Kennedy v. Bremerton School District: A Touchdown and A Victory for Establishment Clause Jurisprudence

Volume 31 Issue 1 Article 2 2-12-2024 Kennedy v. Bremerton School District: A Touchdown and A Victory for Establishment Clause Jurisprudence Aislinn Comiskey Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Constitutional Law Commons, and the Entertainment, Arts, and Sports Law Commons Recommended Citation Aislinn Comiskey, Kennedy v. Bremerton School District: A Touchdown and A Victory for Establishment Clause Jurisprudence, 31 Jeffrey S. Moorad Sports L.J. 67 (2024). Available at: https://digitalcommons.law.villanova.edu/mslj/vol31/iss1/2 This Casenote is brought to you for free and open access by the Journals at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. KENNEDY V. BREMERTON SCHOOL DISTRICT: A TOUCHDOWN AND A VICTORY FOR ESTABLISHMENT CLAUSE JURISPRUDENCE I. P re - game I ntroductions Prayer has traditionally been a part of American life, including sports.1 American football specifically has been known to have a robust history and tradition involving religious practices.2 This continues today.3 However, in the 1960s, legal challenges began to mount against religious practices in schools and other public places.4 Over the next few decades, the Supreme Court decided many cases that limited these practices, while trying to strike a balance between the Free Speech, Free Exercise, and Establishment Clauses of the 1. See Alex R. Utrup, A Coach’s Fight to Pray: A Public High School Coach’s Case Involving the First Amendment, 31 Marq. Sports L. Rev. 325, 328–330 (2021) (discussing history of First Amendment and public religious practice in America, including that prayer in schools in United States was normal prior to 1960s and that school sports often involve prayers by player and coaches); see also John J. Miller, Khalil Lee, & Christina L. L. Martin, An Analysis of Interscholastic Athletic Directors’ Religious Values and Practices on Pregame Prayer in Southeastern United States: A Case Study, 23 J. Legal Aspects Sport 91, 91 (2013) (stating school sports in United States have been strongly associated with Christian practices for many years). 2. See Miller et al., supra note 1, at 92 (providing data showing pre-game prayer is practiced publicly at American football games more than any other sport). The study cited by the authors found that forty percent of respondents claimed football games began with prayer and found that more than fifty percent of football coaches participated in prayer with their players. See id. at 92–94 (reporting survey and study results regarding prayer in certain types of sports). 3. See Nicole Yang, After Every Patriots Game, Players from Both Teams Gather to Pray. Here’s What Happens Inside the Circle, Bos. Globe (Dec. 14, 2020, 8:51 AM), https:// www.bostonglobe.com/2020/12/12/sports/postgame-prayer-circle-has-takenextra-meaning-patriots-during-tumultuous-season/ [https://perma.cc/TXR8-JXKR] (reporting NFL players continued to pray after football games in 2020). 4. See Utrup, supra note 1, at 328 (explaining legal events occurred in 1960s in regard to prayer in public schools, specifically discussing Engel v. Vitale, 370 U.S. 421 (1962)). In Engel, a New York school district required a specific prayer to be said aloud in the classroom on every school day. See id. (reciting specifics of school prayer that was basis of Engel). Parents of ten students brought a legal challenge against the practice as unconstitutional, and the Supreme Court held the practice inconsistent with the Establishment Clause. See id. (discussing factual details of Engel and holding). After Engel, the Court decided two more school prayer cases, Sch. Dis. of Abington Twp. v. Schempp and Wallace v. Jaffree, each time striking down religious exercises or prayers occurring in public schools. See id. at 329 (describing school prayer cases where Supreme Court decided public school prayer was unconstitutional). (67) 68 J effrey S. M oorad S ports L aw J ourna l [Vol. 31: p. 67 First Amendment.5 Despite these decisions, confusion continued to exist around religious expression and First Amendment rights.6 Multiple circuit splits developed over time, specifically in Establishment Clause cases, that required the Supreme Court to intervene often.7 Even after resolving these splits, courts and schools made conflicting decisions in similar scenarios.8 The Court’s recent decision in Kennedy v. Bremerton Sch. Dist.9 addressed some of the uncertainty that was created by prior opinions.10 Specifically, it abandoned the Lemon test in Establishment Clause cases and allowed for religious expression during public sporting events by individuals acting in a private capacity.11 This Casenote articulates the Supreme Court’s recent holding in Kennedy v. Bremerton Sch. Dist.12 It first lays out the background of legal precedent, statutes, and history that played a role in Kennedy.13 Then, it analyzes and discusses the arguments and potential legal impact of the Kennedy decision.14 Finally, this Casenote examines the potential future effects of the holding in Kennedy.15 5. See id. at 329–31 (examining Supreme Court Cases from 1960s-2000s dealing with First Amendment issues involving public prayer). The author specifically discusses in detail Wallace v. Jeffree, Sch. Dist. Of Abbington, Twp. v. Schempp, and Santa Fe Indp. Sch. Dist. v. Doe. See id. (explaining background of cases on prayer in public schools). In the analysis, the author explains that the Wallace Court struck down a law allowing teachers to hold a minute of silence during school for prayer or meditation. See id. at 328 (providing specific facts of Wallace and Court’s decision). 6. See Lee Green, Prayer, Religion-Related Activities at School Athletics Events, Nat’l Fed’n State High Sch. Ass’ns (Apr. 13, 2016), https://www.nfhs.org/articles/ prayer-religion-related-activities-at-school-athletics-events/ [https://perma.cc/ 5G8H-7ACH] (describing confusion among U.S. high schools and involved parties regarding prayer in school settings before and during 2016). 7. See Karthik Ravishankar, The Establishment Clause’s Hydra: The Lemon Test in the Circuit Courts, 41 Univ. Dayton L. Rev. 262, 266–94 (2016) (discussing application of Lemon test in Establishment Clause cases about legislative prayer, school prayer, limited public forums, school funding, religious displays, and Ten Commandments where circuit splits eventually developed, in some cases, multiple times). 8. See id. at 275–77 (reporting school prayer Establishment Clause circuit splits, resolved by Lee v. Weisman decision and later, by Santa Fe decision, followed by continued confusion about test which applied to similar cases among lower courts). 9. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022). 10. See id. at 2416 (dec (...truncated)