August 4, 2022
Muslim Advocates Q&A: What the Supreme Court’s School Prayer Decision Means for American Muslims
Answer: Kennedy v. Bremerton School District is about a high school football coach, Joseph Kennedy, who consistently engaged in public acts of prayer midfield at the conclusion of football games in which his team competed. Upon learning of his public prayer, which often included students, members of the community and the opposing team, the Bremerton School District advised Coach Kennedy to halt this practice. The District did so because the practice could subject the District to liability for violating the Establishment Clause. The Establishment Clause is the clause in the First Amendment that prohibits the government from establishing religion, especially in spaces like public schools. When Coach Kennedy refused to comply with the School District’s mandate and accept their proposed accommodations to permit his prayer in private, he was placed on paid administrative leave. Subsequently, he commenced a lawsuit alleging that the School District’s actions violated his rights under the Free Speech and Free Exercise clauses of the First Amendment.
Answer: After learning of Coach Kennedy’s public post-game prayers at the 50-yard line, the school district notified him in writing that any religious activity on his part must be “‘nondemonstrative (i.e., not outwardly discernible as religious activity)’ if ‘students are also engaged in religious conduct’ in order to ‘avoid the perception of endorsement.’ Kennedy v. Bremerton, 597 U.S. ___, 3 (2022). The School District further advised Coach Kennedy that any such activities must be conducted away from student activities and separate from students. Id. at 6 (Sotomayer, J., dissenting). 
This guidance came after the school district’s inquiry into Coach Kennedy’s post-game prayer. It was learned that after shaking the hands of the opposing team, Coach Kennedy would kneel on the 50-yard line and pray. Id. at 4. At times he prayed alone, but he was often joined by a majority of his team as well as others, numbers varying at games. Id.
The school district also made efforts to accommodate Coach Kennedy’s request to pray by explaining that he was free to return to the stadium when he was off duty to pray at the 50-yard line or to pray while on duty provided it did not interfere with his duties or suggest the District’s endorsement of religion. Id. at P. 8. To facilitate these discussions, the administration also invited Coach Kennedy to collaboratively engage in discussions on ways to accommodate his desire to pray. Id. at 9-10.
Coach Kennedy refused any invitations to discuss accommodations with the school district and instead sought media attention to promote his stance that “he would only accept demonstrative prayer on the 50-yard line immediately after games.” Id. Due to the media attention Coach Kennedy garnered, community members, politicians and students rushed the field and knocked people over in order to engage in these post-game prayers. Id.
As this was unfolding, parents raised concerns with the administration that their children felt pressured to participate in Coach Kennedy’s post-game prayers because they did not want to risk losing playing time or being separated from the team. Id. at 11.
Ultimately, Coach Kennedy’s last employee annual review set forth that he should not be rehired due to a “fail[ure] to follow district policy” and because he “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district”, and “failed to supervise student-athletes after games due to his interactions with media and community members.” Id.
Answer: At the outset, it is important to dismantle the various representations that have been made about this decision. This case is not about private prayers performed by students at school. Nor is it about the coach praying privately and silently on school grounds. In reality, it’s about the coach, an authoritative figure, inviting (some said “coercing”) students to pray with him—an action that made some students feel pressured to participate. In order to describe the layered potential ramifications of this decision on religious liberty, we will break this answer into three sections.
a. Position of Authority Pressures Students
Importantly in this case, students were concerned that not joining the coach in public prayer could negatively affect their playing time or their coach’s opinion of them. The district court, which was the trial court for this case, found that players reported “feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.” Kennedy v. Bremerton School District, 597 U.S. ___, (2022) (Sotomayor, S., dissenting).
This Court has recognized that students face immense social pressure. Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this 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.
Id. at 17.
After the issues with Kennedy arose, several parents reached out to the School District complaining that their children had participated in Kennedy’s prayers solely to avoid separating themselves from the rest of the team. No students appeared to pray on the field after Kennedy’s suspension.
Id. at 11.
No students should ever be made to feel excluded, whether it’s in the classroom or on the football field, because they don’t share the religious beliefs of their coaches or teachers. The Bremerton School District understood this and raised concerns that Kennedy may have violated the Establishment Clause.
Thus, this decision is actually about officials in positions of authority conducting prayers at school events, on school grounds and inviting others to join them. We know that public schools are meant to serve all students. Because of today’s decision, many families across the country will feel unwelcome in their public school classrooms, football fields and graduation ceremonies because they aren’t the “right” religion. This is about your child feeling potentially alienated if they don’t participate in their teacher’s or coach’s school prayer.
b. Religious Accommodations
We also must remember that permitting Christian prayer is not an automatic pass for permitting Muslim prayer. Nor is this case about the lack of religious accommodations. The school district repeatedly offered Coach Kennedy time and space to have personal prayers before and after games, in any way that would still ensure that students did not feel coerced to join his prayer to secure playing time or maintain relationships on the team. The district emphasized that it was happy to accommodate Kennedy’s desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement.
Stressing that ‘[d]evelopment of accommodations is an interactive process,’ the school District invited Kennedy to reach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others…. Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50- yard line immediately after games.”
Id. at 10.
Kennedy thus refused to cooperate in finding an accommodation that would be acceptable to him. He was not satisfied with praying privately—he insisted that he use the school’s students and football players as a participatory audience for his religious activities.
Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. The district allowed private prayers by public officials to be conducted on school grounds. This is very similar to an individual praying salat privately or a group of Muslims praying salat together privately and not as part of a school event. This case went further than that, however, with the Supreme Court ruling in favor of a Coach who engaged in a public, communicative display of his personal religious beliefs. That display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.
c. Separation of Church and State
The Kennedy decision continues to erase church-state separation, the principle that ensures that the government does not tell us how to practice our religion. Without church-state separation, religious freedom decreases for people of minority religions, including Muslims, because the state can act in ways that prioritize one religion over all others.
Answer: We don’t know. The reality is that the Muslims are a minority religious group in the United States, and the smallest religious minority groups are the least likely to benefit from judicial protection, despite the claim inherent in the counter majoritarian account that the courts should be most active in protecting the religious liberties of the least popular religious groups. When it comes to legal wins for religious accommodations, “the pattern is that sometimes Christians win but non-Christians never do.”  So, with that background in mind, we cannot be hopeful. Courts do not have a positive track record deciding cases where Muslims are involved.  Nevertheless, Muslim Advocates will continue to support the rights of Muslims to freely exercise their religion without prohibition.
Answer: This case is part of a series of decisions by the Supreme Court that embolden protections for at least some religious groups. Because those protections are being instituted in public places, such as the public school in this case, the Supreme Court is essentially eroding the separation between the church and state. This can be dangerous for Muslims because we live in a Christian majoritarian country. Nevertheless, Muslims can utilize these religious liberty protections as well. For example, school districts will have less grounds to object to prayers by Muslim teachers in the classroom after this decision—granted of course that such prayer does not disrupt the class. Similarly, schools will have less grounds to deny Muslim students the permission to pray in congregation in an empty class or on the field, absent a disruption. Muslims can raise the Kennedy v. Bremerton School District case if their employers or schools attempt to restrict their Islamic practices. If you are a Muslim public employee who has been disciplined for praying at your workplace, contact us and we will do our best to help you.
To be clear, we do not advise any school district employee, or other public official, to invite children in their care to pray together. The coercion that the court ignored in Kennedy is real, and no public employees should use their position to “invite” prayer at school. Further, a court is less likely to tolerate coercive exercises of authority by Muslims than the Supreme Court did for the Christian coach in Kennedy.
Answer: Political coalition building is a critical tool for Muslims.
- Like the families of students in Kennedy, Muslim community members can register complaints of religious activities taking place on school grounds during school events with public school districts and superintendents.
- Reach out to Muslim Advocates to register any complaints about your students feeling pressured to participate in school prayer events.
- Reach out to your local masajid communities to understand what they’re doing locally in response to any state-sponsored religious activities taking place at schools.
- Build coalitions and grassroots groups to influence legislators and elected officials to protect the rights of minority religious groups
Among the more remarkable aspects of this decision is how it treated the established test for deciding whether the government has violated the Establishment Clause of the First Amendment. Known as the Lemon test after the case in which it was announced, this test required courts to assess whether a law challenged under the Establishment Clause had a secular purpose, whether its primary effect was to inhibit or advance religion, and whether it promoted excessive entanglement of government and religion. The test was further refined later to include a question of whether a reasonable observer of the government action in question would perceive it as an endorsement of religion.
This test has been debated since its inception so the court expressing concerns with it is not notable. What is notable, however, is that the court abruptly abandoned the Lemon test in Kennedy. It did not apply the normal stare decisis factors called for when overturning precedent. It did not even really explain why it thought Lemon ought to be abandoned. Rather, it chastised us for not recognizing that the court has, in fact, already abandoned Lemon. This is not true. The Supreme Court has never announced that Lemon was overturned or that a new test has taken its place.
Given that we are supposed to respect the court’s decisions regardless of personal opinions because they are ostensibly reasoned judgments, it is disturbing indeed that the court felt it acceptable to up-end decades of Establishment Clause law by boldly asserting it had already done so and we just missed it. There is a word for this: gaslighting.
In Lemon’s place, the court announced that Establishment Clause violations are to be shown by reference to “historical practices and understandings.” Pinning laws designed for the protection of religious minorities—an effort for which the Establishment Clause is essential—to historical understandings from the Founding is gravely dangerous for those minorities. After all, the promotion of Christian traditions and beliefs was perfectly acceptable government activity until very recently in U.S. history. It remains to be seen how lower courts will apply this new test now that they are freed from the constraints of Lemon and can impose their own reading of the historical record on their jurisdictions, but it is appropriate to be concerned.
Both in the substantive change to a historical test for Establishment Clause violations and in the way the court treats established precedent in this decision, the court has signaled its disinterest in policing the separation of church and state, a concept essential to a flourishing religious diversity upon which the Muslim community and all religious minorities rely.
Answer: In Kennedy and another case this term, Carson v. Makin, the court has fundamentally undermined existing Establishment Clause rules. In Carson, the court held that the state of Maine must use public funds to facilitate student attendance at religious schools. Both cases may seem like wins for religious liberty, but their implications for the Establishment Clause are not. While the Free Exercise Clause protects freedom to practice religion, the Establishment Clause prevents the government from imposing religion on us. Religious minorities depend on this lack of imposition to effectively exercise their religions in a country with a Christian majority. Religious minorities are best protected by a government that is strictly neutral towards religion while accommodating religious practice. The reality, despite what the court asserts, is that these principles come into conflict at schools. School staff have Free Exercise rights like the rest of us, but while they are working, they are state actors with a large amount of influence over their students. Decisions allowing teachers to pray during school events with mandatory attendance for students and forcing states to pay for religious education are both subtle ways in which the Supreme Court is weakening the Establishment Clause principles that limit government imposition of a particular religion. Religious minorities bear the cost of this shift and religious liberty is endangered, not by imposed irreligion, but imposed Christianity.
Muslim Advocates will closely monitor lower courts’ interpretations of Kennedy v. Bremerton to ensure Muslims’ rights to religious accommodations and free practice are protected and not infringed upon. Our monitoring will extend beyond the courts to ensure that Muslims are not excluded from participating in public school sports, extracurricular activities and/or academic matters because of their religious beliefs.
If you are denied the right to exercise your religious beliefs or feel excluded due to those beliefs, please contact us.
 The factual recitation of Coach Kennedy’s conduct scrutinized by the Court provided in this document was primarily taken from Justice Sotomayer’s dissent.
 Mark Tushnet, “Of Church and State and the Supreme Court”: Kurland Revisited, 1989 SUP. CT. REV. 373, 381.
 See Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts, 88 NOTRE DAME L. REV. 1371, 1374-75 (2013) (noting that Muslims experienced high rates of adverse outcomes before courts); see also John Wybraniec & Roger Finke, Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule, 40 J. FOR SCI. STUDY RELIGION 427, 427-44 (2001) (concluding based on empirical evidence that unpopular minority religious groups typically lose in the courts, whereas relatively more popular religious groups tend to win).