Coach Joe Kennedy just wanted to say a silent prayer on the 50-yard line after each of his high school games, and he brought his Bible with him, thinking that free expression of speech — and especially expressions of religious freedom — was every American’s Constitutional right. He made prayer a practice whether or not his team won. But Kennedy ran into a wall called Lemon, a case that had been in place for 30 years or more as a test of free religious expression. The 1971 Lemon v. Kurtzman ruling ultimately held that Bibles were banned from schools, and so Kennedy was fired by the Bremerton School District.
A recent U.S. Supreme Court case reversed all that.
The ruling, written by Justice Neil Gorsuch, weighed and overturned Lemon’s test for how religious freedom is interpreted. Joe Kennedy — and anyone else — could freely exercise the right to religious freedom in a peaceful manner. Bibles may be taken onto campuses and other public places. Prayer was restored as an absolute Constitutional right instead of a questionable Constitutional right.
“Courageous judges have struck down many unconstitutional mandates. But are we willing to exercise our freedoms boldly again?”
Lemon had left discretion more or less in the hands of school administrators. For years after the 1971 decision, no school would challenge prayer because prayer was a well-established historical activity in things like sports. But over time, anti-religious school personnel used the Lemon test as a weapon to exclude Bible reading on campuses, in front of governmental facilities, in courthouses and so on. In the recent ruling, Justice Gorsuch noted that the Bremerton School District allowed prayer on the football field long before Joe Kennedy was hired and even for seven years after he became the coach. The district then weaponized the Constitution and fired Kennedy without pay. When Gorsuch and the assenting justices saw that school districts were overstepping their authority and breaking well-established traditions, the Court dispensed with the “Lemon Test,” specifically overruling it and returning to the old standard, which is now in effect again.
But ultimately, this case is about you and me. Will we enforce the victory handed to Americans in this ruling? Remember the famous and wise quip from Benjamin Franklin, who was approached by a woman who asked what our nation had become. Franklin is said to have answered, “A republic, ma’am — if you can keep it.” Here in Thousand Oaks and around the United States, we must keep the republic we formed. We do this by not tolerating the abridgment of any of our God-given, Constitution-enshrined freedoms. We must not allow complacency and tolerance to become pathways for the steady erosion of our freedoms.
What does it look like to “keep the republic” in real-time and everyday life? It can be as basic as refusing to comply with unconstitutional rules and mandates placed on our school systems, businesses and both public and private life. During the lockdowns, when unproven practices such as mask-wearing and “social distancing” were enforced by the County of Ventura and the State of California under threat of financial penalty, people gave away large swaths of rights wholesale, bowing to some novel conception of public safety. As of this day, courageous judges have struck down many of those unconstitutional mandates. But are we willing to exercise our freedoms boldly again? The Alliance Defending Freedom claims there are more than 6,000 cases in litigation that seek to restore many aspects of free expression. But will we put those freedoms into practice once they are regained?
So it is with Kennedy v. Bremerton School District. Bibles may again be brought onto public property and football fields, into schools and workplaces, and prayer is allowed everywhere in the U.S.A. This is a generational decision. But the Supreme Court cannot practically do the work of “keeping the republic” for us. We must bring Bibles back to public places, schools, sports events and elsewhere. We must pray aloud and publicly. History has shown how quickly rulers will snatch freedoms away if allowed to. In our beloved country, a constitutional system of checks and balances remains but is barely hanging on. To preserve it, we must actively “keep the republic” by saying no to further government overreach and exercising freedoms won — and won back.
Retired attorney George Nicoletti was admitted to the California State Bar and Federal Bar for the Central District of California in 1969. He served as Constitutional Law Professor at Glendale College of Law for 6 years and practiced law in Thousand Oaks starting in 1972. He was admitted to the U.S. District Court in Tucson, Arizona, in 1994.
