(RNS) — The majority opinion in Kennedy v. Bremerton, the decision the U.S. Supreme Court handed down on Monday (June 27), begins with a lie: “Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District,” it reads, “after he knelt at midfield after games to offer a quiet personal prayer.”
In fact, the coach lost his job after he told his superiors at the school that he would continue his practice of praying at the 50-yard line immediately after games and insisted students not be prevented from praying with him, despite his employers’ cautions that the prayer sessions were getting out of hand: His postgame devotionals had turned into a media event, at which citizens and politicians had knocked over band members in a rush to join in.
Quiet personal prayer?
But so be it. Kennedy v. Bremerton is all about how a resolvable situation was turned into a test case that succeeded in eliciting a consequential judicial decision.
Kennedy had made his religion part of a public high school’s football program, conducting prayerful motivational meetings in the locker room and incorporating a prayer session into postgame ceremonies. Players were not required to attend, but some said they felt under pressure to do so.
How this kind of teacher-led religious practice went on for years without raising school administrators’ concerns is worth wondering about in itself. But when their attention was called to it by an opposing coach, school officials realized they had a problem. Since the Supreme Court’s prayer and Bible-reading decisions of the early 1960s, it’s been clear that teacher-led religious exercises in public schools violate the First Amendment’s ban on religious establishments.
Taking the situation in hand, the school district told Kennedy that while he was free to pray privately after games, he would have to cease and desist from leading students in prayer while he was on the job. And he briefly complied, refraining from prayer in the locker room and waiting until the stadium was empty before going to the 50-yard line and taking a knee.
But after school authorities raised no objection, he decided (having acquired counsel) that he needed to resume his prior postgame orisons. After being suspended with pay, he filed suit, contending that the school district had violated his rights of religious free exercise and free speech.
On Monday, the Supreme Court agreed with him.
The court’s 6-3 decision, written by Justice Neil Gorsuch, would be bad enough if it had relied on the recent standard for assessing establishment clause cases. Sandra Day O’Connor’s endorsement test, worked out in1984, guided courts in judging whether “a reasonable, informed observer” would consider a particular object or activity to constitute governmental endorsement of religion.
I, for one, believe that such an observer would conclude that the scene of a coach surrounded by praying players at the end of a football game could only take place with official sanction, but I’m prepared to concede that reasonable people might disagree.
But that is not what Gorsuch’s opinion does. Instead, it rejects O’Connor’s endorsement test out of hand (along with the Lemon test it was intended to clarify) and seeks to lock in a new standard of interpretation. As of today, the establishment clause “must be interpreted by ‘reference to historical practices and understandings.’”
The embedded quote comes from former Justice Anthony Kennedy’s decision in Town of Greece v. Galloway, a 2013 decision that permitted a town in upstate New York to continue its practice of opening its monthly board meetings with (largely) Christian prayer. That decision harked back to the court’s 1983 Marsh v. Chambers decision upholding the Nebraska Legislature’s practice of beginning its sessions with prayer by a paid chaplain.
Although it is reasonably clear what “historical practices and understandings” means when it comes to invocations in legislative bodies, how far the court might go in applying that standard to public schools is anyone’s guess. Gorsuch writes that it “would be a sure sign that our Establishment Clause jurisprudence had gone off the rails” if the court found that a school district must “prohibit teachers from engaging in any demonstrative religious activity.”
Historically, teacher-led prayer and Bible reading were normal and customary and, I can personally attest, within living memory. In this regard, it’s worth noting that Gorsuch makes a point of citing Kennedy’s source for his “historical practices and understandings” line. It comes from a sentence from Justice William Brennan’s concurrence in Abington v. Schempp:
“Specifically, I believe that the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.”
Abington v. Schempp is the 1963 case that banned Bible-reading in the public schools. Brennan agreed with the ban the Supreme Court imposed in that case. Gorsuch may not.