The Supreme Court Corrects a Seventy-Five-Year Distortion in Establishment Clause Jurisprudence

Abstract

In Kennedy v. Bremerton School District,1 the U.S. Supreme Court ruled that the Establishment Clause did not prohibit a high school football coach from offering a brief mid-field prayer at the conclusion of games. The Ninth Circuit had held that the coach’s free exercise rights had to yield to the Establishment Clause’s prohibition of conduct that might reflect a state endorsement of religion. In overturning the Ninth Circuit, the Supreme Court issued an historic and far-reaching ruling on the scope and nature of the Establishment Clause, providing the first truly clarifying decision in this area in the past seventy-five years. The Court held that the Establishment and Free Exercise Clauses were not in tension and that the Establishment Clause could not be used to limit the
Free Exercise Clause. Even more profoundly, the Court rejected the use of tests that over time had become hostile to religious liberty. Finally, the Court stated that it would decide future Establishment Clause cases by consulting the historical meaning of the Clause. This Article analyzes the future impact that the Kennedy decision will exert on Establishment Clause jurisprudence.