U.S. Supreme Court Ruling on Prayer
On June 27, 2022, the Supreme Court of the United States issued an opinion in Kennedy v. Bremerton School District, in which a football coach challenged discipline after he disregarded directives not to pray at mid-field. The Supreme Court looked at three circumstances in which Coach Kennedy – who the District had previously directed in writing not to pray on the field while students were present – led prayers, alone, while the team was otherwise occupied and the football coaches were allowed to engage in private actions. The District directed Coach Kennedy to cease praying on the field out of concern that he was causing the District to be in violation of the Establishment Clause of the First Amendment.
The Court reasoned Coach Kennedy’s prayers “were not delivered as an address to the team” and that those prayers were conducted during a time when he was free to “call home, check a text, socialize, or engage in any manner of secular activities” – time when District employees were “free to engage in personal speech and activity.” The Court therefore considered Coach Kennedy off-duty when he engaged in his prayer, despite the District’s argument that he was performing official duties, because he was free to engage in personal, private actions during that time, such as socializing or checking his phone. The Court found that the District’s rules limiting Coach Kennedy’s prayers were subject to strict scrutiny because the rules targeted Coach Kennedy’s religious action of praying at the 50-yard line of the football field while on his personal time, holding that the District violated the Free Speech and Free Exercise rights of Coach Kennedy. In doing so, the Court abandoned the Lemon test that had been relied upon and pronounced a test that requires analysis of the public employee’s religious activities in “accord with history” and the faithful reflection of the “understanding of the Founding Fathers.” The majority opinion acknowledged a point made by Justice Sotomayor in her dissent, that this new method for analysis does not “afford school administrators sufficient guidance,” but left to lower courts the task of analyzing how the new test applies.
Finally, the Court emphasized that “coercion can be a hallmark of an Establishment Clause violation,” but stated that the Bremerton School District failed to prove facts supporting coercion. The majority outlined that proving coercion requires evidence that "anyone sought to persuade or force students to participate" or "formal school program[ming] accommodating the religious activity at issue." The majority opinion also ruled the District failed to raise the arguments of disruption caused by Coach Kennedy’s conduct or misuse of school facilities.
It is too early to fully understand the impact of the Court's decision on what will likely be a litany of new prayer-related challenges. It is not yet clear whether the courts in Illinois will take an expansive or limited view of the Court's reasoning, but we do not interpret the decision to mean that the Supreme Court would affirm a coach gathering student-athletes for the purpose of prayer, and the reasoning suggests the Court would continue to prohibit teachers from praying with students in a classroom. The Court reiterated that the incorporation of a prayer, no matter the denomination, into a graduation ceremony is unconstitutional, and that prayers in student football games are unconstitutional, even when initiated and delivered by students rather than staff. As the landscape has changed, however, it will be important that each situation a school confronts is analyzed carefully on its own facts, and that schools consider their individual circumstances and risks with each new challenge.