SUMMARY OF THE ARGUMENT:
When National Day of Prayer legislation was introduced in 1952, a Senate report concluded that “[p]rayer has indeed been a vital force in the growth and development of this Nation,” and thus an annual day of prayer would be an appropriate way of “reaffirming in a dramatic manner the deep religious conviction which has prevailed throughout the history of the United States.” S. Rep. No. 82-1389. But Coach Kennedy’s short, private prayer has triggered several years of intense litigation culminating on the steps of this Court, merely because his act of prayer might be seen by students. Bremerton School District seems obsessed with the fact that Kennedy may be observed by students when he prays. This near-paranoid view of the Constitution leaves students with a truncated view of American history that omits the Nation’s rich religious heritage.
The complex intersection of public and private speech is nowhere more evident than in public education—the “marketplace of ideas”—where young minds are exposed to a wide range of subjects. The government is responsible for a considerable amount of speech, but the individuals involved in the system, including teachers, are also private citizens who enjoy First Amendment rights. In preparing young minds for citizenship, schools must provide an accurate and complete picture of American history, including the role of religion.
The Ninth Circuit pits the Establishment Clause against the Free Exercise Clause, creating unnecessary tension. Prayer is not part of Kennedy’s job duties. He prays as a private citizen, not as a government employee. That is abundantly clear to any reasonable observer.