By a 6-to-3 vote, the Supreme Court ruled today in Kennedy v. Bremerton School District that a school district violated the Free Exercise and Free Speech rights of a high-school football coach when it disciplined him for praying quietly after three games. Justice Gorsuch wrote the outstanding majority opinion, and the three liberal justices dissented.
Gorsuch’s majority opinion forcefully explains that the Free Exercise and Free Speech Clauses do not conflict with the Establishment Clause. In the process, it observes that the Court has already abandoned the notorious Lemon test under the Establishment Clause. And it emphasizes the increasingly unpopular point that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.”
Here is a quick outline of the key points in Gorsuch’s majority opinion (with many verbatim passages not cluttered with quotation marks):
1. Free Exercise Clause/threshold inquiry (pp. 11-14). Kennedy has shown that the school district burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable” (under Employment Division v. Smith test). The school district disciplined him only for his decision to persist in praying quietly without his players after three games in 2015. It sought to restrict his actions at least in part because of their religious character. Its policies were not neutral toward religion. Nor were they generally applicable: In response to Kennedy’s religious exercise, the district imposed on him a post-game obligation to supervise students that it did not impose on other members of the coaching staff.
2. Free Speech Clause/threshold inquiry (pp. 15-19). Kennedy’s speech was private speech, not governmental speech. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters. (Justice Kavanaugh did not join this part and was evidently content to rely on the Free Exercise ground.)
3. The district did not meet its burden (pp. 19-31). Whether the standard under the Free Exercise Clause and the Free Speech Clause is strict scrutiny or intermediate scrutiny, the district loses.
a. The district is wrong to contend that its suspension of Kennedy was necessary to avoid violating the Establishment Clause. This Court has long ago abandoned the Lemon test and has instead instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.
b. The district is wrong to contend that Kennedy’s praying would have coerced students to pray. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. Kennedy did not seek to direct any prayers to students or require anyone else to participate. Learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.
There is no indication in the record that anyone expressed any coercion concerns to the district about the quiet, postgame prayers that Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.
The district suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law— impermissibly coercive on students. Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the district would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.
Addendum: I’ve only skimmed Justice Sotomayor’s 35-page dissent (slightly longer than Gorsuch’s majority). It sure doesn’t get off to a good start with this ridiculous first sentence:
This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. [Emphasis added.]
The “school event” here was a football game, and what happens at the “center” of a football game is very different from a coach’s kneeling at midfield (the “center” of the field) after the game has ended. It’s stupid wordplay for her to try to suggest otherwise.