Major Supreme Court Decisions: Kennedy v. Bremerton Sch. Dist.

I turned 35 on Saturday. To celebrate my birthday, my father-in-law took me to watch Top Gun: Maverick. My wife and I also rewatched the original Top Gun, because I had not seen it in years. Watching Tom Cruise pull off insane flying maneuvers and blow the bad guys out of the sky in both movies was pretty epic. 

If there was one Supreme Court decision this term that was the legal equivalent of watching Maverick work in Top Gun 1 and 2, it was watching Justice Gorsuch work in Kennedy v. Bremerton School District. That is not to say that Kennedy was the most important decision of the term; I think it was Dobbs, which I’ll talk about tomorrow. But in terms of the fast and epic legal maneuvering and watching him blow one liberal talking point up after another, Gorsuch gets the Maverick award for his majority opinion in Kennedy. 

I set out the basic facts and key holdings in my article for 1819 News here. Gorsuch successfully wrote a 6-3 opinion that trashed Lemon and the endorsement test and caused the Court to return to a historical understanding of the Establishment Clause. That’s half of what religious-liberty advocates have been fighting for over the last 50 years! The other half concerns the Free Exercise Clause, but successfully restoring 1 of 2 Religion Clauses to their original meaning is huge. 

But rather than rewriting my 1819 op-ed, let me take a moment to geek out here over Gorsuch’s legal dogfighting in this opinion. 

First, Gorsuch led his analysis by arguing that the Free Exercise and Free Speech Clauses provide double protection for religious speech. Like Cruise flying through the valley in Maverick, Gorsuch just flew the Court through one of the “hybrid-rights” exceptions noted in Employment Division v. Smith. Now instead of wondering whether Free Speech provides extra protection for Free Exercise, we know it for sure.

After that, he wrote, “The [Free Exercise] Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of (or abstention from) physical acts.” Liberals have long argued that Free Exercise protects your right to believe what you want but not necessarily act on those beliefs. Gorsuch just blew that argument up. 

Moving on, in footnote 1, he held that in cases of hostility towards religion like Masterpiece Cakeshop, the inquiry ends where such hostility is displayed. Thanks to Justice Kennedy’s feelings-based approach to judicial opinion-writing, we were never really sure whether it was an automatic win for religious freedom once you got the government to show such hostility. The answer now is yes.

In the same footnote, he noted that Fulton v. City of Philadelphia has been heavily criticized but can’t be reconsidered now because nobody asked them too. Still, he just got Roberts, Kavanaugh, and Barrett to beat up on their own decision to keep Smith for now, making the case more compelling for overruling Smith.

He then showed that because the school district allowed other coaches to briefly engage in personal activity immediately after the game (like check a text, make a phone call, confer with family, or the like), Coach Kennedy was likewise allowed to pray during that brief personal time. That’s how he flew through Lukumi’s test for free-exercise violations and Garcetti’s government-speech test, meaning that unless the government could justify its decisions, Coach Kennedy wins. 

In Top Gun: Maverick, the success of the mission depended on “two miracles.” Same thing in this case. Establishing that the government violated the Free Exercise and Free Speech Clauses was miracle #1. 

So when it came the government’s turn to justify how it treated Kennedy, it went to the defense that government schools have deployed for at least 50 years: the Lemon/endorsement test. Getting past that had to be miracle #2. 

The first obstacle to getting there was the longstanding idea that there was some tension between the Establishment Clause on the one hand and the Free Exercise Clause on the other. “But how could that be?” Gorsuch asked. “A natural reading of that sentence would seem to suggest that the Clauses have ‘complementary’ purposes, not warring ones ….” Boom goes the MiG!

Getting to the Lemon and endorsement tests specifically, Gorsuch wrote, “What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.” That’s it! It’s official. Lemon and the endorsement test are dead, and the Supreme Court finally said so!

So what replaces it? “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings’ that are in ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” That’s exactly what originalists have been arguing for a long time! So not only did he blow up Lemon and the endorsement test, but he replaced it with the right test!

To do so, he had to navigate a field of incoherent and self-contradicting precedents, like Cruise evading SAM rockets and enemy MiG fire at the same time in Maverick. Check out Part IV of the opinion to see what I’m talking about. But wow…he pulled it off! That’s miracle # 2!

He then flew through the evidence, which was hotly contested by the dissent, to show that there was no evidence of actual or subtle coercion in this case. By doing so, he brought the plane safely back to the carrier and gave Coach Kennedy the win he deserved. 

There are other noteworthy feats in this opinion, but this post is already getting long enough. Go read the opinion. It concluded with this epic line, “And in no world may concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” That may have some bearing on the Court’s approach to next year’s important case of 303 Creative LLC v. Elenis. In the contest between rights actually listed in the Constitution versus one invented by the judiciary, the ones in the Constitution should win. 

Now I realize that some may be disappointed in comparing Gorsuch to Maverick because of his terrible decision in 2019 in Bostock v. Clayton County. Make no mistake: I am not endorsing Bostock. He messed up badly in that opinion, just as Scalia did in Smith. But like Scalia, he is proving himself to be a heck of a defender of the Constitution in virtually all other matters. So, as with any Justice, we commend him when he’s right and oppose him when he’s wrong. 

In this case, he did a lot right. I think in this opinion, he earned himself the title of Ace. 

Well done, Justice Gorsuch! (If you ever read this, my apologies for my terrible photoshop skills!)