The Supreme Court (SCOTUS) reversal of the Kennedy v. Bremerton School District lawsuit signals a tectonic shift in religious freedom in the U.S., and few seem to realize its importance. The June 2022 landmark majority opinion, written by Justice Neil Gorsuch, centered on firing a high school coach because of his expression of faith. The 6-3 decision sets a game-changing precedent, effectively signaling an end to the separation of church and state. The SCOTUS decision has the power to usher in a new era of First Amendment-protected religious freedom for Americans. After a seven-year legal battle, the decision also restored Coach Kennedy’s job, set to restart on September 1st.
Kennedy v. Bremerton in Bremerton, WA, centers around high school coach Joe Kennedy, whose habit was to kneel in prayer at the 50-yard line after his high school football games. Kennedy was fired because of his persistent demonstration of faith. His purpose was to give “thanks through prayer” shortly after each game.
Coach Kennedy was devastated by the District’s decision to fire him. His powerful ability to inspire others may have led to what he thought at the time would be the end of his career. He told his heartfelt story produced by The Daily Signal.
Gorsuch’s Opinion on Kennedy v. Bremerton School District
As written in the Gorsuch opinion, the Bremerton District frowned upon his decision to “persist in praying quietly without his students after three games in October 2015.” The District disciplined Kennedy only after he persisted. The school district said it was motivated by fears of violating the First Amendment’s Establishment Clause.
The Establishment Clause forbids the government from the “establishment” of a religion. It also prohibits the government from favoring one religion, including “non-religion over religion.” The Clause enshrined in the Constitution has been highly debated partly because of a failure to define what “establishment” means precisely.
Gorsuch agreed that the school might argue it was justified in adhering to the Establishment Clause. However, the District contends Gorsuch was missing an important nuance. Gorsuch argued that the Establishment Clause rested on the 1971 case, Lemon v. Kurtzman, out of which rose what is called the “Lemon test.”
The Lemon test holds that “the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”
To clarify, Lemon v Kurtzman is more specifically related to school funding. It prohibited the government from providing supplemental funding to religious schools because it violated the Establishment Clause and the separation of church and state.
Dismissing Lemon as having been “long ago abandoned,” Gorsuch, instead, urged adherence to the Constitution as intended by its drafters. He called upon courts to look at “history and the understanding of the drafters of the Constitution—which the court of appeals failed to do.”
Justice Gorsuch also bristled at the District’s argument that Coach Kennedy might have been seen to be coercing students to pray with him. Gorsuch wrote, “There is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension.”
Gorsuch compared Kennedy’s case to others that may have demonstrated problematic coercion and, in doing so, argued Kennedy’s prayers “were not publicly broadcast or recited to a captive audience,” and students “were not required or expected to participate.” Gorsuch also pointed out that the school had no “duty to ferret out and suppress religious observances even as it allows comparable secular speech.” Instead, Gorsuch again adheres to the Constitution as one “that neither mandates nor tolerates that kind of discrimination.”
Ultimately Gorsuch concluded, “the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions, at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned ‘object.'” Gorsuch also wrote, “The District thus conceded that its policies were neither neutral nor generally applicable.”
First Liberty Institute Challenges Americans to Restore Faith in America
Kelly Shackleford, President and CEO of First Liberty Institute, recorded his sincere message two weeks ago for a First Liberty project called Restoring Faith in America (RFIA). First Liberty is the largest legal organization in the country engaged in protecting religious freedom. Shackleford discusses the consequential SCOTUS decision as an opportunity to turn the tide. He encourages and even implores Americans, especially pastors, to seize this “lifetime” opportunity to restore religious freedom as a fundamental Constitutional right in the U.S. Shackleford writes on the RFIA website:
“This is a first simple yet powerful step we can take to restore faith in our schools. It could even help spark revival throughout our country. God has opened an incredible door for all Americans to express their faith and bring faith back to our communities.”
It should be noted, however, that while admittedly Christian in worldview, the website encourages other expressions of faith. On its “Take the Challenge” page, the RFIA project urges Americans to “restore faith where you live” with ideas and ways to do so. Suggestions range from “putting up a menorah” or a nativity scene in schools to a restored “commitment to prayer.” As such, Shackleford encourages people of faith to step forward with renewed vigor.
Shackleford believes the first step to restoring religious freedom throughout the nation is to “Take the First Freedom Challenge” by taking a knee with Coach Kennedy when he returns to his job on September 1st. Shackleford believes “God has opened an incredible door for all Americans to express their faith and bring faith back to their communities.” Taking the First Freedom Challenge includes sharing the message on social media, recording short messages with testimony about the importance of faith, and asking others to pray in schools.
The First Freedom Challenge, says Shackleford, “is the first simple yet powerful step we can take to restore faith in our schools.” The Regaining Freedom project declares there is a “fresh wind blowing in America,” and it is time to restore speech as our Founders envisioned it.