Kennedy v. Bremerton School Dist.
213 L. Ed. 2d 755, 597 U.S. 507 (2022)
Rule of Law:
The Free Exercise and Free Speech Clauses protect an individual engaging in a personal religious observance from government reprisal unless the government can satisfy strict scrutiny; the Establishment Clause does not compel the government to suppress private religious speech to avoid the appearance of endorsement, but is instead interpreted by reference to historical practices and understandings.
Facts:
- Joseph Kennedy, a high school football coach employed by the Bremerton School District, adopted a practice of kneeling at the 50-yard line after games to offer a quiet, personal prayer of thanks.
- While Kennedy initially prayed alone, over time, some students voluntarily joined him, and he occasionally gave motivational speeches with religious references, though he ceased the speeches and locker room prayers upon the District's request.
- The District wrote to Kennedy objecting to his post-game field prayers, asserting that his conduct could be perceived as the school endorsing religion in violation of the Establishment Clause.
- Kennedy temporarily complied but later informed the District he felt compelled by his faith to resume his private post-game prayers, which he did after three specific games in October 2015.
- During these specific instances, Kennedy prayed while students were engaged in other activities like singing the fight song, though members of the public and opposing teams occasionally gathered around him.
- The District placed Kennedy on administrative leave and subsequently recommended against rehiring him, citing his failure to comply with District policy regarding religious expression.
- The District admitted that the sole reason for disciplining Kennedy was the risk of constitutional liability under the Establishment Clause for what they deemed an endorsement of religion.
Procedural Posture:
- Kennedy sued the School District in the U.S. District Court for the Western District of Washington, alleging violations of his First Amendment rights.
- Kennedy moved for a preliminary injunction to be reinstated, which the District Court denied.
- Kennedy appealed the denial of the injunction to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit affirmed the denial of the preliminary injunction.
- The case returned to the District Court, where both parties moved for summary judgment.
- The District Court granted summary judgment in favor of the School District.
- Kennedy appealed the summary judgment decision to the Ninth Circuit.
- The Ninth Circuit affirmed the District Court's grant of summary judgment for the School District.
- The Ninth Circuit denied a petition to rehear the case en banc.
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Issue:
Does a public school district violate the Free Exercise and Free Speech Clauses of the First Amendment when it disciplines a high school football coach for offering a quiet, personal prayer at midfield after games?
Opinions:
Majority - Justice Gorsuch
Yes. The Court held that the District violated Kennedy's First Amendment rights because his prayers were private speech protected by the Free Exercise and Free Speech Clauses, and the District's concern about the Establishment Clause was misplaced. The Court reasoned that Kennedy satisfied his burden to show that the District's policy was not neutral or generally applicable, as he was disciplined specifically for religious conduct. Furthermore, under the Pickering and Garcetti frameworks, Kennedy was speaking as a private citizen on a matter of public concern, not as a government employee, because the prayers occurred during a 'lull' in duties when coaches were free to attend to personal matters. The Court explicitly rejected the District's justification that suppressing the speech was necessary to avoid an Establishment Clause violation. In doing so, the Court overruled Lemon v. Kurtzman and the 'endorsement test,' holding that Establishment Clause analysis must instead focus on 'historical practices and understandings.' The Court found no evidence that Kennedy coerced students to pray, noting that he prayed while students were otherwise occupied.
Concurring - Justice Thomas
Yes. While joining the majority opinion, Justice Thomas wrote separately to highlight unanswered questions regarding how public employees' rights under the Free Exercise Clause interact with their employment. He noted that while the Court applied the Pickering balancing test for the Free Speech claim, it remains an open question whether a similar balancing test applies to Free Exercise claims or if strict scrutiny should always apply once a burden is shown.
Concurring - Justice Alito
Yes. Justice Alito concurred to emphasize that the expression at issue occurred during a brief break in the coach's duties when he was acting in a purely private capacity. He noted that the Court's decision does not decide exactly what standard applies to such private expression, only that the retaliation was unjustified.
Dissenting - Justice Sotomayor
No. The dissent argued that the Court disregarded the severe constitutional violation inherent in a school official leading prayer at a school event. Justice Sotomayor contended that the majority ignored the factual context of Kennedy's longstanding practice of leading students in prayer and focused too narrowly on the three specific quiet prayers. The dissent argued that Kennedy's actions constituted government speech because he was on duty at the 50-yard line, and that his actions placed inherent coercive pressure on students to participate to please their coach. The dissent criticized the overruling of Lemon, arguing that the 'endorsement test' provided necessary protection for religious neutrality in schools.
Analysis:
This decision represents a seismic shift in First Amendment jurisprudence by formally overruling Lemon v. Kurtzman (1971) and abandoning the 'endorsement test' that had governed Establishment Clause cases for decades. By replacing these tests with an analysis based on 'historical practices and understandings,' the Court has significantly raised the bar for proving an Establishment Clause violation, making it harder for government entities to restrict religious expression in public spaces under the guise of neutrality. The ruling clarifies the rights of public employees, establishing that brief, quiet religious observances during duty 'lulls' are protected as private speech. Practically, this forces schools to accommodate more religious expression by staff provided it does not amount to direct government coercion of students.
