In 2015, high school football coach Joseph Kennedy lost his job at Bremerton High School in Bremerton, Washington, because he had the habit of kneeling to offer a prayer of thanks at the midfield after football games. Initially, Mr. Kennedy prayed on his own. Later, some football players asked whether they could pray with him, and most of the team joined in on some occasions.

The Bremerton School District warned him that the Constitution forbids such an act, and Kennedy was fired after praying on three separate occasions. He took legal action, but he lost in both in the district court and the Ninth Circuit Court of Appeals. The Supreme Court took the case and distilled it down to Kennedy’s right to exercise his freedom of religion and his freedom of speech.

The Bremerton School District contended that since Kennedy was a government employee, he should not express his religious or political views in a way that would be attributed to the district and that would go contrary to the Establishment Clause. The same logic applies to the idea that a coach praying in the 50-yard line after a game might coerce other students into praying.

The Majority Opinion Asserts that Kennedy’s Right to Free Speech Was Violated

Associate Justice Neil Gorsuch, who wrote the majority opinion, explained that Mr. Kennedy agreed that his actions involved the use of religion at Bremerton High School. For instance, Kennedy used locker room prayers and motivational talks that included religiously influenced messages, in addition to his post-game prayers.

Kennedy stopped both the prayers and the motivational talks as soon as Bremerton School District asked him to stop. However, he maintained that the post-game prayer in mid-field was different since it was performed when team members were already walking towards the school’s locker room.

But the questions faced by the Supreme Court were:

  • Would a reasonable observer think that Bremerton High School was endorsing religion by allowing Kennedy to offer personal prayers?
  • Can a school stop a teacher from exercising free speech?

Justice Gorsuch answered that there was no doubt that the district stopped Kennedy’s exercise of free speech. He noted, “In this case, 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.”

However, the more complex question is: How will prayer by a schoolteacher no longer violate the Establishment Clause? Traditionally, the Lemon test is applied to determine whether a law violates the Establishment Clause of the First Amendment.

The Lemon Test Is Traditionally Used to Determine If the Establishment Clause Was Violated

One of the cases everybody remembers from law school is the Lemon test. Lemon v. Kurtzman was a 1971 case where the Supreme Court’s final ruling was that two states – Pennsylvania and Rhode Island – violated the Establishment Clause of the First Amendment by making state financial aid available to “church-related educational institutions.”

This case also led to the creation of the Lemon test to see if a law violates the Establishment Clause. This test looks at three factors: purpose, effect and entanglement.

  1. Purpose: The Supreme Court asked whether the statute or action under discussion favors religion. If the favoring of religion is tangential, then perhaps there is no establishment clause issue.
  2. Effect: The Court looked at the principal effect of the statute or the action. If that statue or action does not advance nor inhibit religion, it is neutral.
  3. Entanglement: Did the statute or action bring about an “excessive government entanglement” with religion? For example, the government cannot decide who is right in a theological debate.

The Lemon test has been critiqued through the years as being overly limiting. Now, the Supreme Court’s majority opinion has set aside the Lemon test once and for all.

The Supreme Court called the judges to look at the historical context of the Establishment Clause. The majority opinion was very clear that things have gone to an extreme, noting: “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 had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it.

“Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. 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.”

Related link: New Legal Studies Courses for the Modern Legal Industry

The Minority Opinion Says the Lemon Test Has Been Replaced by a Different Standard

Justice Sonia Sotomayor, writing the minority opinion, did not mince her words. She has been clear in the recent year that the Supreme Court is eroding existing jurisprudence on many fundamental issues.

In this case, Justice Sotomayor wrote a dissenting opinion that does not hide what she really thinks about this case. She said, “In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test.

“In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. 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 added pictures to the final version of her decision. I am not sure if images have ever been used in a Supreme Court opinion document before, but it was important for her to show that the prayers of Mr. Kennedy were not merely an individual action but that many students joined him in public prayer.

In her opinion, the use of public prayer on school grounds makes boundaries unclear and their use could seem coercive and violate the Establishment Clause. Clearly, the minority in the Supreme Court has no qualms about using very harsh language.

The Supreme Court Has Grown Increasingly Political Over the Years

Over time, the Supreme Court has been thoroughly politicized and lost its neutral position in the public life of the U.S. It is difficult to see how and when that behavior will change.

If there is one thing to learn from this term of the Supreme Court, we can learn that the political pendulum moves in both directions and that the conservative majority does not act in a void. The continued secularization of the U.S. since the 1960s has brought about reactions of this kind. Rapid cultural and political changes will have a conservative backlash and for long-term change, slower and more incremental changes that do not garner controversy will have better results for our laws and society.

Ilan Fuchs

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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