NANZAN REVIEW OF AMERICAN STUDIES
Volume 45 (2023): 33-42

The 2022 Law and Religion Cases:
Losing Faith in the United States Supreme Court
Frank S. RAVITCH ＊Introduction
Public approval of the United States Supreme Court is at an all-time low. In
July 2023, the Court’s approval was at 40 percent, with 56 percent disapproving,
the worst in modern U.S. history. A combination of factors have contributed tothis precipitous drop. The Court overturning Roe v Wade1 in Dobbs v. Jackson
Women’s Health Organization2 is a prominent factor in its plummeting approval,
as are the politicization of the judicial appointments process and the Court’s recent
well-publicized ethical dilemmas.
Even attorneys and Court observers, including this author, have begun to losefaith in the Court. This loss of faith in the Court by those who might be more
willing to give the Court the benefit of the doubt in normal times is ironicallyconnected, in part, to the way in which the Court has addressed cases involving
faith. In fact, for many law and religion scholars Dobbs was not even the mostquestionable decision in June 2022. That dishonor falls to a case called Kennedy v.
Bremerton School District.3 It had many of the features of Dobbs. It overturned
over fifty years of precedent that primarily helped those often outside thedominant power structure, but unlike Dobbs it did not even address the factors
relevant to overturning precedent and it essentially gaslighted readers on the facts
actually involved in the case.
Hypocrisy is a weak foundation for an institution. Yet, the story of the U.S.
Supreme Court in recent years is heavily impacted by hypocrisy. Not just the
hypocrisy of some of the justices themselves, but the hypocrisy of members of theUnited States Senate, most notably Mitch McConnell and his acolytes. It is hard
to separate the steep decline in public faith in the Court from the steep decline in＊Professor of Law and Walter H. Stowers Chair in Law and Religion, Director Kyoto Japan
Program, Michigan State University College of Law. Portions of this essay are adapted fromFrank S. Ravitch, In Defense of Moderation (book project work in progress) and Frank S.
Ravitch, Unprincipled, 61 Houston L. Rev. (forthcoming 2024).
1. Supreme Court, Gallup, July 3, 2023, https://news.gallup.com/poll/4732/supreme-court.
aspx.
2. 410 U.S. 113 (1973).
3. 597 U.S. ___, 142 S. Ct. 2228 (2022).

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the integrity of the Court’s gatekeepers in the Senate. McConnell did not start theincreased politicization of the appointments process. The increased politicization
can be seen at least as far back as the Bork hearings in the 1980s when the
Democrats were the ones doing the politicization. Yet the level of politicization atthat time pales in comparison to Mitch McConnell’s brazenly cynical powerplays.
One can draw a line from McConnell ’ s manipulation of the judicial
confirmation process to the Court ’ s controversial and legally questionabledecisions in Kennedy and Dobbs, among other decisions. This article tells thestory of an institution that has lost its way and whose stature―once high andmostly above the political fray―has fallen to new lows. The story’s central focus
is on the unprincipled decisions and behavior of the Court in recent years.
Prior to 2020 the Rehnquist Court and early Roberts Court certainly marked
significant, albeit often gradual, shifts in precedent. These shifts often alteredprecedent by the Stone, Vinson, Warren, and Burger Courts between 1941 and1986, which themselves shifted from earlier precedent. But the sheer scope of theunprincipled abandonment of precedent over a period of three years by the current
Court from 2020―2023 has eroded faith in the Court as a neutral arbiter of disputes
to a degree from which it may never recover.
Decisions on Faith and Loss of Faith in the Court
In June 2022 the United States Supreme Court decided two cases under the
religion clauses of the First Amendment to the United States Constitution. The
first case, Kennedy v. Bremerton School District,4 is ostensibly a free speech andfree exercise of religion case, but the Court used the case as an opportunity tooverturn over sixty years of precedent under the Establishment Clause. The
Kennedy case involved a football coach at a public high school who engaged inpublic prayer after games. The second case, Carson v. Makin,5 held that when agovernment entity opens funding opportunities to private entities the government
must include religious entities even if those entities proselytize, and even if thefunding is for tuition. Of the two cases, Kennedy is the more troubling opinion
because it mischaracterized the law, the facts, and reaches an issue that was
unnecessary to reach under the law and facts as set forth by the Court.
The majority opinion in Kennedy demonstrates the sort of unprincipledjurisprudence and decision making that has caused loss of faith in the Court evenamong many lawyers and others in the legal community.6 When one considers therecord in the case and the lower court decisions that accurately cited that record
when ruling against coach Kennedy, the dramatic mischaracterization of the facts
4. 597 U.S. ___, 142 S. Ct. 2228 (2022).
5. 597 U.S. ___, 142 S. Ct. 1987 (2022).
6. Ravitch, Unprincipled.

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by the Kennedy Court comes off as a form of intellectual gaslighting.7 But the
Kennedy Court did not only misstate the facts; it also mischaracterized several key
Establishment Clause precedents, failed to cite at least one on-point precedent thatwould have led to a different analysis, and overturned decades of law by reaching
an issue that was unnecessary to reach if the facts were as the majority claimed.8
The Kennedy decision was handed down the Monday after the Dobbs decision.
It is complete speculation, but perhaps this was to distract people from the
Kennedy decision that like Dobbs overturned decades of settled precedent.
Naturally Dobbs, which for the first time in U.S. history took a fundamental rightaway from people, vastly overshadowed the Kennedy decision. Similarly, the day
before Dobbs was handed down, the Court decided another case under the religion
clauses, Carson v. Makin.9 This case too pushed the boundaries of prior law. The
Carson decision abandoned a rule the Roberts Court had itself created in 2017 andreinforced in 2020.10 Both of the June 2022 religion decisions threaten to be
especially harmful to religious minorities and nonbelievers.
The facts in Kennedy v. Bremerton School District11 are where the questions
about the case begin. Simply put, the majority ignores important facts, distorts
others, and in a few situations brazenly mischaracterizes still others.12 Kennedy
moves far beyond the ordinary spinning of facts to what might colloquially bereferred to as “factual gaslighting.”
What were the facts in Kennedy as supported by the record, lower court
decisions, and the Kennedy dissent (which included pictures of what actually
happened)? And what were the facts as stated by the Kennedy majority?
The actual facts as supported by the record, lower courts, and the Kennedy
dissent are that Kennedy was an assistant coach for Bremerton High School
football team in Washington State and junior varsity head coach. He kneeled andprayed after football games at the fifty-yard line.13 For several years he prayedwith his own players and invited players and coaches from opposing teams andothers to pray with him in violation of school district policy.14 He also gave
religiously themed speeches along with the prayer at the fifty-yard line.15
Bremerton school district gave him notice that he must stop involving students
in the fifty-yard line prayers. The district suggested that he could come back to

7. Ibid.
8. Ibid.
9. 597 U.S. ___, 142 S. Ct. 1987 (2022).
10. Ibid. at 2001.
11. 597 U.S. ___, 142 S. Ct. 2407 (2022).
12. Ibid. at 2434 (Sotomayor, J., dissenting).
13. Ibid.
14. Ibid. at 2435―36.
15. Ibid. at 2436.

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the field after his coaching duties for the day were finished and pray on his own.16
Initially, that is what he did, but after a change of heart he began to again pray
immediately after games and he invited players and coaches from opposing teams
to pray with him.17 He held up helmets of both teams during these prayers. The
school board warned him again about his conduct. After that he announced to themedia that the school was telling him not to pray right after games and that hewould pray at the fifty-yard line after an upcoming game.18
The media coverage led to the district receiving threatening messages andemails.19 Moreover, his prayer caused a frenzy after a game. Some fans ran downfrom the stands to pray with him, trampling student band members in theprocess.20 After this, the district needed security for games.21 Moreover, school
employees and administrators were threatened, and the community became
divided.22
Despite this, Kennedy continued to demonstratively pray at the fifty-yard line
immediately following games. He was warned several more times by the school
district not to do so.23 The district suggested he could come back to the field after
his duties were finished to pray and offered to work with him on other possible
accommodations, but Kennedy explained that he would only accept demonstrative
prayer at the fifty-yard line right after the game.24 Perhaps if he had not turned theprayer into a media spectacle and agreed to quietly pray at the fifty-yard line aftergames it would have been constitutionally permissible under extant law for him to
do so, but given the attention he called to the prayer the district was concerned
about being sued for endorsing his prayer. They were also concerned that heflaunted school district rules and requests.25 He ignored repeated warnings by the
district and as a result was not rehired.26 He then sued.27
The first sentence of the Kennedy majority opinion sums up its characterizationof the facts, “Joseph Kennedy lost his job as a high school football coach because
he knelt at midfield after games to offer a quiet prayer of thanks.”28 The majority

16. Ibid. at 2436―38.
17. Ibid. at 2435, 2438.
18. Ibid. at 2437―39.
19. Ibid. at 2437.
20. Ibid.
21. Ibid. at 2438.
22. Ibid. at 2437, 2440.
23. Ibid. at 2436―40.
24. Ibid. at 2439.
25. Ibid. at 2436―40.
26. Ibid. at 2439―40.
27. Ibid. at 2440.
28. Ibid. at 2415 (majority opinion).

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claims that Kennedy only engaged in quiet prayer after games.29 The majority
notes that the district was worried about being sued by those who might think that
Kennedy was endorsing religion in his role as a school employee and therefore
targeted Kennedy because of his prayers.30 It suggests that it was the school’s
behavior of targeting Kennedy’s prayer that led to the media attention.31 The
majority also claims that Kennedy was willing to work with the district to find acompromise but instead the district disciplined him for his religious speech.32
If the facts were as the Kennedy majority claimed them to be there would havebeen no need for the Court to overturn years of Establishment Clause precedent.
Kennedy would have won the case under the Free Speech Clause and perhaps theFree Exercise Clause with little need to spend much time on the school board’s
Establishment Clause concerns.33 But, of course, the facts were not even close towhat the majority opinion suggests.
The Kennedy Court mischaracterized the law in addition to mischaracterizing
the facts. This includes the Court’s failure to cite highly relevant precedent. The
Court also mischaracterized the scope of precedent it used to support looking tohistory and tradition as the test under the Establishment Clause. As I write in aforthcoming article:
If one were to read nothing but the Kennedy majority opinion one would be forgiven
for thinking the Court had clearly moved to a history and tradition approach inevaluating Establishment Clause issues and had clearly abandoned the Lemon andendorsement approaches well before Kennedy was decided. Of course, as the dissent
points out this take on the state of the law under the Establishment Clause was
supported by an assortment of dissenting opinions, plurality opinions, and amischaracterization of the scope of a few cases.34

The Kennedy majority overturned decades of precedent when it abandoned
29. Ibid. at 2417―18.
30. Ibid. at 2416―17.
31. Ibid. at 2418, 2427.
32. Ibid. at 2429―30.
33. The Court has long held that government cannot discriminate based on content in alimited public forum, and that the Establishment Clause does not provide a valid compellinginterest for content discrimination unless there is evidence of government favoritism of
religion; see for example Good News Club v. Milford Central School, 533 U.S. 98 (2001)(holding that the Establishment Clause does not constitute a compelling interest when a school
opens a limited public forum for non-curriculum-related school clubs and excludes a religious
club from that forum). The outcome would be similar under a Garcetti analysis if only quiet
religious speech was excluded as the Kennedy Court counterfactually asserts. Garcetti v.
Ceballos, 547 U.S. 410 (2006).
34. Ravitch, Unprincipled, supra note 5 at ___ (forthcoming 2024).

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Lemon v. Kurtzman and the endorsement test.35 Yet the majority did not evenconsider the factors ordinarily analyzed when the Court abandons precedent andviolates stare decisis.36 In fact, the Kennedy opinion devotes a scant few lines to
its abandonment of prior precedent and its imposition of the history and tradition
test:
In place of Lemon and the endorsement test, this Court has instructed that theEstablishment Clause must be interpreted by “‘reference to historical practices andunderstandings.’” Town of Greece, 572 U.S., at 576; see also American Legion, 588
U.S., at ___ (plurality opinion) (slip op., at 25). “‘[T]he line’” that courts andgovernments “must draw between the permissible and the impermissible” has to“‘accor[d] with history and faithfully reflec[t] the understanding of the Founding
Fathers.’” Town of Greece, 572 U.S., at 577 (quoting School Dist. of Abington
Township v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring)). An
analysis focused on original meaning and history, this Court has stressed, has long
represented the rule rather than some “‘exception’” within the “Court’s
Establishment Clause jurisprudence.” 572 U.S., at 575; see American Legion, 588
U.S., at ___ (plurality opinion) (slip op., at 25); Torcaso v. Watkins, 367 U.S. 488,
490 (1961) (analyzing certain historical elements of religious establishments);
McGowan v. Maryland, 366 U.S. 420, 437―40 (1961) (analyzing Sunday closing
laws by looking to their “place . . . in the First Amendment’s history”); Walz v. Tax
Comm’n of City of New York, 397 U.S. 664, 680 (1970) (analyzing the “history anduninterrupted practice” of church tax exemptions). The District and the Ninth
Circuit erred by failing to heed this guidance.37

35. Kennedy, ___ U.S. ___, 142 U.S. at 2427―28. Lemon was decised in 1971, Lemon v.
Kurtzman, 403 U.S. 602 (1971), but the test was based on earlier cases. Abington Tp. v.
Schempp, 374 U.S. 203 (1983) (the case that used what later became the first two prongs of theLemon test); Walz v. Tax Commisioner , 397 U.S. 664 (1970) (discussing entanglement
concerns that became the third prong of the Lemon test). By 1989 the endorsement test had
been accepted by a majority of the justices on the Court. County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573 (1989); Ibid. at 623 (O’Connor, J., concurring) (concurrence
joined in part by Justices Brennan and Stevens in support of the endorsement approach); Ibid.
at 637 (Brennan, J., concurring in part and dissenting in part) (opinion joined by Justices
Marshall and Stevens, looking to message sent by displays). It is worth noting that theendorsement test has been applied both as a separate test and as a gloss on the first two prongsof the Lemon test. Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707, 713―14 (M.D.
Pa. 2005).
36. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015); see also Leegin Creative
Leather Products, Inc. v. PSKS, Inc., dba Kay’s Kloset, 551 U.S. 877, 908 (2007) (Breyer, J.,dissenting) (setting forth the various factors the Court has used over the years when addressing
questions of stare decisis).
37. Kennedy, ___ U.S. ___, 142 U.S. at 2428.

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Notice the prominent use of concurring and plurality opinions cited by the
majority in support of its massive shift in Establishment Clause analysis as well as
the failure to cite majority opinions such as McCreary County, Santa Fe, andAbington Township v. Schempp . 38 The Court also decontextualizes the few
majority opinions it does cite such as American Humanist, Torcaso v. Watkins, andWalz v. Tax Commissioners that ironically were the basis for the third prong of theLemon test that the Kennedy Court abandons.39
Moreover, the Court fails to reference the discussion of history in Everson v.
Bd. of Education,40 Engel v. Vitale,41 and other cases that viewed history from avery different vantage point than the Kennedy Court. Nor does the Court citethese cases in its discussion of the history and tradition approach.42 This seems an
odd oversight since the Kennedy Court already had to reach to find any cases
outside the legislative prayer and historical monuments context that could beargued to support its shift to the history and tradition approach. This is because
most of the cases the Court cites do not stand for the proposition that history andtradition is the approach in Establishment Clause cases.43 Yet, like the few
majority opinions the Court cites outside of the legislative prayer and historicalmonument contexts, Everson, Engel, and their progeny discuss history quite a bit.
Why ignore them? Perhaps the basis for their exclusion from the Kennedy opinion
is that the history and tradition they evaluate and apply is directly contrary to the
Kennedy Court’s preconceptions?
Carson v. Makin44 also mischaracterizes precedent. Carson, like Kennedy,
dramatically shifts the law. It too makes establishment of religion concerns, butalso the principle of federalism, beholden to the Free Exercise Clause. Yet,compared to Kennedy, Carson is less problematic because it generally states thefacts accurately and relies on precedent that actually says what it cites it for, albeit
quite recent precedent.45
In Carson, the Court dramatically expanded its 2020 decision in Espinoza v.
Department of Revenue,46 which was itself a massive expansion of prior law.47
38. McCreary County v. ACLU, 545 U.S. 844 (2005); Santa Fe Indep. School Dist. v. Doe,
530 U.S. 290 (2000).
39. See infra notes 119―56 and accompanying text.
40. 330 U.S. 1 (1947).
41. 370 U.S. 421 (1962).
42. Kennedy, 124 U.S. at 2427―28.
43. See infra notes 119―56 and accompanying text.
44. ___ U.S. ___, 142 S. Ct. 1987 (2022).
45. Carson relied heavily upon Espinoza v. Montana Dept. of Revenue, 591 U.S. ___, 140 S.
Ct. 2246 (2020), and Trinity Lutheran v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017).
46. 591 U.S. ___, 140 S. Ct. 2246 (2020).
47. Nelson Tebbe and Micah Schwartzman, The Politics of Proportionality 120 Michigan
Law Review 1307, 1332―33 (2022) (book review); Steven K. Green, The Supreme Court’s
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Espinoza held that a state could not deny access to public funding or tax
exemptions based on religious status, even pursuant to state constitutional
concerns.48 In doing so the Court adhered to a distinction between state refusal toprovide funding based on religious status versus religious use, with the former
being prohibited while the latter was not prohibited.
In Carson the Court went much further and abandoned the status/use
distinction. The Court held as a practical matter that Maine must provide
vouchers to religious schools if it does so for secular private schools.49 The
majority opinion minimizes the fact that religious schools could be included in
Maine’s funding program so long as they do not require students to engage inreligious exercises or education.50
Other than that minimization, however, the majority and dissent agree about
the facts. Maine is a heavily wooded and mountainous state with vast expanses
that have no major development or towns.51 As a result, Maine provides tuition
reimbursement for parents who send their kids to private schools in areas that do
not have adequate populations to support public schools.52 Maine provides thetuition reimbursement (often called vouchers) for any private school, whether
religious or secular, but schools accepting the tuition reimbursement could not
require students whose tuition was paid for with state funds to take religion classes
or engage in religious activities.53
In Carson, the Court abandoned the status/use distinction discussed above,54and held that Maine must fund religious schools that teach religion and even thosethat proselytize if it funds other private schools, unless Maine can meet strict
scrutiny.55 Despite Maine’s geographic situation and lack of public schools, insome areas the Court held that Maine’s interest in not funding religious education
and/or proselytization with tax dollars is an inadequate interest to justify excluding
religious schools from the tuition reimbursement program.56
Therefore, from June 2022 on, to avoid violating the Free Exercise Clause,states must include religious schools (including those that proselytize and directly
Ahistorical Religion Clause Historicism 73 Baylor Law Review 505, 531―38 (2021).
48. 591 U.S. ___, 140 S. Ct. 2246. Importantly, contrary to the assertion of some of theJustices in the majority, the Montana provision that was reenacted in the 1970s was no longer ababy Blaine amendment. Greene, supra note 159.
49. ___ U.S. ___, 142 S. Ct. 1987. This is the practical result of the decision despite the
Court’s protestations to the contrary. Ibid. at 2010 (Breyer, J., dissenting).
50. 142 S. Ct. 1987.
51. Ibid.
52. Ibid. at 1993.
53. Ibid. at 2007―08 (Breyer, J., dissenting).
54. Ibid. at 2001.
55. Ibid. at 1996―2002.
56. Ibid. at 1997―2000.
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teach religion) in any funding program open to nonreligious schools or even to
religious schools that do not mandate the teaching of religion.57 This is applicable
regardless of the state’s interest in not promoting religion and regardless of a state
constitution’s antiestablishment provision(s).58 The only practical way to avoid
funding religious schools would be to have no funding for private education atall.59Carson, like Kennedy, minimizes the importance of establishment concerns,
including establishment concerns under state constitutions and laws.60 This is partof the Court’s recent shift to read establishment concerns as being inadequate totrump free exercise concerns,61 a process that has been quick and nearly total.
This abrupt shift in the law applicable to religion and religious entities, whichgoes against longstanding precedent, has contributed to the recent loss of faith in
the Court discussed in the first section of this article.
57. Ibid.
58. Ibid. at 2006―10 (Breyer, J., dissenting).
59. Ibid. at 2000.
60. An argument that has been raised against state constitutional provisions that preclude
government financial support for religious schools is that some of these state provisions are socalled “baby Blaine” amendments, many of which were heavily based in anti-Catholic animus;
see Philip Hamburger, The Separation of Church and State (Harvard University Press, 2004).
Thus, it is important to note that neither the Maine statutory provisions at issue in Carson nor
the Montana Constitutional provision at issue in Espinoza, as reenacted in 1972, were baby
Blaine amendments, although there are strong arguments that the original Montana provision
was a baby Blaine. In this regard the state law in Carson is easier to address because it was a
statute and the prohibition on funding for sectarian schools dated back only to 1981. Carson,___ U.S. ___, 142 S. Ct. at 1993―94. The state constitutional provision in Espinoza is a bit
tougher to analyze―but only a bit―because the original provision that was passed in 1889 aspart of Montana becoming a state was arguably a baby-Blaine amendment. Espinoza, 140 S.
Ct. 2259. But that provision was reenacted in 1972 at which time support for the no-aid
provision was not based in anti-Catholic animus but rather in support of public education andconcerns over divisive religious disagreements. Espinoza, 140 S. Ct. 2246, 2287 (2020)(Breyer, J., dissenting); G. Allen Tarr, Espinoza and the Misuses of State Constitutions, 72
Rutgers Law Review 1109, 1125―27 (2021); Michael P. Dougherty, Montana’s Constitutional
Prohibition on Aid to Sectarian Schools: “Badge of Bigotry” or National Model for the
Separation of Church and State? , 77 Montana Law Review 41 (2016).
61. Ibid. One of the things that has mystified some observers of this trend is that Justices
Breyer and Kagan joined in the Trinity Lutheran opinion, albeit in its most limited reading,apparently thinking that the limited reading would survive. This, along with their joining in theAmerican Humanist majority opinion is the focus of a thoughtful article by Micah
Schwartzman and Nelson Tebbe; see Micah J. Schwartzman & Nelson Tebbe, Establishment
Clause Appeasement, 2019 Supreme Court Review 271 (2020) (arguing that some Justices haveengaged in a form of appeasement in several recent religion clause cases to minimize conflictand perhaps to limit the scope of those decisions, but that this approach has not worked as thecurrent Court has quickly abandoned limiting principles and compromise).

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Conclusion
In an ironic twist, the U.S. Supreme Court’s recent decisions about faith havecontributed to the loss of faith in the Court. While not as well publicized as its
recent decisions overturning the constitutional right to an abortion, expansion of
gun rights, and destruction of affirmative action in college admissions, the religion
decisions handed down by the Court in June 2022―especially Kennedy v.
Bremerton School District―call the current Court’s impartiality into question by
distorting facts and law. These decisions reflect the current Court’s radical
jurisprudence that gleefully abandons long recognized understandings and rights.
Of course, slow changes in the application and understanding of precedent
have been common in U.S. history, even in the context of constitutional law. This
provides the opportunity to develop precedent as it is applied to new situations
and to consider arguments on both sides of an issue. Yet, the current Court’s
abrupt abandonment of decades of precedent in culture war cases only adds to the
publics’ loss of faith in the Court. Whether the court will be able to recover fromits current fall is more likely to be determined by its decisions than by the otherissues it faces such as ethics concerns. Yet the June 2022 religion cases give little
hope for a quick recovery of faith in the Court.

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