Supreme Court Rules Religion-Hating Schools Cannot Fire Employees for Praying
The First Amendment to the Constitution provides in clear, unmistakable language that “Congress shall make no law . . . prohibiting the free exercise” of religion. This rule applies to the States under the Fourteenth Amendment. Although one might suppose that the clarity of the Free Exercise Clause (as it is commonly known) would deter unscrupulous politicians from restricting religious freedom, that has not been the case in California. Gavin Newsom, the far-Left governor of California, seized the opportunity afforded by the Plandemic to prohibit and outlaw religious services during the Plandemic’s duration — or at least until Newsom decided in his absolute and sole discretion to relax the restrictions. Here is a man who lacks either the wit to understand the Constitution or the integrity to be guided by it.
It was during this season of Newsom’s outlawing of the normal and customary practice of religion (that is, religious services inside a house of worship with the congregation present) that I, my wife, my son, and my mother-in-law went to a public park to pray. We took turns reciting passages from the Old and New Testaments, sang a few hymns, and engaged in silent prayer. The park was nearly deserted, and no one protested what we were doing or took steps to stop us. We were free to pray. In that regard, we were more fortunate than Joseph A. Kennedy, an almost 20-year U.S. Marine Corps veteran and a high school football coach in Bremerton, Washington. Coach Kennedy had the temerity to quietly pray to his Creator after the end of football games, and for that act he was fired by the Bremerton School District and its religion-hating apparatchiks. Had he merely taken a knee to protest alleged social injustice ala Colin Kaepernick, he undoubtedly would have been applauded by the School District and permitted to retain his position as football coach. But because prayer is not welcome at Bremerton school football events as far as these apparatchiks are concerned, he was fired.
We should all be grateful to Coach Kennedy that he did not elect to acquiesce in this gross and tyrannical violation of his right to freely exercise his religion. Instead, this man of great courage and tenacity filed a complaint against the Bremerton School District in United States District Court. After much litigation, the case made its way to the Supreme Court of the United States. On June 27, 2022, the Supreme Court determined in Kennedy v. Bremerton School District that the School District had unlawfully and unconstitutionally fired Coach Kennedy for silently praying after football games.
The facts in greater detail are these. Joseph Kennedy began working as a football coach at Bremerton High School in 2008. Like other coaches across the country, he made it a practice to give thanks to God through prayer on the playing field at the end of each game. For more than seven years, no one complained about this. However, in or around September 2015, Coach Kennedy’s prayers came to the attention of Bremerton School District’s top management (ironically, as the result of positive comments made by an opposing football coach). Anxious to suppress religion and prayer to God, the District used the cudgel of the Establishment Clause of the First Amendment to inform Kennedy that the District was taking away his right to freely exercise his religion because that right “must yield as far as necessary to avoid school endorsement of religious activities.” In response, Coach Kennedy told the District that he sought only the opportunity to wait until the game was over and the players had left the field and then to walk to midfield and say a short, private, personal prayer. The District responded with an ultimatum on October 16, 2015: Coach Kennedy was forbidden to engage in any overt actions that could appear to a reasonable observer to endorse prayer while he was on duty. One week later, the District sent him a letter telling him he could only pray after a game if he did so behind closed doors where no one could see him. After the final game of the season on October 26, 2015, Coach Kennedy went to midfield after the players had left to engage in post-game traditions, knelt alone, and offered a brief prayer. While he was praying, other adults — but no school-age team players — joined him.
The District then placed Coach Kennedy on administrative leave, gave him a poor performance evaluation for the 2015 season (even though he had received uniformly positive evaluations every year since 2008), and declined to renew his contract.
As mentioned earlier, Coach Kennedy filed a complaint in United States District Court, and litigation ensued. The lower federal courts, siding with the School District, generally treated the Free Exercise Clause of the Constitutional as a second-class right, subservient to the prohibitions of the Establishment Clause. But the Supreme Court of the United States thought otherwise. Justice Gorsuch, writing the opinion for a 6-3 majority, held that it was unconstitutional for the School District to effectively fire Coach Kennedy for praying. The First Amendment, according to the Supreme Court, doubly protects religious speech — both the Free Exercise Clause and the Free Speech Clause protect prayers and religious speech. The Supreme Court determined that “[t]he District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.” (Italics in the original). In the majority’s view, the Free Exercise Clause “protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance (or abstention from) physical acts.’”
Justice Sotomayor dissented, joined by Justices Breyer and Kagan. Justice Sotomayor cited Wallace v. Jaffree (1985) (mandatory moment of silence for prayer unconstitutional); Engel v. Vitale (1962) (nonmandatory recitation of one-sentence prayer unconstitutional); and Lee v. Weisman (1992) (non-denominational general benediction at a graduation ceremony held unconstitutional).
The problem, though, is that these same precedents exhibit extreme judicial hostility toward religion so overwhelming that it effectively transforms the right to freely exercise one’s religion into a second-class right, something that the Left has been doing for decades with respect to the Second Amendment right to bear arms. Stated plainly, the argument that the government is establishing a religion whenever a governmental employee offers a nondenominational prayer in public is absurd on its face.
When the Constitution was drafted and ratified, the Framers had in mind England’s establishment of the Church of England as the official state church. This has never happened in the United States of America and, moreover, has never even come close to happening on any state-wide scale. Whenever an objection is raised that a particular policy or event violates the Establishment Clause, the question that should be asked is “what religion is the government seeking to establish?” The Roman Catholic Church? The Baptist Church? The Jewish faith? The Islamic faith? Hinduism? Buddhism? Unless the proponent of the argument that the Establishment Clause is being violated can point to a specific religion that is being “established” in the 18th-century sense of such term (in other words, England’s establishment of the Church of England as the official state religion), the argument should be summarily rejected, and there should be a finding that no violation of the Establishment Clause has occurred or is occurring.
Thus, a law that provides school funding for Catholic schools but not Jewish or Hindu schools would cross the boundary and be unconstitutional, but a law providing funding for all religious schools irrespective of the denomination would pass muster. Similarly, a non-denominational invocation or prayer by a government employee at a public gathering does not violate the Establishment Clause because no particular religion is being established. Although God-hating atheists in our country undoubtedly would disagree, the Establishment Clause of the First Amendment does not require us to abandon prayers to the Almighty in public discourse.
It’s time to end judicial hostility to religion and the tendency of courts to view the right to freely exercise one’s religion as a second-class right. Kennedy v. Bremerton School District goes part of the way toward this objective, but more Supreme Court case law is needed.
