The government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech ….”
-- First Amendment of the Constitution of the United States
On July 27, 2022, the United States Supreme Court ruled on Kennedy v. Bremerton School Dist., a case involving a high school assistant football coach, Kennedy, who alleged that he was placed on administrative leave and then not rehired due to his continued instances, curtailed at the school’s request, of praying on the 50-yard line at the conclusion of school football games. In this case, the Supreme Court determined that Kennedy’s free exercise and free speech rights were violated when the school district enforced a policy to not rehire Kennedy due to his failure to supervise students at the end of football games, as well as his outward religious displays at the conclusion of football games.
The school district admitted that its policies prohibiting Kennedy’s prayers were not neutral toward religious conduct—in fact, they were compelled by the Establishment Clause. The Supreme Court also determined that the district’s policies were not generally applicable to all employees, as time was often given to other coaches or staff to check emails or visit with friends at the conclusion of the football games—secular conduct performed while those same employees were charged with supervising students. As the policies were not neutral or generally applicable to Kennedy’s free exercise, those policies were subject to strict scrutiny, shifting the burden from Kennedy to the district to demonstrate that the district’s policies were narrowly tailored to compelling governmental interests.
After determining that the school district’s policies were not neutral or generally applicable as applied to Kennedy’s conduct, the Court applied the Pickering-Garcetti framework to assess Kennedy’s free speech claims, which requires a determination of if the employee is speaking “pursuant to [his or her] official duties,” and if so, then “a delicate balancing of the competing interests surrounding the speech and its consequences.” Garcetti, 547 U.S. 410, 421, 423. The Supreme Court determined that Kennedy’s prayers were not pursuant to his official duties as a football coach, but were instead a private act of prayer that occurred at a time when other teachers or coaches could call home, check a text message, or socialize. The Court also determined that the district’s only justification for not rehiring Kennedy was its belief that it would violate the Establishment Clause of the First Amendment if the district allowed Kennedy's prayers to continue, which the Court said was based on an erroneous reading of prior precedent, particularly Lemon v. Kurtzman. Justice Gorsuch said Lemon has long been abandoned, and that the appropriate analysis was looking at history and the understanding of the drafters of the Constitution. The majority opinion then determined that the record did not indicate that students felt compelled to join in Kennedy’s prayers (and, in fact, didn’t join in the prayers for which he was suspended), and that the students also were not in a situation where they had no other choice but participate, at issue in prior Establishment Clause cases.
While there was disagreement about the specific facts of this case—particularly regarding the exact nature of Kennedy’s prayer and whether students felt coerced to join—it is important to recognize that this opinion signals a shift away from prior legal principles regarding free exercise and free speech cases and into a much more difficult assessment for local governments and their employees. At this time the Supreme Court seems to be saying that a local government official’s fear of appearing to “endorse religion” under the Establishment Clause should not be the basis for denying rights of citizens, employees, and businesses under the Free Exercise and Free Speech Clauses of the Constitution.