Kennedy v. Bremerton School District

United States Supreme Court
142 S.Ct. 2407, 213 L.Ed.2d 755 (2022)

ELI5:

Rule of Law:

Public school officials may engage in private religious expression without violating the Establishment Clause, provided the expression does not lead to direct coercion or endorsement of religion.

Facts:

Joseph Kennedy, an assistant football coach for Bremerton High School, had a practice of kneeling at the 50-yard line after games for a brief, quiet, personal prayer.
Initially, Kennedy prayed alone, but over time some of his players asked to join him, which he permitted.
In September 2015, the Bremerton School District learned of the practice and instructed Kennedy to cease leading students in prayer and to ensure any personal religious activity was not observable by students to avoid the appearance of school endorsement.
Kennedy stopped leading team prayers and giving religious speeches but informed the District he felt compelled by his sincere religious beliefs to continue his personal, quiet prayer at midfield after games, during a time when players and coaches were otherwise occupied with post-game activities.
The District denied his request, prohibiting any 'overtly religious conduct' that could be seen by the public while he was on duty, citing its concern that permitting the prayer would violate the Establishment Clause.
After the October 16 game, Kennedy knelt and prayed at midfield and was joined by members of the opposing team and the public.
After the October 23 and October 26 games, Kennedy knelt alone at midfield for a brief, quiet prayer while his players were engaged in other activities, such as singing the school fight song.
Following these events, the District placed Kennedy on paid administrative leave and gave him a poor performance evaluation, recommending against his rehiring for failing to follow the District's directive to refrain from 'public and demonstrative religious conduct.'

Procedural Posture:

Joseph Kennedy sued the Bremerton School District in the U.S. District Court for the Western District of Washington, a federal trial court, alleging violations of his First Amendment rights and seeking a preliminary injunction.
The district court denied Kennedy's motion for a preliminary injunction.
Kennedy appealed the denial to the U.S. Court of Appeals for the Ninth Circuit, an intermediate appellate court, which affirmed the district court's decision.
The case returned to the district court, which granted summary judgment in favor of the Bremerton School District.
Kennedy (the appellant) appealed to the Ninth Circuit, which affirmed the summary judgment for the Bremerton School District (the appellee).
The Ninth Circuit then denied a petition for rehearing en banc over the dissent of 11 judges.
The U.S. Supreme Court granted Kennedy's petition for a writ of certiorari to review the Ninth Circuit's decision.

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Issue:

Does a public school district violate the Free Exercise and Free Speech Clauses of the First Amendment by disciplining a high school football coach for offering a quiet, personal prayer on the field after games?

Opinions:

Majority - Gorsuch

Yes. A public school district violates the Free Exercise and Free Speech Clauses by disciplining a coach for quiet, personal prayer, as the prayer is private speech, not government speech, and the District's actions were not neutral or generally applicable. The District's justification for its actions—a concern for violating the Establishment Clause—was based on a mistaken understanding of that clause. The Court formally abandons the Lemon test and its 'endorsement test' offshoot, holding that Establishment Clause analysis must be guided by reference to historical practices and understandings. Here, there was no evidence of coercion, as students were not required to participate, and Kennedy's conduct did not constitute a state establishment of religion simply because it was visible to the public. A 'phantom' fear of an Establishment Clause violation cannot justify an actual violation of an individual's Free Exercise and Free Speech rights.

Concurring - Thomas

Yes. This opinion joins the Court's opinion in full but writes separately to emphasize that the Court does not resolve two related issues: 1) whether or how public employees' rights under the Free Exercise Clause might differ from those of the general public, and 2) what specific burden a government employer must meet to justify restricting an employee's religious expression, as the District’s actions failed under any potentially applicable standard.

Concurring - Alito

Yes. This opinion joins the Court's opinion in full but clarifies that the coach's expression occurred while at work but during a lull in his duties, when he was acting in a purely private capacity. The Court does not decide what standard applies to all such expression under the Free Speech Clause but holds only that the District's retaliation cannot be justified under any of the standards discussed.

Dissenting - Sotomayor

No. The public school district did not violate the First Amendment because its actions were necessary to avoid violating the Establishment Clause's prohibition on state establishment of religion. The majority misconstrues the facts by portraying Kennedy's prayers as private and quiet; they were a public, demonstrative continuation of a long-standing practice of leading students in prayer at the center of a school event. This conduct unconstitutionally endorsed religion and exerted coercive pressure on students, who are uniquely vulnerable in a school setting. The Court errs by abandoning the Lemon test and its concern for government endorsement of religion, replacing it with a vague 'history and tradition' test that offers little guidance and does a disservice to the Nation's commitment to the separation of church and state.

Analysis:

This decision marks a significant shift in Establishment Clause jurisprudence by formally discarding the Lemon test and its 'endorsement' analysis in favor of a new test rooted in 'history and tradition.' The ruling strengthens the free speech and free exercise rights of public employees, clarifying that personal religious expression, even when visible, is constitutionally protected unless it is part of an employee's official duties or is genuinely coercive. The decision significantly limits the power of government employers to restrict religious speech based on speculative concerns about appearing to endorse religion, effectively rejecting what the Court frames as a 'heckler's veto' by perceived observers. Future litigation will likely focus on defining the contours of coercion and the application of the new 'history and tradition' standard.

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