What is it about football and religion? The U.S. Supreme Court has now twice, in recent memory, entertained the issue of prayer at public school football games.
In Santa Fe Independent School District v. Doe (U.S. Sup. Ct., 2000), the Court held that student-initiated prayer at public school football games violated separation of church and state principles under the First Amendment’s Establishment Clause. Key to its decision was the fact that the prayer in question was delivered “over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer.”
Yet this past June, the Court held in Kennedy v. Bremerton School District (U.S. Sup. Ct., 2022) that not allowing a football coach to pray, often with students, on the 50-yard line immediately following public school football games violated the coach’s religious free exercise rights.
The Kennedy decision illuminates a remarkable shift by the Court in its views on the free exercise versus the establishment of religion (see Kim, 2022). It also moves the goalpost on a key question: When does state-sponsored religious exercise become coercive?
The emergence of the ‘coercion’ inquiry
Prior to Santa Fe and Kennedy, the Court had repeatedly invalidated prayer (or prayer-adjacent) activities in public schools — including classroom religious recitations in Engel v. Vitale (U.S. Sup. Ct., 1962); Bible readings in School District of Abington Township v. Schempp (U.S. Sup. Ct., 1963); “moments of silence” for meditation or prayer in Wallace v. Jaffree (U.S. Sup. Ct., 1985); and religious invocations at graduation ceremonies in Lee v. Weisman (U.S. Sup. Ct. 1992).
In the earliest of these cases, Engel, the Court didn’t dwell on the issue of coercion, almost assuming its presence when the state got involved in religion:
The Establishment Clause . . . [may be] violated . . . whether [the government] operate[s] directly to coerce nonobserving individuals or not. [However,] when the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.
In Schempp, the Court continued this line of thinking, explaining that violations of the Establishment Clause need not be predicated on the presence of explicit government coercion. Instead, it held that conducting school-sponsored Bible readings at school violated the principle of “strict neutrality,” whereby the government is “neither aiding nor opposing religion.”
In the 1985 Jaffree decision, though, the Court held that a state-authorized “period of silence” for meditation or voluntary prayer impermissibly “endorsed” religion and potentially had a coercive effect: “[W]hen government-sponsored religious exercises are directed at impressionable children who are required to attend school,” it stated, “then government endorsement is much more likely to result in coerced religious beliefs.”
By 1992, in the Lee case, the Court had embraced a coercion inquiry, stating unequivocally that “the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” The Lee Court highlighted the “subtle coercive pressures” that exist in religion-infused invocations and benedictions at high school graduation ceremonies, where students have “no real alternative which [allow them] to avoid the fact or appearance of participation” in an “overt religious exercise in a secondary school environment.”
And finally, back to religion and football: In 2000, the Court in Santa Fe stated:
Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.
The Kennedy decision
So what happened in the Kennedy decision? It’s worth highlighting the stark contrast between the justices in their versions of the facts in the case. According to the majority, led by Justice Neil Gorsuch, an innocent high school football coach was fired because he briefly and unobtrusively “knelt at midfield” after football games, when students were “otherwise occupied” or had left the field altogether, “to offer a quiet prayer of thanks.” In this scenario, the majority found no evidence that students were coerced to pray. Even though some might be offended, Gorsuch noted that “offense does not equate to coercion.”
In contrast, the dissenting justices, led by Justice Sonia Sotomayor, pointed out that most of the students on the football team had, over time, come to pray with the football coach, who would “hold aloft student helmets and deliver speeches with overtly religious references . . . while the players kneeled around him.” The coach had also prayed with students in the locker room before being ordered to stop doing so. Thus, this case was, according to Sotomayor, not about private prayer while at work, but about “whether a school district is required to allow one of its employees to incorporate a public, communicative display of [his] personal religious beliefs into a school event.” Sotomayor continued:
The District Court found, in the evidentiary record, that some students reported joining [Coach] Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work.
But the Court in Kennedy did far more than merely overcome the coercion inquiry with a selective rendering of the facts. It also effectively eliminated two major doctrinal avenues that had, in the past, helped to maintain the separation of church and state: the Lemon test and the endorsement inquiry.
In Lemon v. Kurtzman (U.S. Sup. Ct., 1971), the Court articulated a three-part framework for determining whether a government law or policy meets the requirements of the Establishment Clause: Does it have a “secular legislative purpose,” “neither advance nor inhibit” religion, and avoid “excessive government entanglement with religion”?
And in the 1980s, Justice Sandra Day O’Connor became the leading proponent of a related but independent principle that the government must not “endorse” religion because doing so would “send a message to [religious] nonadherents that they are outsiders . . . and an accompanying message to [religious] adherents that they are insiders” (Lynch v. Donnelly, U.S. Sup. Ct., 1984; see also Biegel, Kim, & Welner, 2019).
Over the years, some on the Court had criticized Lemon and the endorsement inquiry as rigid and hostile toward religion. Still, the Kennedy decision represented something of a seismic shift by declaring that the Court had “long ago abandoned Lemon and its endorsement test offshoot.” In their place is a new inquiry that requires examination of whether government behavior is in accord with “historical practices and understandings . . . of the Founding Fathers.” In other words, when deciding whether it’s OK for an employee, in the 21st century, to pray at a school-sponsored event, school officials (and judges) must now ask: What would James Madison do?
Evidently, according to this Court, Mr. Madison and his compatriots would disagree with the principles underlying Lemon or inquiring into governmental endorsement of religion.
This retrospective inquiry, often referred to as originalism, rejects the notion that constitutional principles may evolve over time and insists instead that the Constitution and its amendments be interpreted exactly as their authors intended. Kennedy is only one of several recent cases in which the Court has lurched in this direction. Indeed, during the very same week it announced the Kennedy decision, the Court issued two other blockbuster rulings that also relied heavily on an originalist approach — to overrule Roe v. Wade (in Dobbs v. Jackson) and strike down a New York law limiting the right to carry concealed firearms (in New York State Rifle and Pistol Association v. Bruen).
A narrower definition of coercion
The Court in Kennedy seems to have narrowed what coercion means in the public school context. While it’s still fairly clear that, at least in traditional public schools, compulsory religious indoctrination or incantations are still out of bounds, it’s no longer clear if or when subjecting students to someone else’s religious free exercise is improperly coercive.
The questions, when it comes to religious practices of teachers and staff, are many: When and how is it appropriate for school employees to engage in “personal” prayer in the presence of students? In what kind of setting? At what juncture of the school activity or event? Does the relationship or authority level between the employee and the students — or the students’ age and maturity level — matter? Depending on the answer to these questions, students may face subtle — or not so subtle — “coercive pressures” to engage in religious practices, to use the Court’s language from 1992.
Today’s Supreme Court, however, likely believes not only that many religion-infused encounters between public school employees and students are not coercive, but also that they showcase positive examples of religious free exercise. Meanwhile, we’ll have to wait for Mr. Madison to weigh in.
References
Biegel, S., Kim, R., & Welner, K. (2019). Education and the law (5th ed.). West Academic Publishing.
Kim, B. (2022). Public schools, religion, and equality after Carson v. Makin. Phi Delta Kappan, 104 (1), 60-61.
This article appears in the October 2022 issue of Kappan, Vol. 104, No. 2, pp. 60-61.
ABOUT THE AUTHOR
Robert Kim
Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.
