Preserving Religious Freedom or Upholding Constitutional Principles? Analyzing Kennedy v. Bremerton's Influence on U.S. Law

For centuries now, a separation between church and state has been argued. The place of religion within the U.S. school system has often been debated and precedent has remained unchanged for several decades. In 2022, however, a single U.S. Supreme Court case overturned nearly six decades worth of precedent which established a clear separation between religion and schools. In turn, states like Texas, Alabama, and Florida have taken the court’s rulings to extremes. Several states are now requiring that the Ten Commandments be posted in all public school classrooms. [1] The state of Alabama has attempted to pass legislation that would require all public schools in the state to provide both the equipment and time to students who wish to pray aloud. [2] Under past precedent, these actions would have been a violation of the Establishment Clause. With the abandonment of such precedent, the Establishment Clause’s role in the American school system has become very unclear. The complete upheaval of past precedent has caused a ripple effect in the American school system, further marginalizing students of minority religious groups around the county.

In April of 2022, the U.S. Supreme Court heard the case of Kennedy v. Bremerton School District. In this case, high school football coach Joseph Kennedy sued a Washington school district for firing him after he was asked to discontinue his prayer on three different occasions. The school district claimed that Kennedy had prayed with students at the fifty-yard line several times. [3] In his suit, Kennedy claimed that the school district had violated his right to Free Practice. The U.S. Supreme Court was faced with the following questions: Does employee prayer during school activities fall under protected speech? If so, can the school prohibit it to avoid violating the Establishment Clause? [4] The Court states that the government's desire to remain neutral in regards to religion should not infringe upon an individual's right to practice, and concluded that the school district violated Kennedy’s First Amendment rights. [5] The Supreme Court made it clear that to protect the individual liberties of employees, students, and others, individual prayer—regardless of who the individual is working for or with—is a matter of free speech and free practice. The Court clarified that the reason the case is viewed in light of free speech and not the Establishment Clause is because the prayer at hand was performed quietly, independently, and as determined by the court, at a time when the employee wasn’t working as a school and government representative. [6]

The Court’s decision in Kennedy departed significantly from precedent established by the landmark First Amendment cases Engel v. Vitale (1962) and Lemon v. Kurtzman (1971). Both cases restrict the place of religion in schools to avoid the violation of the Establishment Clause. In Engel, the court held that prayer of any kind in a school was a violation of the Establishment Clause. [7] In Lemon, the Supreme Court was asked to decide whether statutes that provide state funding to non-public, non-secular schools violated the Establishment Clause. In an 8-1 decision, the Supreme Court determined that the funding of such schools excessively entangled the government with religion and hence violated the Establishment Clause. This case led to the formation of the Lemon Test, where three essential requirements were to be met: (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state. If a statute could pass the three-pronged test, it would not have violated the Establishment Clause. [8] After its establishment in 1971, the Lemon Test has been cited over a hundred times by cases that affirmed that religion should be kept away from schools completely. [9]

With Kennedy, this six-decade-long precedent of the Lemon Test was formally abandoned. [10] Prior to the Kennedy ruling, the Supreme Court informally ignored the Lemon Test, insisting that it was irrelevant in many contexts. In doing so, the Court justified completely abandoning the Lemon Test from U.S. law because it has an “‘ahistorical, atextual’ approach to the Establishment Clause and shall henceforth be abandoned.” [11] In deeming the Lemon Test ‘ahistorical and atextual’, the Court has enabled future courts to place greater emphasis on salvaging free practice fights rather than maintaining the separation of church and state. The Lemon Test, having set decades of precedent, had become an integral part of the U.S. education system. Its complete abandonment by the U.S. Supreme Court and the order that all lower courts also abandon the Lemon Test has caused a ripple effect of drastic changes in the lives of students. [12]

In the court's opinion, Justice Gorsuch cited many cases that had previously ignored the Lemon Test to justify its complete ban. The majority of the claims were based on Town of Greece v. Galloway (2014).[13] In the case, citizens who attended a town meeting sued claiming that the prayer at the beginning of the town's governmental meeting violated their First Amendment rights. After reviewing the facts of the case, the Court reasoned that the prayer carried historical meaning in that location and, because it had been recited for such a long period of time, it had become a unique and essential tradition. The opinion cited the prayer as being indirect (without preference to a specific faith) and traditional, highlighting the importance of context over separation of church and state. [14]

In the Court’s decision, all of the cases cited in favor of abandoning the Lemon Test had no relevance to institutions like schools. As stated in the Court’s opinion, “A government policy will fail the general applicability requirement (being able to ensure that the government isn’t in favor or against a religion) if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way”. [15] The specific wording comes from Employment Division v. Smith (1990), a case involving employees who were fired for the religious use of hallucinogenic drugs. [16] The Kennedy Court cited these cases and other recent cases that—despite having little to no relation to the facts at hand—led to the conclusion that without considering the proper context, the application of the Lemon Test threatened individual liberties. As the Court wrote in its opinion, “in place of the Lemon Test the court has instructed that the Establishment Clause be interpreted by reference to historical practices and understanding.” [17] The Court instructed lower courts that when an individual’s rights are in question under the Free Exercise, Free Speech, and Establishment Clauses, individual rights should always surpass Establishment. [18] Kennedy enables government organizations to entangle themselves with religion so long as a contextual approach is taken.

In the dissenting opinion, Justice Sotomayor argued that Kennedy prayed in the center of the sporting event, and that regardless of the prayer being personal, it was done at a school event by an individual acting on the school's behalf. [19] She reasoned that the ruling doesn’t take precedent into account and cautions that overturning of Lemon would alter the place of religion in schools. [20] The dissent stated that the case at hand isn’t about the First Amendment at all, and is instead an issue of what an organization can and cannot do to avoid violating Federal Law. [21] In the dissent, the Court cited Santa Fe Independent School District v. Doe (2000) and noted how, for years, the Court has been careful to understand the social pressures students face when prayer is involved, including the desire for athletes to please coaches which can lead to coercion. [22] In its decision, the Court has put the priorities of individual rights above the needs of democratic society to keep a safe distance between church and state. [23]

The Lemon Test’s three-pronged approach established an outline that guided the policies of many schools. With the complete abandonment of the Test, schools are left to make their own policies surrounding religion with high regard to context. The Court fails to recognize the individual liberties of students who do not belong to the majority religious group. Religious minorities often feel left out even with previous precedent, but with states like Texas justifying the presence of the Ten Commandments in classrooms because of its historical significance to America’s development, religious minorities find themselves out of place. [24] According to Kennedy’s preference for considering historical context, school could justify saying a prayer aloud every morning simply because a major founder of the school belonged to a religious organization. The school could argue that the founder was essential to the school’s history and context, making such prayer important to the school. With the blurring of the line between church and state in classrooms, the Court fails to recognize the individual liberties of students who do not belong to the majority religious group.

The decision also fails to recognize the extent to which the Court's new ruling will be stretched by lower courts. The new statue of Kennedy has been cited over sixty-nine times with a little over a year in its release. [25] The Second Circuit Court cited Kennedy in M.A. v. Rockland County Department of Health (2022) and stated that “this Court (the Second Circuit) will find a First Amendment violation unless the government can satisfy ‘strict scrutiny’ by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” The court ruled that New York's emergency declaration during the measles outbreak to require children who weren’t vaccinated for religious reasons to quarantine was a violation of First Amendment rights, stating that in doing so the school system discriminated against those who have a religious reason to not receive a vaccine. [26]

With the need for American courts to have a standardized method to make decisions on cases, the Western District of Pennsylvania synthesized a new test in the case of Tatel v. Mr. Lebanon School District (2022). The new test disqualifies the neutrality or general applicability of the organization’s religious policy if (1) it is directed at religious practice, (2) discriminates on its face, or (3) religious exercise is the object of the policy. The court further clarified that the policy will not be generally applicable if it prohibits religious conduct whilst permitting secular conduct or if it provides a mechanism for individualized exemptions. [27] This new standard, already implemented by the court in Pennsylvania, was also used in an education case in the North Carolina Court of Appeals in Kelly v. State of North Carolina (2022). In this case, the court cited Kennedy stating that “the constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” The court used the test designed in Pennsylvania to determine that not allowing religious schools to access state voucher programs discriminates against religious practice. The court ruled that the state may not exclude religious schools from its voucher programs, thereby enabling them to access public funding. [28] As the number of cases pertaining to the involvement of religion in schools increases, more courts may opt into using tests similar to that set by the Pennsylvania district court to ensure that religion only appears in educational arenas in a controlled and standardized manner.

In most cases, the new standard established in Kennedy has been used to expand individual liberties. But the vague language of Kennedy seems to know no bounds. Courts in New York have potentially caused a health hazard for vaccinated students, and now governmental support of religious schools opens by allowing their access to public funding. The case has already made a significant impact on the U.S. school system and it can reasonably be expected that in future court cases, individuals' religious liberties will continue to overpower the foundational principle of the separation of church and state. Consequently, with the collapse of the boundaries curbing religious entanglement with education, religious minorities will continue to feel alienated from the U.S. school system.

Edited by Tal Dimenstein

[1] Steven Dial. “Texas Senate Passes Bills Allowing Time for Prayer in Schools, Requiring Ten Commandments in Classrooms,” FOX 4, April 21, 2023, https://www.fox4news.com/news/texas-senate-sb-1515-ten-commandments-school-prayer.

[2] Trisha Crain. “Alabama Bill Would Protect Student-Led Prayer in School, over PA System,” Al.com, March 2, 2023, https://www.al.com/educationlab/2023/03/alabama-bill-would-protect-student-led-school-prayer- pa-broadcasts-of-prayer.html.

[3] Kennedy v. Bremerton School Dist., 597 U. S. 9 (2022).

[4] Kennedy v. Bremerton School Dist., 597 U. S. 21 (2022).

[5] Kennedy v. Bremerton School Dist., 597 U. S. 35 (2022).

[6] Kennedy v. Bremerton School Dist., 597 U. S. 11 (2022).

[7] Engel v. Vitale, 370 U. S. 421 (1962).
[8] Lemon v. Kurtzman, 403 U. S. 602 (1971).

[9] Jethro Koller Lieberman, The Evolving Constitution (New York: Random House Reference, 1992).

[10] Kennedy v. Bremerton School Dist., 597 U. S. 1 (2022).

[11] Kennedy v. Bremerton School Dist., 597 U. S. 16 (2022).

[12] Stephanie Taub and Kayla Toney. “A Cord of Three Strands: How Kennedy v. Bremerton School District Changed Free Exercise, Establishment, and Free Speech Clause Doctrine” fedsoc.org, March 9, 2023, https://fedsoc.org/commentary/publications/a-cord-of-three-strands-how-kennedy-v-bremerton-s chool-district-changed-free-exercise-establishment-and-free-speech-clause-doctrine.

[13] Kennedy v. Bremerton School Dist., 597 U. S. 4, 31 (2022).
[14] Town of Greece v. Galloway, 572 U. S. 565 (2014).
[15] Kennedy v. Bremerton School Dist., 597 U. S. 18, 19 (2022).
[16] Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990).

[17] Kennedy v. Bremerton School Dist., 597 U. S. 28 (2022).

[18] Kennedy v. Bremerton School Dist., 597 U. S. 64 (2022).

[19] Kennedy v. Bremerton School Dist., 597 U. S. 42 (2022).

[20] Kennedy v. Bremerton School Dist., 597 U. S. 42 (2022).

[21] Kennedy v. Bremerton School Dist., 597 U. S. 54 (2022).

[22] Kennedy v. Bremerton School Dist., 597 U. S. 58 (2022).

[23] Kennedy v. Bremerton School Dist., 597 U. S. 74 (2022).

[24] Dial. “Texas Senate Passes Bills,” FOX 4.

[25] Stephanie Taub and Kayla Toney. “A Cord of Three Strands,” Fedsoc.org, March 9, 2023,

https://fedsoc.org/commentary/publications/a-cord-of-three-strands-how-kennedy-v-bremerton-s chool-district-changed-free-exercise-establishment-and-free-speech-clause-doctrine.

[26] M.A. v. Rockland County Department of Health, 53 F.4th 29 (2d Cir 2022).

[27] Tatel v. Mt. Lebanon Sch. Dist., 114 Fed. R. Serv. 3d 295 (W.D. Pa. 2022).

[28] Kelly v. State of North Carolina, 878 S.E. 2d 841 (N.C. Ct. App. 2022).