PATRICK M. GARRY
Professor, University of South Dakota School of Law; Senior Fellow, Center for Religion,
Culture & Democracy
In Kennedy v. Bremerton School District, the U.S. Supreme Court upheld a high school football coach’s right to offer a quiet individual prayer on the field at the conclusion of a football game. In its decision, the Court achieved perhaps the most monumental and far-reaching change in Establishment Clause jurisprudence since the 1947 decision in Everson v. Board of Education, where the Court pronounced the historically inaccurate but profoundly influential “wall of separation” metaphor that would shape First Amendment law for the next seventy-five years.
Following Everson and attempting to incorporate the wall of separation metaphor in its Establishment Clause jurisprudence, the Court went on the create a chaotic and unpredictable patchwork of constitutional tests. This patchwork sent the Establishment Clause into a confused muddle of contradictory mandates, with the result that the two religion clauses in the First Amendment—the Free Exercise Clause and the Establishment Clause—often conflicted with each other.
In this conflict, the Establishment Clause was used to limit freedoms protected by the Free Exercise Clause.
That was precisely the problem that came to the Court in Kennedy, with the school district censoring Coach Kennedy’s prayers because of a fear that not doing so would cause an Establishment Clause violation.
Read more here: https://mckinneylaw.iu.edu/ilr/pdf/vol56p59.pdf