Coach Kennedy's Prayer at Midfield and the End of the Lemon Test

The game is over. The crowd is thinning out of the stands in a small Washington shipyard town. One man in a coaching jacket walks to the fifty-yard line, takes a knee, bows his head, and says a short prayer. It lasts about thirty seconds. Then he gets up.

For this, the school district put him on leave. For this, the case went to the Ninth Circuit twice, and then to the Supreme Court. For this, Americans spent years arguing about whether the First Amendment, which begins by forbidding Congress to make any law "respecting an establishment of religion, or prohibiting the free exercise thereof," allows a man to pray in public if he happens to be on the government's payroll.

The answer, delivered on June 27, 2022, in Kennedy v. Bremerton School District, was yes. It also did something larger. It retired a test that had confused the law of the Establishment Clause for half a century and that one justice had compared to a monster that would not stay dead.

The facts

Joseph Kennedy was an assistant football coach at Bremerton High School, in Washington State, beginning in 2008. After games, he walked to midfield and offered a brief prayer of thanks. He did it alone at first. Over time some players asked to join him, and some did. At various points players from the other team joined as well. He also gave motivational talks that had a religious tone, and he stopped those when the district raised concerns.

In September 2015 the district's superintendent told him to stop. The district's position was that his prayer, in view of students and the public, could look like the school endorsing religion, which would violate the Establishment Clause. Kennedy tried to comply with the district's request in a modified way. He said he would pray after the students had left and the stands had cleared. But after he received a letter from the district, and a public back-and-forth, he knelt at midfield again after a game in October 2015. The district put him on paid administrative leave. A post-season evaluation advised against rehiring him, and he did not return the next season. He sued.

The Ninth Circuit ruled against him. It held that when Kennedy prayed he was speaking as a public employee and not as a private citizen, so the First Amendment did not protect him, and that even if it did, the district's interest in avoiding an Establishment Clause violation justified its action.

The question

The Court framed two questions. Did the district violate the Free Exercise and Free Speech Clauses by punishing a public school employee for a brief, quiet, personal religious observance? And if so, did the Establishment Clause nonetheless require the district to act as it did?

The text and its history

Here the constitutionalist's method is the right one: start with the text, then the history.

The Establishment Clause says Congress shall make no law "respecting an establishment of religion." The Free Exercise Clause protects the right to practice. The two clauses were written by people who had lived with established churches. Virginia had taxed its citizens to support the Anglican Church until Madison and Jefferson ended it in the 1780s with the Virginia Statute for Religious Freedom. Massachusetts, Connecticut and New Hampshire kept established churches for years after the Constitution was ratified. The Framers wanted to prevent a national church and the coercion that came with it: compulsory attendance, taxes for a favored church, and legal penalties for dissent.

Jefferson's 1802 letter to the Danbury Baptists, which spoke of "a wall of separation between Church and State," became famous long afterward, when the Court quoted it in Everson v. Board of Education in 1947. Whatever you make of the metaphor, a wall between a government and a church is a different thing from a wall between a citizen and his own faith. Nothing in the text or the history of the clause says that a person who works for the government must leave his religion at the door.

The Lemon test

In Lemon v. Kurtzman in 1971, the Court, in an opinion by Chief Justice Burger, announced a three-part test for whether a government action violates the Establishment Clause. A law or practice survived if it had a secular legislative purpose, if its primary effect neither advanced nor inhibited religion, and if it did not foster "excessive government entanglement with religion."

It sounded neat. In practice, it produced decades of confusion. The test was applied unevenly, and the Court itself sometimes ignored it. It was a test that could be used to strike down a nativity scene in one town and uphold one in another, depending on what else was on the lawn. A later gloss added the "endorsement test," which asked whether a reasonable observer would think the government was endorsing religion. Another test, from Lee v. Weisman in 1992, asked about psychological coercion, in that case at a graduation prayer.

Justice Scalia mocked the Lemon test memorably in a 1993 concurrence in Lamb's Chapel v. Center Moriches Union Free School District. He compared Lemon to a ghoul in a late-night horror movie that keeps climbing out of its grave after being buried, frightening the little children and the school lawyers. He was not alone. A number of justices of different views had questioned the test over the years.

Then came a quieter line of cases that pointed toward something else.

• Marsh v. Chambers (1983). The Court upheld the Nebraska legislature's practice of opening with a prayer by a paid chaplain, and did not apply Lemon. It relied on the history: the First Congress, which wrote the First Amendment, hired a chaplain.
• Town of Greece v. Galloway (2014). The Court, in an opinion by Justice Kennedy, upheld the practice of opening town board meetings with a prayer, relying on Marsh and saying the Establishment Clause "must be interpreted by reference to historical practices and understandings."
• American Legion v. American Humanist Association (2019). The Court, in an opinion by Justice Alito, upheld the 32-foot Peace Cross in Bladensburg, Maryland, a World War I memorial on public land, and it said that Lemon was not suited to monuments and practices of long standing. Seven justices voted to uphold the cross, and several of them criticized Lemon more broadly.

By 2022, the test was alive in name and nearly dead in practice.

The holding

Kennedy v. Bremerton was decided 6 to 3. Justice Gorsuch wrote the opinion. He held three things.

1. The prayer was private speech. Kennedy offered his prayers during a period when coaches were free to attend to personal matters, such as checking a phone or greeting a friend, and he was not speaking as part of his job. Under Garcetti v. Ceballos (2006), the government may regulate what an employee says as part of official duties, but it may not regulate what he says as a citizen. The Court found that Kennedy was not paid to pray. His prayer was not a part of his job, and the district did not hire him to deliver any message.
2. The district's policy was not neutral or generally applicable toward religion. It targeted religious conduct for burdens it would not impose on comparable secular conduct. That triggered strict scrutiny, which requires the government to show a compelling interest pursued by narrowly tailored means. The district's claim that it needed to avoid an Establishment Clause violation did not meet that standard.
3. The Establishment Clause did not require it. The Court said the Establishment Clause is to be understood "by reference to historical practices and understandings," not by the Lemon test and its offspring. The Court said that it had long ago abandoned Lemon and the endorsement test that grew out of it. Looking to history, there was no founding-era tradition of punishing a government employee for a private religious act, and no coercion of anyone to pray.

Gorsuch gave a short answer to the district's worry that students would feel pressure. The opinion noted that the record did not show that Kennedy coerced anyone, and observed that learning to tolerate speech or prayers of others is part of learning how to live in a free and diverse republic. He wrote that respect for religious expression is indispensable to life in a free and diverse republic, a sentiment found in the opinion's closing passages.

Here is what the Court did not hold. It did not say that a teacher may lead a class in prayer. It did not say a coach may require players to join. The key facts were that the prayer was personal, brief, and not required. The majority also stressed that the case did not involve a coach praying while leading students or while speaking as a school official. Government-sponsored prayer, with real coercion, still violates the Establishment Clause.

The dissent, stated fairly

Justice Sotomayor, joined by Justices Breyer and Kagan, wrote a dissent that deserves to be taken seriously, because it was a dissent about the facts as well as the law.

Her case had three parts. First, she argued that the majority misdescribed what happened: Kennedy's prayers were not quiet and private, but public displays on the field after games, with the participation of students, sometimes accompanied by media coverage. The dissent included photographs of the field to make the point. Second, she argued that a coach is a role model in the eyes of students, and that a coach who prays on the field in front of players puts pressure on them to join, because a student who wants playing time may feel that he must go along. The Establishment Clause, she said, protects against that kind of pressure on students in a public school. Third, she charged that the majority had abandoned the longstanding separation of church and state and replaced it with a test of history that was easy to manipulate.

It is a thoughtful dissent. The concern about coercion of high school students by an authority figure is a real one, and it is the concern that gave the Court's school-prayer cases of the 1960s and 1990s their weight. Reasonable people can differ about how to read the record on the field.

Here is the answer, in three steps.

1. The Court looked at the record the district had made. As the Court read it, the record showed no student pressured to join the prayers for which he was disciplined, and the district's worry was how the prayer would look. A district that treats the appearance of a private prayer as a violation, even one offered after the stands have cleared, is acting against religion as such.
2. The coercion cases involve coercion. In Lee v. Weisman, the school arranged for a clergyman to give a prayer at a graduation. The state wrote the prayer and the state picked the clergyman. Here, no one was told to participate. The remedy for a student who prefers not to join is the same as for any other thing he disagrees with: do not join.
3. A rule that the government employee must hide his faith is not neutrality. It is a preference for the secular. The First Amendment protects both the person who prays and the person who does not. A school may require a coach to do his job. It may not require him to hide his religion when he is off duty in a public place.

History and tradition as the test

The more lasting part of the case is the method. Gorsuch said that the Establishment Clause must be read by "historical practices and understandings." This test asks what the Founding generation did and what long practice has shown. It allows legislative prayer, as in Marsh and Greece. It allows a Peace Cross. It forbids a state church, compulsory taxes for a church, and coerced participation.

Some conservatives worry that "history and tradition" is as slippery as Lemon, and that the history is contested. That is a fair worry, and the same worry applies to the Court's approach to the Second Amendment in Bruen. Evidence of historical practice can be mixed. But a test anchored in what actually happened is at least a test that a judge can be held to, and it is better than a three-part formula with no connection to the text. The Founders' own practice, including the hiring of chaplains by the First Congress and the proclamations of days of thanksgiving by Washington and others, is the best evidence we have of what they thought the clause allowed.

What it means for a family

If you work for a public school, a city, or a state agency, the case tells you that your faith does not stop at the door of your workplace, so long as you are not using your position to compel anyone, and not doing so on the clock as a part of your duties. If you send your children to a public school, the case does not change the rule that the school may not lead them in prayer or require participation. And if you are a school board member or an administrator, it tells you that you cannot treat private religious expression as a violation by default.

For the larger story of how the Court has handled the relation of faith and government, see Seven Myths About the Roberts Court, Tested Against Its Own Opinions. For the way the Court honors its own past when it overturns a rule like Lemon, read Stare Decisis Explained, and the Factors Justices Weigh Before Overruling and From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule. The tension between rights and administrative power appears in 303 Creative Was About Compelled Speech, Not a License to Refuse Customers, which turns on speech, and the case for reading old texts as written is in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

The case in brief

1. The First Amendment forbids Congress to establish religion and protects its free exercise, and the Framers meant to prevent a state church and coercion, not to banish religion from public life.
2. Lemon v. Kurtzman (1971) offered a three-part test that produced confusion for fifty years, and Marsh, Greece and American Legion showed the Court drifting toward history.
3. Kennedy v. Bremerton (2022) held that a coach's brief private prayer was protected speech and exercise, that the district's policy failed strict scrutiny, and that the Establishment Clause is read by historical practices and understandings.
4. Sotomayor's dissent raised a serious concern about pressure on students, and the answer is that the record showed no coercion and that coercion, not visibility, is what the Establishment Clause forbids.
5. The ruling protects personal religious expression without allowing teacher-led or compelled prayer.

What you can do: read the Religion Clauses of the First Amendment, then attend one meeting of your local school board and ask how it treats the religious expression of its employees.