(Editor’s note: This column is part of a Seattle Times Opinion series exploring the First Amendment and its five freedoms.)
In the fall of 2023, assistant football coach Joe Kennedy returned to Bremerton High School after an eight-year legal battle and offered a short prayer at the 50-yard line, this time with the blessing of the U.S. Supreme Court.
Unlike previous years, no one on the field joined him. After he gave media interviews that Friday night, Kennedy left Bremerton’s Memorial Stadium and never came back.
Kennedy moved to Florida and has a website where he touts a book and fields publicity requests. But that’s not the end of it.
His landmark case, Kennedy v. Bremerton School District, continues to reverberate, from a Texas law requiring the Ten Commandments in public schools to President Donald Trump’s recent Department of Justice commission on religious freedom.
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
For many decades there was a clear, bright line between the public sphere and religious life.
That is changing.
Coach Kennedy’s story and the ongoing impact of his legal case show us how.
In 2015, the Bremerton School District learned Kennedy was praying with students on the field and in the locker room. He had been doing so for years, but the district directed him against overt, on-duty activity that could be taken as an endorsement of religion, for fear of violating the First Amendment.
His role on the team paid about $3,000 a season.
Kennedy said the district made clear on his evaluation that he wouldn’t be rehired and, according to the district, he didn’t reapply for the 2016 season. Kennedy later sued the school board. Lower courts, including the 9th U.S. Circuit Court of Appeals in San Francisco, ruled in favor of the board and its argument that allowing him to pray would violate the First Amendment’s prohibition on government establishing a preferred religion.
In 2022, the U.S. Supreme Court ruled 6-3 to overturn the 9th Circuit and pronounced that the district had suppressed Kennedy’s freedom of speech and worship.
“Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” wrote Justice Neil Gorsuch. “The Constitution neither mandates nor tolerates that kind of discrimination.”
Importantly, Gorsuch pronounced that the high court had “abandoned” established legal tests determining whether a law or practice was constitutional or violated the First Amendment’s prohibition against promoting religion.
Justice Sonia Sotomayor countered in her dissent: “This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct.”
Three years after the court’s decision in Kennedy, Texas passed a law requiring each public school classroom to display a copy of the Ten Commandments. The law prescribes specific text drawn from the King James Bible.
By a narrow vote of 9-8, the 5th U.S. Circuit Court of Appeals based in New Orleans upheld the Texas law in April, citing Kennedy — which was noted 112 times in the ruling — as the new legal standard of the land. Not only was religious speech protected as free speech, but there were new standards by which courts would interpret what it meant to establish a religion.
“The lodestar for applying the (Establishment) Clause remains what the Supreme Court held in Kennedy — namely, that a challenged law must be measured against the standard of founding-era religious establishments,” wrote the 5th Circuit majority opinion.
In other words, was the government vigorously promoting a particular religion or sect? Was it trying to establish a religion akin to the Anglican Church in England? If not, ruled the 5th Circuit majority, the activities were permitted under the First Amendment — and that included requiring the Ten Commandments to be posted in public schools.
Dissenting 5th Circuit judges rejected those standards, noting that posting the Ten Commandments created a “subtle coercive pressure” to participate.
Earlier this month, more than two dozen Texas families asked the U.S. Supreme Court to hear their challenge of the state law.
“As a rabbi and parent, forcing a Christian version of the Ten Commandments on children in every classroom is particularly upsetting,” said plaintiff Rabbi Joshua Fixler of Houston, in a news release from the ACLU. “These displays put children in the position of having to defend themselves and their families’ religious beliefs against a government mandate that makes them feel different and separate from their classmates.”
All this legal activity comes as the White House is unabashedly reworking conventional wisdom about church and state.
In June, the Department of Justice released a draft report of the Religious Liberty Commission. Its 12 members included several Trump allies such as Texas Lt Gov. Dan Patrick; Dr. Ben Carson, a Trump adviser and former cabinet secretary; and Dr. Phil McGraw, known to TV viewers as Dr. Phil.
An interfaith group unsuccessfully filed a lawsuit challenging the legitimacy of the commission because it lacked viewpoints and several commissioners were on the record supporting the idea of America as a Judeo-Christian country.
Coach Kennedy gave testimony to the commission and was cited as a case study. The legal case that bears his name “marked the first true victory for religious liberty for teachers and coaches in generations,” read the report.
Recommendations include instructing the Justice Department to clarify the “proper understanding of the Establishment Clause and separation of church and state.”
Given the ideological bent of the commission, it seems “proper understanding” really means allowing for all kinds of religious expression in the public sphere that fall just short of Congress creating an official Church of America.
We are at a pivotal time in American history, say legal experts.
“This is a very straightforward and simple story. It is the story of how this Supreme Court has opened the door (through Kennedy and other rulings) to a radical reinterpretation of what establishment of religion means and what the exercise of religion means that we have not seen before,” said Charles Haynes, senior fellow for religious freedom at the Freedom Forum. “It has real life implications for people.”
This includes prayer in school and government funding for religious groups and whether religious day cares receiving public subsidies can fire LGBTQ+ employees.
“This court is their (religious advocates’) best opportunity to bring about many of the changes that they have long, long fought for,” Haynes told me. “Will they get it all? I don’t know. They may get a lot more than people think.”
