Three days after Dobbs, the Supreme Court rules 6-3 in Kennedy v. Bremerton School District that a public high school football coach has a First Amendment right to pray on the 50-yard line after games. Justice Gorsuch's majority opinion effectively abandons the Lemon v. Kurtzman (1971) test that had governed Establishment Clause cases for 51 years, replacing it with a "historical practices and understandings" test that makes government endorsement of religion far harder to challenge.
Joseph Kennedy, a Bremerton, Washington high school football coach, began praying at midfield after games in 2008. Over time, players joined. The school district, advised that the practice could violate the Establishment Clause, asked Kennedy to pray privately. Kennedy refused, contacted First Liberty Institute (a Christian legal advocacy organization), and the case became a vehicle for rewriting church-state law.
The majority opinion is notable for what Justice Sotomayor's dissent calls a misrepresentation of the facts: the majority describes Kennedy's prayer as "quiet" and "personal," while photographic evidence shows him kneeling at midfield surrounded by players, coaches, and state legislators who had traveled to join the spectacle. The gap between the opinion's characterization and the factual record becomes itself a measure of how far the Court's conservative majority is willing to stretch to achieve the desired legal outcome.
Kennedy v. Bremerton, coming three days after Dobbs, demonstrates the breadth of the judicial capture project. The Federalist Society's Supreme Court majority is not pursuing a single issue but systematically dismantling the constitutional framework separating church and state. The Lemon test — which asked whether government action had a secular purpose, whether its primary effect advanced or inhibited religion, and whether it fostered excessive government entanglement with religion — provided a structured framework for preventing government endorsement of religion. Its replacement with a vague "historical practices" standard effectively removes the constraint, since American history is replete with government endorsement of Protestant Christianity.