High Court Victory for Praying Coach and Religious Liberty

As the U.S. Supreme Court closed out its term last week, it delivered another powerful victory for religious liberty. High school football coach Joe Kennedy had lost his job solely because of his personal prayers at midfield after games. But the high court said that ran afoul of the free speech and religious free exercise guarantees of the First Amendment. In coming to its conclusion, the justices also tossed a legal analysis tool — the Lemon test — that had been problematic in Establishment Clause jurisprudence for decades.

Coach Kennedy had worked for Bremerton High School since 2008 and during that time he felt compelled to kneel and offer quiet prayers of gratitude at the 50-yard-line after football games. However, after 7 years without a problem, the school district in 2015 forbade Kennedy from continuing these prayers. The coach attempted to work in good faith with the district but asked for allowance to pray while students were occupied elsewhere. The school district refused to budge and despite public admissions that they found no evidence of students being coerced to pray, school officials ultimately terminated the coach’s employment.

First Liberty took up Kennedy’s case and despite losing in lower courts, it pressed on all the way to the U.S. Supreme Court. In its filings, First Liberty said it was remarkable that the school district took action against the coach for refusing to hide his expressions of faith. The brief added, “Even more remarkably, the Ninth Circuit endorsed the districts actions on the twin grounds that Kennedys private religious expression was actually government speech but could be suppressed even if it were properly classified as private speech to avoid the specter of an Establishment Clause violation.”

The Supreme Court moved to correct this misunderstanding of the Establishment Clause. Justice Neil Gorsuch, writing for the 6-3 court majority, affirmed that the First Amendment’s guarantees of religious free exercise and free speech protected Coach Kennedy’s prayers. And he added that Establishment Clause doesn’t “require the government to single out private religious speech for special disfavor.”

“The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” wrote Gorsuch.

Lower courts had relied on an Establishment Clause approach stemming from Lemon v. Kurtzman (1971) that prohibits government actions that lack a secular purpose, have a primary effect of advancing or inhibiting religion, or lead to excessive entanglement between government and religion. That test’s corollary eventually would lead jurists to ask if a reasonable observer” would consider state action to be an endorsement” of religion.

But Gorsuch said those lower courts missed the faults of the “abstract” and “ahistorical” Lemon test. He said the Supreme Court “long ago abandoned Lemon and its endorsement test offshoot.” Instead, courts should use “historical practices and understandings” to interpret the Establishment Clause, which he notes earlier in his opinion is actually in the same sentence in the U.S. Constitution as the Free Exercise and Free Speech Clauses — a placement that suggests “complementary” rather than “warring” purposes.

Justice Sonia Sotomayor wrote for the three dissenting justices and said the majority’s opinion “weakens the backstop” of the Establishment Clause to defend religious liberty and is pushing our country “down a perilous path” that will force state entanglements with religion.

However, Gorsuch asserts there is no true conflict between the First Amendment clauses in this case — just a misunderstanding of the Establishment Clause.

“And in no world may a government entitys concerns about phantom constitutional violations justify actual violations of an individuals First Amendment rights,” he wrote.

First Liberty President, Kelly Shackelford welcomed this victory for Coach Kennedy and said,We are grateful that the Supreme Court recognized what the Constitution and law have always said – Americans are free to live out their faith in public.”


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