Primary Source: Kennedy v. Bremerton School District (2022)

One key area of debate under the First Amendment’s Establishment Clause is over the constitutionality of prayer in government settings, including public schools and legislative sessions. In the 1960s, the Supreme Court ruled that it was unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on a voluntary basis. These cases received a great deal of public backlash, but the Court held its ground. This case tested the boundaries of those previous rulings. Joseph A. Kennedy, a football coach at a public high school, prayed at the 50-yard line immediately after games. Fearing potential lawsuits, the school district asked the coach to stop and eventually refused to renew his contract. Kennedy sued the district for violating his First Amendment rights. In a 6-3 decision, the Court ruled that the coach’s conduct was protected by the First Amendment. The Court concluded that the school’s efforts to prevent the prayer violated the coach’s free exercise rights—in particular, by treating his religious expression less favorably than post-game secular activities by other school employees. The Court also abandoned Lemon v. Kurtzman (1971), a decades-old precedent addressing the Establishment Clause.

Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. These Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities. . . . That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent. . . .

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise” of religion . . . . The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.” . .

Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” . . . Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. . . .

That Mr. Kennedy has discharged his burdens is effectively undisputed. No one questions that he seeks to engage in a sincerely motivated religious exercise. The exercise in question involves, as Mr. Kennedy has put it, giving “thanks through prayer” briefly and by himself “on the playing field” at the conclusion of each game he coaches. . . . Mr. Kennedy has indicated repeatedly that he is willing to “wai[t] until the game is over and the players have left the field” to “wal[k] to mid-field to say [his] short, private, personal prayer.” . . . The contested exercise before us does not involve leading prayers with the team or before any other captive audience. Mr. Kennedy’s “religious beliefs do not require [him] to lead any prayer . . . involving students.” . . . At the District’s request, he voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students. The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015. . . .

Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule. . . . A government policy will fail the general applicability requirement if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way,” or if it provides “a mechanism for individualized exemptions.” . . .

[T]he District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. . . . On its account, Mr. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. . . . To resolve that clash, the District reasoned, Mr. Kennedy’s rights had to “yield.” . . .

[The school district] began with the premise that the Establishment Clause is offended whenever a “reasonable observer” could conclude that the government has “endorse[d]” religion. . . . The District then took the view that a “reasonable observer” could think it “endorsed Kennedy’s religious activity by not stopping the practice.” . . .

To defend its approach, the District relied on Lemon [v. Kurtzman] and its progeny. . . . And, to be sure, in Lemon this Court attempted a “grand unified theory” for assessing Establishment Clause claims. . . . That approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. . . . In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. . . .

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. . . . This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” . . . An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. . . . Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” . . .

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.’” . . . “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d ] with history and faithfully reflec[t] the understanding of the Founding Fathers.” . . . An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “exception” within the “Court’s Establishment Clause jurisprudence.” . . . The District . . . erred by failing to heed this guidance. . . .

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” . . . This Court has long recognized as well that “secondary school students are mature enough . . . to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” . . . Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense . . . does not equate to coercion.” . . .

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. 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. 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 Court . . . charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. . . . To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. 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. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District) stated that it was suspending Kennedy to avoid it being viewed as endorsing religion. . . .

Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman . . . and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. . . . In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent. . . .

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about 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, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so. . . .

Kennedy’s tradition of a 50-yard line prayer thus strikes at the heart of the Establishment Clause’s concerns about endorsement. For students and community members at the game, Coach Kennedy was the face and the voice of the District during football games. The timing and location Kennedy selected for his prayers were “clothed in the traditional indicia of school sporting events.” . . . Kennedy spoke from the playing field, which was accessible only to students and school employees, not to the general public. Although the football game itself had ended, the football game events had not; Kennedy himself acknowledged that his responsibilities continued until the players went home. Kennedy’s postgame responsibilities were what placed Kennedy on the 50-yard line in the first place; that was, after all, where he met the opposing team to shake hands after the game. Permitting a school coach to lead students and others he invited onto the field in prayer at a predictable time after each game could only be viewed as a postgame tradition occurring “with the approval of the school administration.” . . .

Kennedy’s prayer practice also implicated the coercion concerns at the center of this Court’s Establishment Clause jurisprudence. This Court has previously recognized a heightened potential for coercion where school officials are involved, as their “effort[s] to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject.” . . . The reasons for fearing this pressure are self-evident. This Court has recognized that students face immense social pressure. Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting. In addition to these pressures to please their coaches, this Court has recognized that players face “immense social pressure” from their peers in the “extracurricular event that is American high school football.” . . .

The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” . . .

Today, the Court once again weakens the backstop. It 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. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent.