Though it has now been close to a month since the last Supreme Court decisions of the year were announced, the details and impacts of the cases covered this year are still making headlines. From overturning the right to an abortion to significant changes to gun rights legislation, this year’s Supreme Court session had multiple very high-profile cases with the potential to impact Oregonians, many of which we will discuss in future posts. Today, I want to break down the details and impacts of one of the cases that is particularly interesting and complex: Kennedy v. Bremerton School District, which will change the way local governments regulate the separation of church and state in schools going forward. In an era of increased fake news and misinformation, this case stands out not only because of the potential impact on public education, but also because the Supreme Court judges themselves couldn’t agree on what was fact in the case, and what was fake.
In order to discuss the details of Kennedy v. Bremerton, it makes sense to start with the details that were shared on the record by witnesses and involved parties. According to previous testimony and the lawyer’s arguments, Joseph Kennedy, a football coach working for the Bremerton School District, was hired in 2008 and, shortly after being hired, began praying on the 50-yard line of the field after every game. Over a long period, possibly years, more and more student athletes from his team began to join in during the prayer, until it was most of the team. As the crowd that prayed grew, Kennedy began leading the prayer for those that joined him, discussing religion as well as giving a post-game pep talk to players. By 2015, Kennedy’s prayers included some of the spectators that would come onto the field after the game, as well as players and coaches from the visiting team. When a coach of another school’s team contacted the Bremerton School District to inform them of Kennedy’s actions, the Bremerton School District told Kennedy that they could provide him with a private space to conduct personal prayer, but that he could not lead students or other members of the public while acting as the football coach because it could be seen as an endorsement of a specific religion by an individual representing a public school, an act that would violate the Establishment Clause of the First Amendment, which forbids the government from endorsing a specific religion. Kennedy initially agreed and did stop his publicly led prayers for a short period, but less than a month later he went on a media tour around the country to announce that he would be resuming his post-game prayers. The following game ended with an estimated 500 people from the audience and opposing team rushing onto the field to join Kennedy in prayer, knocking over band members, students, and damaging school equipment in the process. These final actions led to the Bremerton School District putting Kennedy on administrative leave and not renewing his contract for the following season. After being notified that he would not be returning as a coach, Kennedy sued the school district, which took almost seven years to be escalated to the Supreme Court. For a more in-depth coverage of the details of Kennedy v. Bremerton School District, check out this article from the Washington Post.
In the Supreme Court majority and dissenting opinions, judges couldn’t agree on what statements on the record were relevant to the case. The majority opinion, written by Neil Gorsuch, argued that Kennedy was fired for his prayer in the final games where the audience and opposing teams joined him, but his own team did not. Because he was only taking a quiet, private moment to pray, and others chose to join him of their own accord, the majority opinion argued that he was not pressuring or leading anyone and therefore not violating the Establishment Clause. The dissenting opinion, on the other hand, written by Sonia Sotomayor, argued that Kennedy was fired for a culmination of his prayer over multiple years, which included leading students, some of whom reported to the school district feeling pressured to join in on the prayer or lose out on playing time. His prayers may have started as a private moment, the dissenting opinion argued, but witnesses and photographs showed that he would regularly pray while standing with students or audience members kneeled around him, following along. After examining testimonies and other evidence, the Supreme Court ultimately voted that Kennedy was wrongfully fired for exercising his right to private prayer.
This case is unique and impactful for multiple reasons, the first being that this is one of very few cases where lawyers and judges publicly shared arguments regarding facts within the case. While not unheard of, disagreements over facts of a case are usually minor and discussed in more private settings, whereas Kennedy v. Bremerton cultivated a very public discussion about the exact motivations and behaviors of both Kennedy and the Bremerton School District (for more information about the unique process this case took, check out this breakdown from Law.com that was published earlier this year). In addition to the uncommon disagreement over relevant facts, Kennedy v. Bremerton School District also makes any future impacts hard to predict, both nationwide and within Oregon. Unlike the recent overturning of Roe v. Wade, which immediately returned jurisdiction over abortion laws to individual states, the impacts of this case will be figured out at a much slower pace, as more public school officials or other government employees attempt to pray in public settings, and lower courts are forced to interpret this new precedent. It may be that this opens the door to further prayer in school settings, whether by leading students or just doing so publicly themselves, or it may be that this only further protects prayer that is quiet and private, as the majority opinion argued was a right for public officials. For more information about how this case might set precedent for future cases, check out this article.
If you’d like to learn more about the history of prayer in schools and the separation of church and state, check out one of the books from this list.