On June 27, 2022, the Supreme Court gutted decades of established law that protected students’ religious freedom, undermining our country’s foundational principle of church-state separation. The court ruled 6-3 against the Bremerton School District, which was trying to protect public high school students from a coach who pressured them to join his public prayers at the 50-yard line at public high school football games.
For more than seven years, Joseph Kennedy, a former assistant football coach at Bremerton High School in Bremerton, Washington, delivered prayers to students on the 50-yard line immediately after games. When the Bremerton School District learned what Kennedy was doing, it sought to accommodate his religious beliefs by offering him time and space to pray before and after games where students would not feel coerced to participate. But Kennedy refused, insisting instead that he must be allowed to continue having the midfield prayers with students at games. After he announced to the media his plan to continue having the prayers, community members stormed the field to join him after the game, knocking over some students in the process. The School District was thus left with no choice but to place him on paid administrative leave. And instead of reapplying to be a coach the next year, as all coaches were required to do every spring, Kennedy sued the School District in the U.S. District Court for the Western District of Washington.
After both the district court and the U.S. Court of Appeals for the Ninth Circuit denied Kennedy’s motion for a preliminary injunction, the Supreme Court denied review, but some of the Justices expressed possible future interest in the case. The case then went back to the district court, which denied Kennedy’s claims, granting summary judgment in favor of the School District. On appeal to the Ninth Circuit, Americans United filed an amicus brief on behalf of a wide array of religious and civil-rights organizations, and Americans United’s Vice President and Legal Director Richard Katskee argued before the Ninth Circuit in support of the School District. A panel of the Ninth Circuit again ruled for the School District. Americans United then began representing the school district, along with Michael B. Tierney of Tierney, Correa & Zeinemann, P.C., and successfully defeated the coach’s request for further review by the entire Ninth Circuit.
Kennedy then sought Supreme Court review a second time. In early December, 2021, we filed the School District’s opposition to Kennedy’s petition for review. In that brief, we explained that Kennedy’s insistence to the Court that he was fired for private prayer is false; rather, he was placed on leave after he refused to stop having public prayer that coerced students. We also explained that for the Supreme Court to reverse the judgment of the lower courts, it would have to rewrite decades of settled law on what constitutes government speech and what amounts to a church-state violation.
The Supreme Court announced on January 14, 2022, that it would take the case. Americans United filed its merits brief with the Court in late March. On April 25, 2022, AU Legal Director Richard Katskee argued before the Court.
Unfortunately, on June 27, 2022, the Court, in an opinion by Justice Neil Gorsuch, undid fifty years of foundational First Amendment law to rule in favor of the coach. For decades, the Court had held that the government violates the Establishment Clause when its actions would be viewed as endorsing religion. But writing for a six-justice majority, Justice Gorsuch overturned the endorsement test and its sister Lemon test. In their place, the Court adopted a new “history and tradition” analysis and explained that courts must consider what the Founding Fathers would have thought to be an Establishment Clause violation. And while the Court affirmed that government coercion to participate in prayer would be unconstitutional, it held that there was no coercion here—ignoring the facts and the evidence that students participated because they feared the consequences of opting out.
In dissent, Justice Sotomayor criticized the majority’s selective reading of the record, its attack on church-state separation, and its disregard for students’ rights. As she put it, “the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.”
The case has returned to the District Court. We continue to serve as cocounsel for the School District in proceedings concerning how the Supreme Court’s ruling should be implemented.