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Kennedy v. Bremerton School District (U.S.)

A school district prohibited a high school football coach from privately praying at the fifty-yard line after games. After the coach continued his post-game prayers, the district fired him. The district cited its desire to avoid “endorsing” religion—a desire rooted in longstanding confusion about the meaning of the First Amendment’s Establishment Clause.

Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed an amicus brief in support of the coach, urging the Supreme Court to resolve that longstanding confusion by rejecting the so-called “Endorsement Test.” That test, the brief explains, draws a line between permissible private religious expression and impermissible government religious expression by asking whether a “reasonable observer” would think that the government is “endorsing” a religious message. But that question is untethered from the text of the First Amendment and is antithetical to our nation’s history and tradition. And, as the brief details, decades of experience demonstrate that the perceptions and misperceptions of judges and local officials too often dictate the outcome of this malleable inquiry, leading to suppression of private religious voices.

In 2022, the Supreme Court confirmed that the Establishment Clause neither mandates nor permits the government to suppress personal religious exercise. The Court clarified that it had “long ago abandoned” the endorsement test and instead instructed courts to interpret the Establishment Clause by reference to historical practices and understandings. Here, the school district’s “concerns about phantom constitutional violations” could not justify the suppression of the coach’s protected religious exercise.