By the State and Local Legal Center
In Kennedy v. Bremerton School District, the U.S. Supreme Court held 6-3 that the First Amendment protects an assistant football coach who “knelt at midfield after games to offer a quiet prayer of thanks.”
The Supreme Court also overruled Lemon v. Kurtzman (1971).
The majority and the dissent disagree about the facts of this case. Both sides agree assistant football coach Joseph Kennedy had a long history of praying alone and with students at midfield after football games and praying with students in the locker room pregame and postgame.
When directed to, Kennedy stopped the latter practice. But he told the district he felt “compelled” to continue offering a “post-game personal prayer” midfield. The district placed Kennedy on leave for praying on the field after three particular games.
Justice Neal Gorsuch, writing for the court, concluded Kennedy was able to make the initial showing that the school district violated his free exercise of religion and free speech rights by not allowing him pray on the field after games.
Regarding Kennedy’s Free Exercise Clause claim, the court concluded the school district burdened his sincere religious practice pursuant to a policy that is neither “neutral” nor “generally applicable.” The district’s actions weren’t neutral because “[b]y its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.”
The district’s actions weren’t “generally appliable” either, the court concluded. While the district stated it refused to rehire Kennedy because he “failed to supervise student-athletes after games,” the district “permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls.”
Regarding Kennedy’s Free Speech Clause claim, the court first had to decide whether Kennedy was speaking as a government employee (who isn’t protected by the First Amendment) or as a citizen (who receives some First Amendment protection). The court determined Kennedy was acting as a citizen.
“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. 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.”
While the court would have normally shifted the burden to the school district to defend its actions under the Free Exercise and Free Speech Clauses, the court didn’t in this case noting that under whatever test it applied the school district would lose.
The district explained it suspended Kennedy because of Establishment Clause concerns namely that a “reasonable observer” would conclude the district was endorsing religion by allowing him to pray on the field after games. In response, the court overturned the prevailing standard called the Lemon test.
Lemon “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.’” In its place, the court stated it has adopted a view of the Establishment Clause that “accor[ds] with history and faithfully reflec[ts] the understanding of the Founding Fathers.” The court also found insufficient evidence students were coerced to pray.
Michael Dreeben, Ephraim McDowell and Jenya Godina of O’Melveny & Myers wrote the State and Local Legal Center amicus brief which the following organizations joined: National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, National Public Labor Employer Labor Relations Association, and International Public Management Association for Human Resources.