On June 27, 2022, the U.S. Supreme Court (“Court”) issued its decision in Kennedy v. Bremerton School District, ruling 6-3 that Joseph Kennedy, a part-time football coach at Bremerton High School, a public school in Washington state, had a constitutional right to pray at the 50-yard line after his team’s games. In holding that the Establishment Clause does not require the government to suppress all private religious expression and speech, the Court’s decision broadens individual rights of religious expression in public schools.
The case was brought by Joseph Kennedy, a high school football coach who had a practice of praying on mid-field after games. School officials repeatedly warned Kennedy against continuing his practice of praying at midfield after football games because it violated students’ rights of religious freedom and created a safety risk by drawing crowds of players and spectators. When Kennedy refused to follow the school district’s directive, he was placed on paid administrative leave and was ultimately not rehired for the following school year. After losing his job, Kennedy filed a federal lawsuit, arguing that the school district’s actions violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.
Justice Neil Gorsuch wrote for the majority, joined by the Court’s five other conservative justices, holding that Kennedy’s practice of kneeling to “offer a quiet personal prayer” on the field after football games was protected by both the First Amendment’s Free Exercise and Free Speech Clauses. The Court’s decision reversed the Ninth Circuit Court of Appeal’s ruling in favor of the school district that allowing Kennedy to publicly pray after football games violated the Establishment Clause of the First Amendment, which prohibits the government from both establishing an official religion and preferring one religion over another.
In finding that Kennedy met his burden of showing his rights under the Free Exercise Clause had been infringed, Gorsuch explained that Kennedy’s desire to pray was undisputedly sincere, and that instead of applying a policy that was either neutral or generally applicable, the school district’s restrictions on prayer targeted Kennedy’s religious conduct. Regarding Kennedy’s claim that the school district’s decision not to rehire him violated his Free Speech rights, the majority found that, although Kennedy was still on-duty, his post-game prayer was not government speech attributable to the school district because the prayers occurred “during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech,” and Kennedy did not seek to convey a governmental message. Thus, Kennedy’s prayer was offered in his capacity as a private citizen.
After establishing that Kennedy’s Free Exercise and Free Speech rights were violated, the majority opinion considered the school district’s justifications for the infringement, but the Court ultimately rejected the school district’s primary argument that allowing Kennedy’s post-game prayers would violate the Establishment Clause under any standard of review. In so doing, the Court also expressly rejected the long-standing test adopted in the Court’s 1971 decision Lemon v. Kurtzman, 403 U.S. 602, used to determine whether government action violates the Establishment Clause. Under the Lemon test, courts examine the purposes of the challenged governmental action, as well as its effects and potential for entanglement with religion, or whether a “reasonable observer” would view the government’s actions as endorsing religion. Having rejected the Lemon test, the Court held that the Establishment Clause must be interpreted by reference to historical practices and understandings.
The majority opinion also dismissed the school district’s argument that it could prohibit Kennedy’s post-game prayer to prevent students from feeling compelled to join him in praying, distinguishing Kennedy’s prayer from previous cases in which the Court found prayer in public school settings impermissibly coercive. According to the majority, allowing Kennedy’s private, post-game prayer does violate the Establishment Clause because, unlike earlier cases prohibiting prayer at graduation ceremonies and football games, students were not required to participate or listen to a particular religious message. As the Court explained, not every visible religious conduct of a teacher or coach should be deemed impermissibly coercive toward students.
Ultimately, the Court concluded that because Kennedy demonstrated that his post-game prayers were private speech and not government speech expressed within the scope of his duties as a coach, the free Exercise and Free Speech Clauses of the First Amendment protected Kennedy as an individual engaging in a personal religious observance from government reprisal.
In her dissenting opinion, which was joined by Justices Elena Kagan and Stephen Breyer, Justice Sonia Sotomayor explained that the key question in case the was not whether Kennedy could pray privately, but instead “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.” When it comes to schools, Sotomayor emphasized that the government must remain neutral about religion both because of the important role that schools play and because children are especially susceptible to feeling compelled to join in prayer.
Sotomayor also opined that the majority misconstrued Kennedy’s prayers as private and quiet, ignoring the severe disruption it caused to school events, and noting that students did feel obligated to join Kennedy and, later, their teammates in prayer. As Sotomayor concluded, the Court’s decision “weakens the backstop” that the Establishment Clause provided to protect religious freedom and “elevates one individual’s interest in personal religious exercise . . . over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”
The Kennedy decision leaves much to be determined regarding the practical consequences for school districts and the place of religious activities in public schools. OMLO will monitor developments carefully and will continue to provide updates as they become available. If you have any questions regarding this decision, do not hesitate to contact your OMLO attorney.
This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.