The U.S. Supreme Court on Monday ruled that a high school football coach’s post-game prayers at midfield were protected by the First Amendment’s free speech and free exercise of religion clauses and that the Constitution neither requires nor permits school districts to suppress such religious expression by employees.
The decision in Kennedy v. Bremerton School District (Case No. 21-418) is likely to have enormous practical consequences for school districts and their supervision of teachers and other employees, though the opinions left some questions unresolved. Disputes over religious expression in schools have been a constant for years.
The court ruled 6-3 that Washington state coach Joseph A. Kennedy’s practice of kneeling in prayer was private speech, not government speech, and that the Bremerton school district went too far when it effectively fired him when he refused to stop the prayers or conduct them in a less conspicuous place.
“Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the free exercise and free speech clauses of the First Amendment,” Justice Neil M. Gorsuch wrote for the majority. “And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”
The prayer decision is the latest victory for the free exercise of religion with regard to public education. Just last week, the court struck down a Maine law that barred most religious schools from a tuition aid program.
Writing in dissent, Justice Sonia Sotomayor said that the majority “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”
Sotomayor said that the majority opinion overrules Lemon v. Kurtzman, the 1971 Supreme Court decision that set forth a three-part test for examining government action regarding religion, and said the new ruling “calls into question decades of subsequent precedents that it deems offshoots of that decision.”
“This decision does a disservice to schools and the young citizens they serve,” Sotomayor said, in a dissent joined by Justices Stephen G. Breyer and Elena Kagan.
Gorsuch does not explicitly say “Lemon is overruled,” but he treats the test as long discarded by the court.
“In place of Lemon and the endorsement test, this court has instructed that the establishment clause must be interpreted by ‘reference to historical practices and understandings’,” Gorsuch wrote, quoting from a 2014 decision about prayer at public meetings.
While Sotomayor suggested a range of the court’s school prayer precedents might be at risk, including those involving student speech, Gorsuch said the case involving the football coach “looks very different from those in which this court has found prayer involving public school students to be problematically coercive.”
Gorsuch’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh, and Amy Coney Barrett. (Kavanaugh declined to join one section of the opinion.)
In a statement released by the First Liberty Institute, the Plano, Texas-based legal organization that has represented him from the beginning, Kennedy said, “This is just so awesome. All I’ve ever wanted was to be back on the field with my guys.”
The 4,425-student Bremerton district, in a statement, said, “In light of the court’s decision, we will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff. We look forward to moving past the distraction of this seven-year legal battle so that our school community can focus on what matters most: providing our children the best education possible.”
A complicated, sometimes contradictory factual record
Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High School in Bremerton, Wash., in the fall of 2015 when his post-game prayers caused controversy.
Bremerton district officials advised Kennedy that he could give inspirational talks to team members before and after games, but he could not lead or encourage student prayers, which the district believed could be coercive to students. The coach complied for several weeks, but sought an accommodation from the district to continue his post-game prayers. The school district rejected his view that his job responsibilities ended when the football game did.
When the coach continued to pray on the field at the end of two more games, the district placed him on administrative leave, and he did not seek to renew his contract. The coach sued the school district in seeking reinstatement as a coach and a ruling that he had the right to pray on the field after games.
Hiram S. Sasser III, a lawyer with First Liberty, said the Supreme Court decision was consistent with what the group had communicated with the Bremerton school district early in the controversy, that “there is a big difference between people speaking on behalf of the government and speaking on behalf of themselves. Coach just wanted to pray for himself.”
But Richard B. Katskee, the vice president and legal director of Americans United for Separation of Church and State, the Washington, D.C.-based legal organization that represents the school district, said in a Zoom session with reporters that it was not at all clear that Kennedy really wants to resume the part-time coaching position given that the coach and his wife moved to Florida two years ago for family reasons.
“The majority today made a choice,” Katskee said. “It concluded that a public school employee’s desire to pray on the job with students is more important than the religious freedom rights of the students and their families. Yet, that’s what public schools are supposed to protect.”
Decision weighs precedents on public-employee speech
In his opinion for the court, Gorsuch concluded that Kennedy had sought to pray to himself silently at the end of games at a time when his own team members were singing the school fight song but when some opposing players joined him.
Gorsuch analyzed the coach’s free speech claims under two decisions on public employee speech, Pickering v. Board of Education of Township High School District 205 and Garcetti v. Ceballos. The Pickering decision, from 1968, held that a teacher’s speech on a matter of public concern is protected under the First Amendment if it outweighs the employer’s interests in workplace efficiency and lack of disruption. Garcetti, in 2006, held that public employers could regulate the on-the-job speech of their employees.
“When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ordinarily within the scope of his duties as a coach,” Gorsuch said. “He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the district paid him to produce as a coach.”
Gorsuch also concluded that Kennedy had not engaged in any coercion of students to participate in his prayers. And he rejected the school district’s argument that any visible religious conduct by a teacher or coach should be deemed coercive on students.
Under the district’s interpretation, schools could not only “fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice,” but they would be required to do so, he said.
Gorsuch touched on the court’s existing precedents prohibiting clergy-led prayers at graduation, and student-initiated and student-led prayers at football games.
“This case looks very different from those in which this court has found prayer involving public school students to be problematically coercive,” Gorsuch said. “The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate.”
Thomas wrote a concurrence saying that the majority opinion “refrains from deciding whether or how public employees’ rights under the free exercise clause may or may not be different from those enjoyed by the general public.” He also said the court had never applied the Pickering test to a free exercise claim, and because the school district in this case had no constitutional basis for reprimanding Kennedy, the court “does not decide what burden a government employer must shoulder to justify restricting an employee’s religious expression.”
Alito filed a short concurrence saying that expression at issue in the case was unlike that of any of the court’s other cases involving the free-speech rights of public employees.
The coach’s “expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities,” and thus he was acting in a “purely private capacity,” Alito said. The court has not decided what standard should apply to such speech under the free speech clause, he said.
Sotomayor, in her dissent, said the majority “misconstrues the facts” when it characterizes Kennedy’s prayers as private and quiet.
“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field,” she said. “Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The court ignores this history.”
Sotomayor said the majority adopts a “nearly toothless version” of a coercion test that “[fails] to acknowledge the unique pressures faced by students when participating in school-sponsored activities.”
She said the majority has essentially put off for another day the details of its “history and tradition test” that would replace the Lemon test for analyzing government interaction with religion under the establishment clause. And the court’s test “offers essentially no guidance for school administrators,” she said.
“If even judges and justices … regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt?” Sotomayor said. “How will school administrators exercise their responsibilities to manage school curriculum and events when the court appears to elevate individuals’ rights to religious exercise above all else?”
Opponents, supporters both predict wide impact
Sasha Pudelski, director of advocacy for AASA, the School Superintendents Association, which had filed a friend-of-the-court brief in support of the Bremerton district, said in a statement that “this is a nightmarish ruling for districts. This decision will sow confusion as to when prayer by a school official can be appropriate and whether a district can shield students adequately from perceived or actual religious coercion.”
Rachel Laser, the president of Americans United for Separation of Church and State, said in the Zoom session that the Bremerton decision was one more attack on public education and “opens the door to coercive prayers in K-12 classrooms.”
Sasser, of the First Liberty Institute, said the decision may well be felt beyond school employees to bolster student religious expression.
“I think you’re going to find that religious speech is going to find robust protection in public education,” he said. “Students are private speakers, and their speech is going to be protected.”
