U.S. Supreme Court Clarifies Establishment Clause Precedent While Affirming Employee’s Free Exercise and Free Speech Claim

Along with several high-profile cases, the U.S. Supreme Court issued its decision in Kennedy v. Bremerton School District on June 27, 2022.  2022 WL 2295034.  Kennedy involved the interplay between a government’s duties under the Establishment Clause and an employee’s right to free speech and free exercise of religion.

Facts

Kennedy is a devote Christian who coached football for Bremerton School District (BSD) from 2008 to 2015.  When Kennedy joined the coaching staff, he took over leading a team prayer before each game.  Kennedy’s religious beliefs also called him to “give thanks through prayer at the end of each game” by kneeling near midfield to say a quiet prayer after the teams completed post-game handshakes.

Initially, Kennedy prayed after the game alone, but some football team members later asked Kennedy if they could join him.  Kennedy told the students it was a free country, and they could join him if they wanted.  The number of participating students grew over time and included students and coaches from the opposing team.  As the group grew, Kennedy’s prayers evolved into short motivational speeches containing religious themes.

BSD officials learned of Kennedy’s activities when an opposing coach expressed gratitude that BSD was allowing the post-game prayer.  BSD’s Superintendent later sent Kennedy a letter raising concerns regarding the pre-game locker room prayers and the post-game motivational type speeches with religious references.  The letter advised Kennedy that he could continue giving motivational speeches after games, but they had to be entirely secular.  The Superintendent’s letter further advised that Kennedy could engage in religious activities, provided that they were not outwardly discernable as religious activity.

After receiving the letter, Kennedy ended the locker room prayers and ended his practice of incorporating religious references in post-game speeches.  Initially, Kennedy also ended his private post-game prayer.  However, Kennedy felt he had broken his commitment to God by not praying after the game.

A month after receiving the Superintendent’s letter, Kennedy responded, through his attorney, stating his sincerely held religious beliefs compelled him to offer a private prayer on the field after the game.  Kennedy’s letter further emphasized that he sought to pray at midfield after students had left the field.

The District responded to the letter and acknowledged that Kennedy had complied with the District’s directives.  However, the District denied Kennedy’s request to engage in private prayer on the field and reiterated that overt acts that a reasonable observer would interpret as endorsing prayer while on duty were prohibited.

Despite the District’s directive, Kennedy prayed at midfield after the next three (3) football games of the season.  After the third game, BSD placed Kennedy on administrative leave for the remainder of the season.  After the season, BSD gave Kennedy a poor performance review (all of his previous performance reviews were positive) and recommended not to retain him as a football coach. Kennedy filed suit against BSD in federal court, alleging BSD violated his free exercise of religion and free speech rights.

Procedural History and Decision

The District Court granted summary judgment to BSD, holding that Kennedy’s prayer was speech as a public employee, which was not entitled to first amendment protection.  The District Court further concluded that even if Kennedy spoke as a private citizen, BSD’s actions justified limiting his speech to avoid an Establishment Clause violation.

On appeal, the Ninth Circuit affirmed the District Court’s decision.  The Ninth Circuit reasoned that a football coach’s role is to teach on the field, in the locker room, and at the stadium.  Thus, Kennedy’s expression on the field as a public employee was not entitled to First Amendment protections.  The Ninth Circuit also affirmed the District Court’s conclusion that avoiding an Establishment Clause violation was adequate justification for restricting Kennedy’s speech.

The U.S. Supreme Court reversed the Ninth Circuit’s decision and held that BSD violated Kennedy’s first amendment rights.  Writing for the Court, Justice Gorsuch concluded that Kennedy’s private religious prayer was doubly protected by the First Amendment’s free speech and free exercise of religion clauses.  The Court further concluded that the Ninth Circuit applied a mistaken standard under the Establishment Clause to justify BSD’s infringement of Kennedy’s rights.

Regarding Kennedy’s free exercise claims, the Court concluded that he met his burden to establish a free exercise violation.  The Court explained that Kennedy was engaged in a religious exercise for a sincerely held belief.  The Court further explained that BSD’s prohibition on private prayer was not a neutral or generally applicable rule.  The Court reasoned that the prohibition was not neutral because BSD directed the rule specifically towards religious activity.  The Court further reasoned that the rule was not generally applicable since BSD staff members were allowed to engage in secular activities after games when they were otherwise responsible for supervising students after football games.

Similarly, the Court concluded that Kennedy’s private prayers constituted protected first amendment speech.  The Court reasoned that Kennedy’s private prayers were offered in his private capacity and not pursuant to his official duties.  Thus, the Court reasoned that the private prayers were entitled to protection under the first amendment.  The majority opinion explicitly rejected the dissenting Justices’ view that a coach’s role as an example to students brought his private prayers within the scope of his government employment, which BSD could lawfully prohibit.

After concluding that Kennedy established BSD restricted his right to free exercise and free speech, the Court analyzed whether BSD’s concerns about violating the Establishment Clause justified those restrictions.  The Court rejected BSD’s argument that Kennedy’s private prayers would violate the Establishment Clause if a reasonable observer could think it endorsed his religious activities by allowing them.  On the contrary, the Court emphasized that a governmental entity does not violate the Establishment Clause simply because it fails to censor private religious speech.

The Court also rejected BSD’s claims that Kennedy’s speech coerced students to participate in religious activities.  BSD asserted that some students reported participating in the group prayers because they were concerned that failing to do so would negatively impact their playing time and opportunities.  The Court noted that BSD disciplined Kennedy for engaging in private prayer away from students, not the pre-game locker room prayers or the post-game motivational speeches that included religious messages (practices that Kennedy agreed to discontinue when directed by the BSD).  On those facts, the Court concluded there was no evidence that Kennedy’s private prayers coerced students to participate in religious activities.

Conclusion

Constitutional first amendment issues are extremely fact-specific, particularly related to the establishment and free exercise of religion clauses.  The Court’s decision in Kennedy provides important insights to how the current Justices may analyze future establishment and free exercise of religion clause cases.  However, the decision’s concurring opinions and the dissent point out that many questions remain unanswered regarding religious activities and expression in the school district environment.  School districts should consult legal counsel when confronted with such questions.