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One recent Supreme Court case that has attracted much divisive commentary in both the legal and popular press is Kennedy v. Bremerton School District (2022). There, a divided court held that Joseph Kennedy, who served as a football coach at Bremerton High School, could not be removed from his position because of his practice of engaging in a half-minute moment of personal prayer at the conclusion of varsity football games. Notably, these prayers occurred when Kennedy was on a short break from his official duties. That, at least, is the story told by Justice Neil Gorsuch for the majority. Justice Sonia Sotomayor’s dissent paints a very different picture, in which Coach Kennedy was a Pied Piper who lured students from both his own team and that of its opponents to participate in a showy demonstration of Christian faith.
The evident differences in these two capsule summaries matter when it comes to fixing the troubled constitutional line between church and state. The text of the First Amendment sets up the problem: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two short clauses on free exercise and establishment have always been in deep tension. On Gorsuch’s view of the facts, it looks as though a boorish school district trampled the exercise of religious freedom by its own teachers and students. By contrast, the Sotomayor view points to an establishment of religion by the public acts of a single teacher.
In this instance, Gorsuch used his version of the facts not only to vindicate Coach Kennedy but also to put the final nail in the coffin of the highly controversial three-part Establishment Clause test in Lemon v. Kurtzman (1971), used to strike down two statutory programs whereby Pennsylvania and Rhode Island provided financial aid to religious schools to reimburse the costs of teachers’ salaries and textbooks in designated “secular” subjects. Chief Justice Warren E. Burger insisted that under the Constitution, “[f]irst, [any] statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” The entanglement prong proved fatal to both state statutes.