Why the Supreme Court Got it Right
By Professor William Wagner
As a football coach, Mr. Kennedy’s job included coaching, mentoring, and serving as a role model for the student athletes. Kennedy v Bremerton Sch. Dist. No. 20-35222 (March 18, 2021) Pet. App. 3. In this regard, the foundation for Mr. Kennedy’s personal identity and belief system was his Christian faith. Id. After each game, these sincerely held religious beliefs led him to kneel at midfield and “offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Pet. App. 3-4. Sometimes Mr. Kennedy gave short motivational speeches through the lens of his personal identity and belief system. Id. at 4.
Players and members of the community sometimes voluntarily joined Mr. Kennedy at midfield. Id. at 4, 8-9. Even though nothing in the record shows that Mr. Kennedy treated anyone on the team more or less favorably if they participated or not, the government objected, ordering that his inspirational talks “must remain entirely secular in nature, so as to avoid alienation of any team member.” Id. at 6. Condemning Mr. Kennedy’s expression, as an improper endorsement of religion, it punished him. The government’s actions ultimately resulted in Mr. Kennedy no longer being allowed to coach the football team. Id. at 10-11.
The government acknowledges that it substantially interfered with Mr. Kennedy’s First Amendment liberty. It sought to justify its violation, however, arguing that allowing Mr. Kennedy to express himself through the lens of his belief system would violate the Establishment Clause. Id. at 17, 23. The question eventually made it to the U.S. Supreme Court. In a brief supporting Coach Kennedy, the Great Lakes Justice Center represented two-time Super Bowl champion and NFL Hall of Famer Darrell Green. In this brief, Mr. Green asked the Court to overturn Lemon v Kurtzman, 403 U.S. 602 (1971). The Court did so. Here is why the Court got it right.
In Resolving this Case and Controversy, the Court Applied the Plain Meaning of the Words in the Establishment Clause.
The Constitution is not just a set of guidelines. It is the framework on which the government and our legal system are constructed. Its words both create the Supreme Court’s authority and give it definition. Those words were written quite clearly, by highly qualified draftsmen, to express a simple meaning. Faithful adherence to those words is the touchstone for measuring the fulfillment of the Court’s sacred duty. Every Justice who takes the oath of office swears to uphold the Constitution as it is written, not as he or she would like it to be written. Discerning and applying the meaning that the Drafters embodied in the Constitution’s language is the Court’s high calling. The alternative of making those words mean what contemporary judges think they should now mean is the first step on the path to tyranny.
In this case, the appellate court recognized that the government substantially interfered with Coach Kennedy’s constitutionally protected First Amendment liberties. The appellate court, therefore, properly applied strict scrutiny to the government’s action. Kennedy v Bremerton Sch. Dist. No. 20-35222 (March 18, 2021) Pet. App. – 17 citing, Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112 (2001); Pet. App. – 23, citing, Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531-32 (1993). In doing so, however, the appellate court erroneously held that the government had a compelling interest justifying its substantial constitutional infringement. Pet. App – 17-25. To reach this conclusion, the appellate court incorrectly presupposed that not stopping Coach Kennedy from praying would violate the Establishment Clause. Id. Reasoning from its incorrect presupposition, the appellate court concluded that the government held a compelling interest in avoiding such a violation. Id.
The Supreme Court in this case recognized that resolution of the issue first required a correct understanding of what the Establishment Clause means. The Court has long sought to honor this duty by understanding those meanings in their historical context. In evaluating the appellate court’s interpretation of the Establishment Clause, we urged the Court to ask whether the interpretation comports with “what history reveals was the contemporaneous understanding of its guarantees.” See Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
As Chief Justice Burger observed in Marsh v. Chambers, “historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied….” 463 U.S. 783, 790 (1983). Reviewing the history of the Clause and its application, the Marsh Court held that a chaplain (employed by the government) did not violate the Establishment Clause by leading a legislature in prayer. Id. This Court in Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014), thereafter noted that
Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of Kennedy, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”).
Similarly, in Lee v. Weisman, 505 U.S. 577, 631 (1992), Justice Scalia, joined by three other justices, stated that in this search for truth, “the meaning of the Clause is to be determined by reference to historical practices and understandings.” Various Justices, in numerous cases, have, in detail, documented the history and tradition of public prayer in the United States. See, e.g., Lee, 505 U.S. at 633-636; Marsh, 463 U.S. at 786-788; Lynch, 465 U.S. at 674-678; Engel v. Vitale, 370 U.S. 421, 446-450 and n. 3 (1962) Stewart, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 100-103 (1985)
Moreover, Webster’s 1828 American Dictionary of the English Language defined respecting as “[r]egarding; having regard to; relating to,” and establishment as “[t]he act of establishing, founding, ratifying or ordaining.” Thus, historically, the plain meaning of the Establishment Clause is that government should not shackle the consciences of the people, for whose sake it exists, through a state religion. The experience of our Founders, which the Establishment Clause reflects and seeks to save us from, was aptly delineated by Justice Scalia, dissenting in Weisman, 505 U.S. at 640-41 (internal citations omitted):
The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. Thus, for example, in the colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.
Government acknowledgment and accommodation of religious expressions are considered time-honored practices that are a part of our nation’s heritage. See Marsh v. Chambers, 463 U.S. 783, 790 (1983) (upholding prayer in legislature); Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J. dissenting, joined by Rehnquist, CJ., White, J. and Thomas, J.); Allegheny Co. v. Greater Pittsburgh ACLU, 492 U.S. 573, 657, 670 (1989) (Kennedy J., dissenting, joined by Rehnquist J., Scalia J., and White J.).
The Establishment Clause must be construed in light of the ‘[g]overnment policies of accommodation, acknowledgment, and support for religion [that]are an accepted part of our political and cultural heritage.’… the meaning of the Clause is to be determined by reference to historical practices and understandings.’ It is said that ‘[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.’ Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J. dissenting, joined by Rehnquist, CJ., White, J. and Thomas, J., quoting Allegany Co. at 657, 670.
Properly understood, the “separation of church and state is not a limitation on churches or religion; it is a limit on the role of government with respect to churches and religious life in general.” Michael W. McConnell, Religion and its Relation to Limited Government, 34 Harv. J.L. & Pub. Pol. 943, 944 (2010).
Mr. Kennedy praying does not violate the Establishment Clause because it was not an action regarding or relating to the act of establishing or founding of a religion or state church. The praying coach does not subject the American citizenry to governance under a theocracy. Nor does it coerce the American citizenry, by force of law and penalty, to practice one official religion to the exclusion of all others. Mr. Kennedy’s praying does not, therefore, violate the Establishment Clause.
The Supreme Court Properly Abandoned the Endorsement Jurisprudence Previously used in Interpreting the Establishment Clause.
The government demanded that Mr. Kennedy’s post-game expression “must remain entirely secular in nature” Pet. App. — 6. The appellate court held, inter alia, that the government’s not stopping Mr. Kennedy from praying would violate the Establishment Clause, because not stopping it endorsed religion. Bremerton Sch. Dist., Pet. App. – 1-2;17-23. To understand the gravity of the government’s and appellate court’s error, it is necessary to understand its ancestorial jurisprudence. Indeed, the appellate court’s error is understandable given that the Supreme Court’s “religion clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long accepted constitutional traditions. Foremost among these has been the so-called Lemon test.” Weisman, 505 U.S. at 644 (Scalia, J., joined by three other Justices, dissenting). The test, often ignored but not yet overruled by the Supreme Court, had regularly received “well-earned criticism.” Id. at 644.
In Lemon, and its progeny relied upon by the appellate court, the Supreme Court replaced the rule prescribed by the Constitution – whether government action “established” a religion – with a test of its own creation, whether government action had a secular purpose or “endorsed” religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); See Pet. App. 17-23 citing Santa Fe at 308 quoting Wallace, 472 U.S., at 73, 76 (O’Connor, J., concurring in judgment) and Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 777 (1995) (O’Connor, J., concurring in part and concurring in judgment).
In Lemon, the Court contrived a three-part test, and then mandated that government action must satisfy all three elements to comport with the Establishment Clause:
First, the [government action] must have a secular [ ] purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the [government action] must not foster an excessive government entanglement with religion. Id. (internal citations omitted).
A few justices addressed the second prong of the Lemon test by requiring the government action to not even symbolically endorse religion. No agreement existed though, even among those justices, on how to decide when a government action symbolically endorsed religion. For example, Justice O’Connor, concurring in Wallace v. Jaffree stated:
[W]hether a government activity communicates endorsement of religion is not a question of simple historical fact. *** The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion].
Elsewhere she stated that: “the endorsement test necessarily focuses upon the perception of a reasonable, informed observer.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 773 (1995) (O’connor, J., concurring).
Citing Lemon’s progeny in Santa Fe Indep. Sch. Dist. V. Doe, 530 U.S. 290, 308 (2000), the appellate court relied on Justice O’Connor’s version of the endorsement test in the case at bar. Pet. App. 18-19:
Guided by Santa Fe, we ask whether an objective observer familiar with the history… would view BSD’s allowance of that activity as “stamped with [his or] her school’s seal of approval.” Id. at 308 quoting Wallace, 472 U.S., at 73, 76 (O’Connor, J., concurring in judgment) and Pinette, 515 U.S. at 777 (1995) (O’Connor, J., concurring in part and concurring in judgment).
Thus, from Lemon and its progeny evolved the endorsement analysis and application relied upon by the appellate court.
After a pugilistic presentation of the facts, the appellate court concluded that “an objective observer could reach no other conclusion than that the government endorsed Kennedy’s religious activity by not stopping the practice” App-21
In sum, there is no doubt that an objective observer, familiar with the history… would view his demonstrations as BSD’s endorsement of a particular faith. For that reason, BSD had adequate justification for its treatment of Kennedy. App-22-23
The appellate court’s reliance on Lemon’s progeny ignored the plain meaning of the words in the Clause. When the Drafters wrote the Establishment Clause, they well knew the meanings of both “establish” and “endorse.” They chose “establish” to express their intent. If they had meant “endorse,” there is no doubt they would have used that word. They did not. Lemon, and its progeny relied upon by the appellate court, should not have altered the meaning of the Establishment Clause, and the Supreme Court in the Coach Kennedy case corrected that error. The Court to reversed Lemon and its secular purpose/ endorsement progeny used by the appellate court.
 Noah Webster, Am. Dictionary Of The English Language, (1828), at http://webstersdictionary1828.com/Dictionary/respecting, (last visited Dec. 13, 2018).
 Noah Webster, Am. Dictionary Of The English Language, (1828), at http://webstersdictionary1828.com/Dictionary/establishment, (last visited Dec. 13, 2018).
 Compare Justice O’Connor’s measure with that of Justice Souter, who opined that he “attribute[s] these perceptions of the intelligent observer to the reasonable observer of Establishment Clause analysis…, where I believe that such reasonable perceptions matter.” Id. at 786. Likewise, Justice Stevens articulated a less informed “reasonable person” standard to determine whether an endorsement of religion exists when addressing the second prong in Lemon:
If a reasonable person could perceive a government endorsement of religion from a private display, then the State may not allow its property to be used as a forum for that display. No less stringent rule can adequately protect nonadherents from a well-grounded perception that their sovereign supports a faith to which they do not subscribe. Id. at 799.
 Moreover, when determining the constitutionality of a government action under Lemon, the content of the government action is irrelevant. Instead, the Lemon test requires that a judge make a subjective assessment as to whether the government actor had a secular purpose (i.e., the judge may indulge in relatively unconstrained speculation regarding another government official’s state of mind, and subjectively conclude whether the government actor had a secular purpose). If the judge feels there was not a secular motive, the judge must hold that the government action violates the Establishment Clause.