Supreme Court abandons 50-year-old test on what unconstitutionally advances religion

Sotomayor's dissent: Ruling 'offers no guidance for school administrators'

On Board Online • July 18, 2022

By Jay Worona
Deputy Executive Director and General Counsel

A U.S. Supreme Court decision handed down on June 27 is likely to leave school leaders with more confusion than clarity regarding the constitutional rights of school employees to express their religious beliefs in a school setting.

In Kennedy v. Bremerton School District, the high court ruled 6-3 that a school district in the state of Washington violated the rights of high school football coach Joe Kennedy by disciplining him for kneeling at midfield after games to pray. It also explicitly abandoned the Lemon test, a 50-year-old method the Supreme Court used to analyze whether certain governmental actions unconstitutionally advance religion. Under the Lemon standard, an unconstitutional coercive effect would have been presupposed simply because the coach was engaging in his actions while still on duty.

The majority opinion by Justice Neil Gorsuch called the Lemon test "abstract" and noted that the Supreme Court has avoided basing decisions on it for decades. Conservative members of the court have viewed this standard as generally favoring those wishing to erect a high wall separating church and state rather than enabling courts to protect religious liberty.

In a 1993 decision involving the Center Moriches school district on Long Island, the late Justice Antonin Scalia called the Lemon test "a ghoul" that "stalks our Establishment Clause jurisprudence" despite the efforts of justices who have "driven pencils through the creature's heart."

It was not until this case that the court's conservative justices were in the clear majority, leading to the demise of the Lemon test.

Unlike the lower courts, Gorsuch and five other justices did not view the actions of the coach as potentially leading to the result that students would be unconstitutionally coerced or influenced to join the coach in prayer. Instead, the court ruled that in the absence of evidence that students were directly coerced to pray with the coach, the district had not shown that the coach's actions were in violation of the Establishment Clause of the First Amendment. Instead, Gorsuch's opinion focused on the coach's First Amendment rights to engage in private speech of a religious nature. The majority viewed the coach's actions as private, nongovernmental speech.

The high court rejected the reasoning of two lower courts, which held that the coach served as a role model. "He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the district paid him to produce as a coach," Gorsuch wrote.

A dissent written by Justice Sonia Sotomayor complained that the ruling "essentially offers no guidance for school administrators" regarding what behavior by school employees violates the Establishment Clause.

The majority's opinion

Joining Justice Gorsuch in the majority were Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett and Brett Kavanaugh.

In ruling against the school district, the majority found that the coach's First Amendment right to the free exercise of religion had been violated. According to the majority, "no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving 'thanks through prayer' briefly . at the conclusion of each game he coaches. The contested exercise here does not involve leading prayers with the team."

The majority acknowledged the school district's argument that its suspension of the coach was essential to avoid a violation of the Establishment Clause of the First Amendment, which usually has been interpreted by courts to prohibit public schools from imposing prayer or other religious practices on students, even if students are not required to participate.

The school district "did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy's religious beliefs," Gorsuch wrote. "That reasoning was misguided."

In a stark departure from decades of previous decisions by the high court, the court's majority found that the school district had no right or obligation to preclude the coach from expressing himself through prayer. The majority ruled that the district's actions were discriminatory because "it permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls."

The majority noted that the lower courts, in upholding the actions of the school district, considered whether a "reasonable observer" would view the district as endorsing religion based on the coach's actions. This is the Lemon test and is based on a 1971 decision by the U.S. Supreme Court entitled Lemon v. Kurtzman. The court explicitly stated that this standard of review is flawed and should be abandoned. In place of the Lemon test and other standards such as the "endorsement" test or "coercions" test, "this court has instructed that the Establishment Clause must be interpreted by 'reference to historical practices and understandings,'" Gorsuch wrote, citing a case from New York State (Town of Greece v. Galloway, 2014).

The majority advised schools not to treat everything teachers and coaches say in the workplace as governmental speech subject to government control. Otherwise, "a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria ... The Constitution neither mandates nor tolerates that kind of discrimination."

The dissent

Dissenting from the majority opinion were justices Sonia Sotomayor, Stephen Breyer and Elena Kagan. A dissent written by Justice Sotomayor said that the majority "misconstrues the facts" by portraying the coach's prayer as "private and quiet."

In fact, Kennedy "had a longstanding practice of conducting demonstrative prayers on the 50 yard line of the football field . . [and] consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location," Sotomayor wrote.

The dissent noted:

  • The district sent numerous letters to the coach explaining that his conduct was inconsistent with the district policy and offered to accommodate his desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement of religion on the part of the school district.
  • Several parents had reached out to the district saying that their children had participated in the coach's prayers solely to avoid separating themselves from the rest of the team.
  • After a TV news crew recorded Kennedy being joined in prayer by coaches and players from an opposing team, as well as members of the public who jumped fences (some knocking over student band members), the district received calls from Satanists who "intended to conduct ceremonies on the field if others were allowed to."

"Properly understood, this case is not about the limits on an individual's ability to engage in private prayer at work," according to the dissent. "This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee's personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so."

Sotomayor said that the court's new standard of relying on "historical practices and understandings" is not useful to local school leaders: "How will school administrators exercise their responsibilities to manage school curriculum and events when the court appears to elevate individuals' rights to religious exercise above all else? Today's opinion provides little in the way of answers; the court simply sets the stage for future legal changes that will inevitably follow the court's choice today to upset longstanding rules."

Back to top