JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting.
This case is about whether a public school must permit a
school official to kneel, bow his head, and say a prayer at
the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale, 370 U. S. 421 (1962), this
Court consistently has recognized that school officials leading prayer is constitutionally impermissible.
Official-led prayer strikes at the core of our constitutional protections
for the religious liberty of students and their parents, as
embodied in both the Establishment Clause and the Free
Exercise Clause of the First Amendment.
The Court now charts a different path, yet again paying
almost exclusive attention to the Free Exercise Clause’s
protection for individual religious exercise while giving
short shrift to the Establishment Clause’s prohibition on
state establishment of religion. See Carson v. Makin, 596
U. S. ___, ___ (2022) (BREYER, J., dissenting) (slip op., at 1).
To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding
practice of conducting demonstrative prayers on the 50-
yard line of the football field. Kennedy consistently invited
others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption
to school events caused by Kennedy’s conduct, viewing it as
irrelevant because the Bremerton School District (District)
stated that it was suspending Kennedy to avoid it being
viewed as endorsing religion.
Under the Court’s analysis,
presumably this would be a different case if the District had
cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access
to the field as grounds for suspending him. As the District
did not articulate those grounds, the Court assesses only
the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice.
Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, 403 U. S. 602
(1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. Ante, at
22. In the process, the Court rejects longstanding concerns
surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the
Court reaffirms that the Establishment Clause prohibits
the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced
by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s
longstanding commitment to the separation of church and
state. I respectfully dissent.
As the majority tells it, Kennedy, a coach for the District’s
football program, “lost his job” for “pray[ing] quietly while his students were otherwise occupied.” Ante, at 1. The record before us, however, tells a different story.
The District serves approximately 5,057 students and
employs 332 teachers and 400 nonteaching personnel in
Kitsap County, Washington. The county is home to Bahá’ís,
Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians,
and many denominations of Christians, as well as numerous residents who are religiously unaffiliated.
See Brief for
Religious and Denominational Organizations et al. as
Amici Curiae 4. The District first hired Kennedy in 2008, on a renewable
annual contract, to serve as a part-time assistant coach for
the varsity football team and head coach for the junior varsity team at Bremerton High School (BHS). Kennedy’s job description required him to “[a]ccompany and direct” all
home and out-of-town games to which he was assigned,
overseeing preparation and transportation before games,
being “[r]esponsible for player behavior both on and off the
field,” supervising dressing rooms, and “secur[ing] all facilities at the close of each practice.” App. 32–34, 36. His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave. Id., at 133. The District also set requirements for Kennedy’s interactions with players, obliging him, like all coaches, to “exhibit
sportsmanlike conduct at all times,” “utilize positive motivational strategies to encourage athletic performance,” and serve as a “mentor and role model for the student athletes.”
Id., at 56. In addition, Kennedy’s position made him responsible for interacting with members of the community.
In this capacity, the District required Kennedy and other
coaches to “maintain positive media relations,” “always approach officials with composure” with the expectation that they were “constantly being observed by others,” and “communicate effectively” with parents. Ibid.
Finally, District coaches had to “[a]dhere to [District] policies and administrative regulations” more generally. Id.,
at 30–31. As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”
He signed on that dotted line and he violated it. Just like fake Conservative Christians have violated all sorts of rights in recent years.
