“This Court consistently has recognized that school officials leading prayer is constitutionally impermissible,” wrote Justice Sotomayor. “Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents … The Court now charts a different path.”
The case raised questions about the ability of public employees to live out their faith and the government’s competing responsibility to protect schoolchildren from coercion and to remain neutral on the subject of religion. As in many of the court’s recent cases, it called for interpretation of how the Constitution’s establishment clause, which forbids government endorsement of religion, interacts with its free speech and free exercise clauses, which prohibit government restraints on the private observance of religion.
The Roberts court has recently been overwhelmingly protective of religious rights, and advocates said the case was another opportunity to transform decades of Supreme Court jurisprudence that started 60 years ago with the admonition that government cannot organize and promote prayer in public schools.
The case of Kennedy, an assistant football coach at Bremerton High School in Washington, pitted red states against blue ones, some professional football players against others, divided constitutional experts and drew more friend-of-the-court briefs than any case at the Supreme Court this term, except for the controversies over abortion and gun control.
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The Supreme Court formally overrules the Lemon test and the endorsement test, substantially cutting back the Establishment Clause's separation of church and state. This is another maximalist decision. supremecourt.gov/opinions/21pdf…
With today's decision, the Supreme Court effectively grants special, heightened First Amendment rights to religious speech, allowing public school teachers to pray on the job while denying most other public employees basic free speech rights. supremecourt.gov/opinions/21pdf…
Sotomayor, dissenting: "The court sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance. ... Today’s decision is no victory for religious liberty." supremecourt.gov/opinions/21pdf…
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The school district noted that a judge on the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, had criticized what he called “a deceitful narrative” created by Mr. Kennedy’s lawyers.
Mr. Kennedy was never disciplined for offering silent, private prayers, the judge, Milan D. Smith Jr., wrote last year. Instead, the judge wrote of one game, Mr. Kennedy “prayed out loud in the middle of the football field” just after it finished, “surrounded by players, members of the opposing team, parents, a local politician and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media.”
When the Supreme Court refused to hear an earlier appeal in the case in 2019, four justices expressed qualms about how Mr. Kennedy had been treated.
“The Ninth Circuit’s understanding of the free speech rights of public-school teachers is troubling and may justify review in the future,” Justice Samuel A. Alito Jr. wrote at the time, adding that the justices should wait for more information about “important unresolved factual questions.” He was joined by Justices Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
After further proceedings, the Ninth Circuit again ruled for the school board. This time, the Supreme Court agreed to hear the case, Kennedy v. Bremerton School District, No. 21-418.
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