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The United States Supreme Court is set to reverse the ban on prayer in public schools with a decision in the case of Kennedy v. Bremerton as the justices release their final concurrences and dissents by the end of the month.
Kennedy v. Bremerton is especially of interest because it comes on the 60th anniversary of another case that banned organized prayers in schools and set off a firestorm of debate over the power of government to regulate our personal lives.
In 1962, Steven Engel, the father of a student enrolled at New Hyde Park Schools in New York, filed a petition against the public school district objecting to a school board-mandated a prayer said each morning as classes began. The prayer was arguably vague, but stated, “Almighty God, we acknowledge our dependence upon thee and beg thy blessings upon us, our parents, our teachers, and our country.” Students were given the option not to participate, and could even leave the room if they wished, but it was still perceived as a violation of the Establishment Clause in the Constitution.
The First Amendment clearly states “Congress shall make no laws respecting an established religion” and this was emphasized by the addition of the 14th Amendment which states all federal laws apply to and supersede individual state codes. However, in the early 1960s, a Gallup poll indicated that 79 percent of Americans supported the right of prayer in public school facilities.
Engel’s attorney won the case on a local level. The school board appealed and the case advanced to the Circuit Court in New York, which upheld the decision and banned the practice of organized morning prayers in public schools within the state. Attorneys for the school district then petitioned the U.S. Supreme Court to hear the case and it was accepted by Chief Justice Earl Warren.
Arguments began on April 3 with Justice Hugo Black most vigorously questioning the assertions of the school board and Justice John Paul Stevens challenging Engel’s attorneys.
On June 25, it was announced that the court had decided, in a six to one decision, that organized prayer in public schools was a violation of the Establishment Clause and that by invoking a morning prayer, the school district was, in legal terms, coercing the student body to participate in a religious activity. It is a precedent that has been the law of the land ever since.
Today, Kennedy v. Bremerton looks to change that. For many years, Joseph Kennedy, a high school football coach in Bremerton, Wash., would say a prayer on the 50 yard line after a game. Most of the players were off celebrating a win or bemoaning a loss in the end zone, but a few joined him.
Kennedy would hold a helmet from each team in his hands and upstretch his arms to the sky, offer what he called a thanksgiving, then join the rest of his team. It was a weekly ritual that lasted about 15 seconds.
Six years ago, some parents objected to the ritual, claiming it made their children feel obligated to pray for fear of retaliation in playing time if they did not participate. The school district in Bremerton on Oct. 14, then issued a statement to Kennedy saying “you are free to engage in religious activity, including prayer, but it has to be physically separate from student activity.”
Kennedy went public with the directive, and after the next game, as he knelt in prayer on the 50-yard line, hundreds of supporters stormed the field and joined him in an affirmation of support. Kennedy was told by the school district he must cease and desist the postgame ritual, again because it might cause some of the students to feel coerced into religion. He responded “I will not stop my prayer because there was some kids around me” and was relieved of his duties as coach and as an employee of the district.
The U.S. District Court sided with the school and the 9th Circuit Court upheld the ruling, leaving only the Supreme Court as a final option. Chief Justice John Roberts and the justices accepted the case, and oral arguments were heard last month on April 25. In them, Paul Clement, attorney for Kennedy, argued since the buzzer had sounded, ending the game, and since no students were required to kneel with him, Kennedy was not acting as a public employee, but rather as a private citizen exercising his right to acknowledge a deity. “Because it’s not part of his job, it’s private religious activity that’s protected by the Free Exercise Clause,” Clement pleaded.
Richard Katskee, attorney for the school district, disagreed. He told the Justices that a few of the students had felt compelled to kneel with him or they would lose their playing time. “Some of the kids were just 14 years old,” he asserted, “Mr. Kennedy’s actions pressured them to pray and also divided the coaching staff and sparked vitriol against school officials.”
Justice Sonia Sotomayor diminished the premise that Kennedy was praying on his own time, arguing Kennedy’s responsibilities extended beyond the end of the game. “He had an obligation to remain behind for two hours after the game finished,” she contended, “that was part of his duties to make sure that he escorted all the players off the field … he had a duty to do a post game wrap up and he had a duty to clean up and make sure that the gym was left in good order.”
Justice Clarence Thomas, however, discounted that, saying, in regard to the prayer ritual, “We know it’s not a part of his job, especially since the school district didn’t know anything about it initially and objected to it, so it can’t be a part of his job.”
By the end of the arguments, Justice Roberts added his own assessment. “He (Kennedy) was not speaking to the players, he’s praying to God,” Roberts said.
How many justices agree with him will be known when the court delivers its final decisions of the season.
David V. Wendell is a Marion historian, author and special events coordinator specializing in American history.