“In April,” Vincent Phillip Muñoz writes, “the Court heard oral arguments in Kennedy v. Bremerton School District, a case involving a football coach at a public high school who lost his job after repeatedly kneeling on the 50-yard line in post-game prayer.” Muñoz notes that school officials had good reason to believe that the coach’s conduct violated tests used by the Supreme Court to enforce the Constitution’s establishment clause. This case, he argues, presents an opportunity to overturn harmful and erroneous precedents regarding “what constitutes a prohibited establishment of religion.”
The Court’s “endorsement” test holds that state actors, including public-school officials, may not endorse religion. . . . A different establishment-clause precedent prohibits schools from “psychologically coercing” students to pray. That test, created by Justice Anthony Kennedy, led the Court to strike down nondenominational invocations and benedictions at high-school graduations (Lee v. Weisman, 1992). And the Court still has not thrown out Chief Justice Warren Burger’s “Lemon” test that requires the government act with a secular purpose, not advance religion, and also not “excessively entangle” itself with religion.
These long-established establishment-clause precedents all derive in one way or another from the Court’s original “wall of separation” decision in Everson v. Board of Education (1947). They also mean that, once school-district officials found out about Coach Kennedy’s prayers, they were all but obligated to try to stop it lest they face a lawsuit for “endorsing” religion, indirectly coercing students to pray, or improperly advancing religious belief.
Therein lies the first of several problems with the Court’s establishment-clause precedents. They effectively demand government hostility toward religion. If school district officials don’t act against religious activities and expressions, they will be sued by the ACLU, Americans United for Separation of Church and State, or some other like-minded progressive activist organization. The easiest way for administrators to avoid controversy is to simply keep religion off school grounds.