Kennedy vs. Bremerton School District

It's a familiar sight in both college and high school in cities and towns across America. Football players and coaches, sometimes of opposing teams, gathering before or after a game to pray together on the 50-yard line. But even if it is a traditional practice, it wasn't clearly legal if the schools are public. Until now.  

The Supreme Court ruled Monday that a high school football coach had a constitutional right to pray at the 50-yard line after his team's games. 

Justice Neil Gorsuch, writing for the majority, said that Joseph Kennedy's praying after games was protected by the First Amendment and that the school district had erred in suspending him after he refused to stop.

In part, Gorsuch said: 

"...no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving 'thanks through prayer' briefly 'on the playing field' at the conclusion of each game he coaches. The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy's brief prayer, 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.'...The First Amendment's protections extend to "teachers and students," neither of whom 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' "

Speaking about the separation of church and state issue, Gorsuch pointed out that Kennedy's prayer was individual, not some government-approved prayer or message. "That Mr. Kennedy used available time to pray does not transform his speech into government speech." The so-called "Lemon test" from the case of Lemon vs. Kurtzman held that the Establishment Clause is implicated whenever a hypothetical reasonable observer could conclude the government endorses religion." Gorsuch argued that the courts had already overruled the Lemon test and that allowing something does not equal government endorsement. That would require a much more active approach in enforcing a standard that only non-religious behavior is permitted. 

Delving into history, Gorsuch points out that the framers were interested in preventing the regulation of religious expression. To the extent that they were concerned about religion, no one religion would have government endorsement, and from that, the force of law. Instead, individuals should be free to express themselves or not according to their own beliefs. He points out that this freer interpretation would also allow a Christian school employee to pray over a meal in the cafeteria or a Muslim teacher to wear a hijab in the classroom. These are all individual expressions of free speech. 

In her dissent, Justice Sonya Sotomayor argued that because the coach had led student prayer previously (but ended it when the District asked him to), the goal was a public practice, not private religious beliefs. Also, the prayer excluded people of other faiths in a diverse district and would lead to many groups asking for equal time for their religious practices. Far from solving a problem, it would create others, she concluded. She also maintained that Lemon had not been previously overruled but that this case had afforded an opportunity to support it by restricting public employees from open religious observances on public time. 

Held-- "The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression."