People For the American Way

Trump Justices Cast Deciding Votes to Devastate Church-State Separation

News and Analysis
Trump Justices Cast Deciding Votes to Devastate Church-State Separation

Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a 6-3 decision, written by Gorsuch, that aimed a wrecking ball at church-state separation. The ruling contradicted and abolished decades of Establishment Clause precedent. It also sanctioned religious activity by public school officials risking coercion of students. The June 2022 opinion was in Kennedy v Bremerton School District.


What happened at the school district that led to the lawsuit?

 The majority and the dissent disagreed strongly on this basic question. According to Gorsuch’s opinion, the Bremerton school district disciplined and then fired Joseph Kennedy as an assistant high school football coach because he knelt at the 50-yard line after games and offered a “quiet prayer” while “students were otherwise occupied.” According to Gorsuch, “Kennedy’s private religious exercise did not come close” to coercing students to participate.

Justice Sonia Sotomayor’s dissent saw things very differently, as evidenced by several pictures included in the dissent. As she explained, Kennedy had begun praying silently and alone after games. Over time, however, “a majority of the team” joined him, and he clearly promoted and led the prayers. The district reminded him that school policy provided that school staff “shall neither encourage nor discourage” students’ own silent or non-disruptive prayer. The policy also stated that religious services or activities “shall not be conducted” on school grounds during school hours or in connection with “any school sponsored or school related activity.”

A coach from another team reported that Kennedy had “asked him and his team to join” in the post-game prayer. The district specifically warned Kennedy to cease his activity as violating its policy and the Establishment Clause and offered to help him find a place to pray privately “away from student activities.” Instead, before an upcoming homecoming game, Kennedy “publicize[d] his plans to pray at the 50-yard line.” He claimed he was not encouraging anyone else to participate. When Kennedy began his prayer after the game, numerous members of the public, along with players and coaches from another team, joined him. Despite warning letters from the district, Kennedy continued his now public prayer right after the next few games, joined by students and others.

Kennedy refused to comply or to discuss other possible accommodations with the district. Some parents reported that their children had participated in Kennedy’s prayers “solely to avoid separating themselves from the rest of the team.” The district placed Kennedy on administrative leave and the head coach recommended that the district not rehire Kennedy when his contract expired.

Kennedy then filed suit against the district in federal court. He claimed that it had violated his First Amendment rights to free speech and free exercise of religion. He sought a preliminary injunction against the school district.


What happened in the lower courts?

The district court denied the preliminary injunction in a decision affirmed on appeal. After discovery, the district court then granted summary judgment in favor of the school district. The court explained that Kennedy’s prayer practice violated the Establishment Clause. It noted that a coach’s “speech from the center of the football field immediately after” games clearly “conveys official sanction.” The court found that some players felt “compelled to join Kennedy in prayer to stay connected with the team or ensure playing time.”

The Ninth Circuit affirmed. It pointed out that the facts in the record “utterly belie” Kennedy’s claim that he had engaged only in “personal and private” prayer. Several members of the Supreme Court had expressed concern about the case at the preliminary injunction stage. At Kennedy’s request, the Supreme Court agreed to review the case.


What did the Supreme Court majority do?

 The right-wing Court majority reversed. They ruled that the court below should grant summary judgment to Kennedy and that the district had violated his First Amendment rights. They held that the Establishment Clause “neither mandates nor permits” the Bremerton school district’s actions.

The majority’s view of the facts played a key role in its conclusion that the First Amendment “double protects” Kennedy’s “quiet, personal” prayers at the 50-yard line. Gorsuch wrote that both the Free Expression and Free Exercise clause protected Kennedy unless the district could show its actions were “narrowly tailored” to serve a “compelling interest.”  Based on a view of previous Establishment Clause precedent just as distorted as its view of the facts, the majority said no.

In particular, the majority maintained that the Court had “long ago abandoned” the Lemon v Kurtzman precedent and “its endorsement test offshoot.” According to Gorsuch, it does not violate church-state separation for the government to take action that has the purpose or effect of promoting religion or that would be perceived by a “reasonable observer” as endorsing or promoting religion. Instead, Gorsuch claimed, courts must apply the Establishment Clause only “by reference to historical practices and understandings.” A governmental practice violates the Establishment Clause, Gorsuch declared, only where “history” and the “understanding of the Founding Fathers” say so. This reliance on the majority’s view of “history” eerily resembles the majority’s invocation of “history” in the Court’s recent decisions on abortion and gun safety.

It thus did not matter to the majority that Kennedy’s prayer clearly appeared to have the school district’s “official sanction.” Nor did it matter that high school students felt coerced to pray with Kennedy. Since there was “no evidence” that Kennedy “directly coerced” students to pray with him, there was no violation of the Establishment Clause.


What did the dissent say and why is the decision important?

 Justice Sotomayor strongly dissented on behalf of herself and Justices Stephen Breyer and Elena Kagan. In addition to her analysis of the facts, Sotomayor carefully showed that the majority had badly misinterpreted prior case law. It is this ruling, she noted, that first “overrules” Lemon, and improperly questions “decades” of precedent on improper government endorsement of religion. The majority inappropriately relied on “pluralities, concurrences, and dissents” by current Court members to “effect fundamental changes” in First Amendment jurisprudence, she went on, “all the while proclaiming that nothing has changed at all.”  She explained that the decision clearly undermines our country’s “longstanding commitment to the separation of church and state.”

Sotomayor went on to show more specific errors in the majority’s opinion. Its free speech findings, she noted, ignore the settled principle that as a public employee, Kennedy “accepted certain limitations” on his own speech when on the job. Similarly, she explained, his status as a school official means that his “participation in religious exercise” can “create Establishment Clause” concerns. The facts demonstrate, she went on, that precisely this problem occurred in this case. They also show, she explained, that the district’s restrictions on Kennedy were “narrowly tailored” to prevent violating the Establishment Clause and were therefore valid.

Sotomayor particularly criticized the majority’s “toothless” version of the principle that government officials should not coerce others, particularly impressionable students, to participate in religious activities. The fact that Kennedy did not require or direct student participation, she explained, remains irrelevant under applicable precedent. As the Court previously held, the government “may no more use social pressure to enforce orthodoxy”, as Kennedy clearly did, “than it may use more direct means.”

As Sotomayor concluded, the majority ruling improperly “elevates one individual’s interest in personal religious exercise” over “society’s interest in protecting the separation between church and state.” It endangers the rights of “particularly vulnerable” public school students. And it “sets us down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance.”

The longer term consequences of the right-wing majority’s decision remain unclear. Because Gorsuch’s opinion so plainly distorts the facts to portray Kennedy’s coercive prayer as  “private” activity, it may leave the door open for rulings against more obviously coercive Establishment Clause violations. But it remains more likely that the ruling will further embolden far right efforts to promote particular religious views to public school students, perhaps even undermining established precedents that protect against teacher-led prayer in public school classrooms. The case presents yet another example of the harm to all of our rights that the Trump-manufactured Supreme Court majority causes to us all.



Amy Coney Barrett, Brett Kavanaugh, Church-State, Establishment Clause, Neil Gorsuch, Supreme Court