Reconstructing the Establishment Clause: Kennedy v. Bremerton and the Majority’s Endorsement of Historical Originalism
Published November 24, 2025 By Amar Kassa
In May 2025, Senate Bill 10 was passed, requiring all public schools in the state of Texas to display the Ten Commandments in every classroom. Though blocked from going into effect September 1st by a federal district court injunction (1), Attorney General Ken Paxton has directed school districts outside of cities already involved in lawsuits against the bill – one of which being Houston – to comply. A rising tide of social conservatism may have galvanized public support for such a bill, but legally speaking, it has little precedent. Since the 1960s, the Supreme Court had consistently ruled that prayer in public schools was a violation of the Establishment Clause, which forbids the state from promoting religion over non-religion. That track record was broken when it came to Kennedy v. Bremerton School District (2022).
Joseph Kennedy was a Washington football coach who prayed on the field after games despite being repeatedly discouraged by his school district. By 2015, his contract was not renewed. Bremerton School District was concerned with maintaining neutrality, arguing that any reasonable observer would see Kennedy’s prayer as an implicit endorsement of Christianity on behalf of the school. When he escalated his case, both the lower district court and the 9th Circuit Court decided in favor of the school district. All this was reversed when SCOTUS ruled 6-3 in favor of Kennedy, finding that action taken against him as retaliation for public prayer infringed upon his right to freedom of expression.
For the majority opinion, Justice Gorsuch wrote that Kennedy cannot be penalized for “brief, quiet, personal religious observance” (3). On all three qualifications Gorsuch attributes to Kennedy’s actions in order to rationalize them under the Establishment Clause, he goes against Supreme Court precedent. The personal nature of Kennedy’s religion went out the window when he began to observe it in public after his games. Bremerton School District had previously negotiated with Kennedy to offer a private location to pray after games, or if he insisted on praying at the 50-yard line, to at least wait until the stadium had emptied (4). If it were truly a private observation, Kennedy should have had no problem waiting until the fans were gone; but he insisted on praying in front of an audience that, legally speaking, would associate his actions to those of his employer – Bremerton School District. Under the respondeat superior doctrine, the employer must be held liable for any wrongful acts a worker commits through the scope of their employment, and as established, Kennedy was still acting in his capacity as a coach and on the clock at the time of the prayers.
Since the 1971 ruling of Lemon v. Kurtzman, the Supreme Court has applied the Lemon Test to decide whether an action violates the Establishment Clause. It’s a three-pronged evaluation necessitating that an action have a secular purpose, neither inhabit nor advance religion, and avoid entanglement between church and state. As Bremerton is a public school district, they are subject to state and federal regulations against governmental entities taking actions that might advance religion, to which only private religious schools are exempt. Any action on Bremerton’s behalf to promote the practice of a religion – or failure to sanction such an action – constitutes the state entangling itself with religion, thus failing the Lemon Test. However, the Kennedy v. Bremerton decision abandoned stare decisis and was the case that caused the Supreme Court to formally abolish the Lemon Test; instead, deciding on Establishment Clause cases through an originalist legal framework based on “historical practices and understandings” (5). This pivot calls into question the court’s impartiality. With the United States’ social climate placing a growing prominence on family values and the return to moral tradition, it is concerning that decades of precedent can be disregarded in service of a conservative triumph. The legitimacy of the Supreme Court lies in its justices serving as oracles of the law, not propagators of the cultural zeitgeist.
Another defense used by Kennedy (and echoed by Gorsuch) to minimize the effect of his actions was that his prayers were brief, lasting a minute or less (6). The precedent was clear on this point as well; Wallace v. Jaffree (1985) had prohibited Alabama schools’ practice of silent prayer/meditation in classrooms that had also lasted just one minute, and were also silent. Although Kennedy often highlighted the voluntary nature of these public prayers with students, Wallace v. Jaffree had already found prayer in school unconstitutional even when an option was given for students to exempt, because of the stigma that agnostic students faced for exercising their right to do so (7). The Supreme Court justified the end of Alabama’s school-prayer practice because it enabled children to bully and exclude members of an outgroup, which in this case was non-Christians.
Gorsuch’s contention that Coach Kennedy’s prayers did not have undue influence on his players (8), then, would imply that the court holds adult authority figures to have less sway on children’s behavior than their peers. But in her dissent, Justice Sotomayor points out that “students look up to their teachers and coaches as role models…and depend on [their] approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation, to additional support in college athletic recruiting” (9). Bremerton School District was backed in court by the advocacy group Americans United for Separation of Church and State, who also stressed the implicit coercion that an authority figure’s actions would have on impressionable youth (10). And though it had already been discontinued – also upon district request – by the time of his contract termination, students would remember Kennedy’s more severe “school tradition of locker-room prayers and his postgame religious talks to students” (11). The Supreme Court rewarded not a man who is passionate about practicing his religion, but one who repeatedly tests and oversteps his boundaries with minors.
Any authority figure wields an intangible influence over their subjects; therefore it is not enough that public prayer be voluntary, but that it be restricted. In lieu of an explicit ban, students’ safeguards from the promotion of religion in the public school environment are effectively eliminated. It stood to reason that the Supreme Court understood this concept for a long time, which raises the question of what has changed to walk it back. While the court typically consists of a 5-4 slight majority in either direction of liberal and conservative judges, it was at the time of this decision (and still is) a 6-3 supermajority in favor of conservatives. In this political climate, the court may find itself in pursuit of ‘culture war’ victories, not a stronger understanding of the law. By weakening the necessary separation of church and state, the Supreme Court has opened the floodgates to pieces of legislation such as the one being debated in Texas now. The Lemon Test had been an establishment clause watchdog, and the conservative advocacy groups who celebrate its removal are effectively ushering in a theocracy. If the First Amendment’s fundamental guarantee of freedom both for and from religion is being diminished, its promises of freedom of protest, or even speech, may be soon to follow. The Kennedy decision isn’t only an aberration from the norm, but a warning for the direction of the country.
ACLU of Texas. “Federal Court Temporarily Blocks Texas Law Requiring Ten Commandments in Every Public School Classroom.” American Civil Liberties Union, August 20, 2025, https://www.aclu.org/press-releases/federal-court-temporarily-blocks-texas-law-requiring-ten-commandments-in-every-public-school-classroom.
Dwyer, Devin. “Public school coach asks Supreme Court to OK post-game prayers.” ABC News, April 25, 2022, https://abcnews.go.com/Politics/public-school-coach-asks-supreme-court-post-game/story.
Kennedy v. Bremerton School District, 597 U.S. 507 (2022), https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf.
“School District Did Not Violate Constitution Or Title VII In Football Coach Prayer Case.” LCW Legal, April 27, 2021, https://www.lcwlegal.com/news/school-district-did-not-violate-constitution-or-title-vii-in-football-coach-prayer-case-2.
Pachon, Daniela Cecilia. “Resolving Establishment Clause Issues Is No Longer "Easy-Peasy, Lemon-Squeezy".” St. Thomas Law Review, 2023, https://scholarship.stu.edu/cgi/viewcontent.cgi?article=1070&context=stlr#:~:.
“Case Timeline: Coach Joe Kennedy.” First Liberty, https://firstliberty.org/coachkennedy-case-timeline/.
Wallace v Jaffree, 472 U.S. 38 (1985), https://supreme.justia.com/cases/federal/us/472/38/.
Kennedy v. Bremerton School District, 597 U.S. 507 (2022), https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf.
Kennedy v. Bremerton School District, 597 U.S. 21-418 (2022) (Sotomayor, S., dissenting)
Dwyer, Devin. “Public school coach asks Supreme Court to OK post-game prayers.” ABC News, April 25, 2022, https://abcnews.go.com/Politics/public-school-coach-asks-supreme-court-post-game/story.
Schweitzer, Dan. “Opinion: Kennedy v. Bremerton School District, 21-418.” National Association of Attorneys General, July 7, 2022, https://www.naag.org/attorney-general-journal/opinion-kennedy-v-bremerton-school-district-21-418/.