Written By: Riley Bridges
On June 27, 2022, nearing the last day of the term, the United States Supreme Court clarified its Establishment Clause jurisprudence in Kennedy v. Bremerton School District by holding that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual participating in religious exercise from government sanction.
Joseph Kennedy, a high school football coach, conducted prayer with students before and after games, following a “school tradition” that had been in place since long before his employment. His employer, the Bremerton School District (the “District”), requested that Mr. Kennedy avoid any demonstrative religious activity. The District offered the solution that Mr. Kennedy religiously express himself “behind closed doors” instead. To mitigate the issue, Mr. Kennedy offered to quietly pray by himself while the students were engaged in other activities such as singing the school’s fight song. The District gave Mr. Kennedy an ultimatum, forbidding him from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.” The District feared that anything less would risk violating the Establishment Clause. However, on October 26, 2015, Mr. Kennedy disregarded the District’s concerns. Believing that he had rights to free speech and free exercise of his religion under the First Amendment, Mr. Kennedy knelt at the fifty-yard line and offered a brief, quiet prayer while students were engaged in other celebratory traditions. Soon after, the District terminated his employment.
The Obscure Area Between the Free Exercise, Free Speech, and Establishment Clauses of The First Amendment
A perplexing issue that has existed since long before Mr. Kennedy’s case is that of the relationship between free speech rights and government employment. The Free Exercise Clause provides “Congress shall make no law . . . prohibiting the free exercise” of religion. (U.S. Const. amend. I.) This Clause embodies an American’s right to objectively practice religion and declare their faith throughout their daily life.
The Free Speech Clause provides, “Congress shall make no law … abridging the freedom of speech.” (U.S. Const. amend. I.) In Kennedy, the Court notes that this Clause extends to “teachers and students,” who do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the complex issues between free speech and government employment arise because teachers and coaches are not merely seen as individuals, but also as government employees (and therefore, to some extent, representing the government they work for). A government employee that brings a First Amendment violation claim bears the burden of proof to exhibit that a government entity has encumbered his or her bona fide religious practices pursuant to a policy that is neither “neutral” nor “generally applicable.”
The Establishment Clause prohibits the government from “establishing” a national religion. (U.S. Const. amend. I.) The direct tension between the right to free speech and the need to remain neutral as a government employee—and, thereby, a representative of the government—elicits many different opinions from those grappling with the relationship between the Free Exercise, Free Speech, and Establishment Clauses (the “Clauses”) of the First Amendment.
So how does the Court navigate this intricate spectrum?
Relevant Procedural History
In analyzing the complex issues between government employment and the right to free speech, the United States Supreme Court reflects on previous decisions such as Pickering v. Board of Ed. of Township High School Dist. and Garcetti v. Ceballos. The Court first begins by analyzing the speech at issue. The inquiry centers around determining whether the speech at issue is conducted pursuant to the employee’s official government duties or merely as a “citizen addressing a matter of public concern.” If the latter, a second analysis begins so that courts may engage in a “delicate balancing of the competing interests surrounding the speech and its consequences.”
While addressing the District’s reliance on a 1971 Supreme Court case, Lemon v. Kurtzman, the Court spent significant time discussing the implications of Lemon and the District’s erroneous dependence on the case. The Lemon approach involved a magnified examination of a law’s purposes, effects, and potential complications with religion. The Supreme Court created an endorsement test that involved inquiries as to whether a “reasonable observer” would consider the government’s gestures “an endorsement of religion.” The District’s defense rested on the subjective conclusion that because Mr. Kennedy was a government employee, his actions of kneeling on the field constituted an influence of religion on students. Thereby, as an employer of Mr. Kennedy, the District could be viewed as secondhandedly endorsing a religion.
The Court Abandons Lemon
In Kennedy, the Supreme Court ultimately held in a 6-3 decision that the Free Exercise and Free Speech Clauses of the First Amendment doubly protect a government employee engaged in personal religious observances. Thus, a governmental entity, such as the District, prohibiting or restricting such religious observances was deemed unconstitutional. Although Mr. Kennedy’s expressions were still conducted on government property, his gestures constituted brief, quiet, personal observances; thus, terminating him based upon a phantom constitutional violation was inherently erroneous.
The Court discussed the Lemon approach and unambiguously clarified its “ambitiou[s], abstract, and ahistorical approach.” The Court states that it long ago abandoned Lemon and its undialectical endorsement test. Instead, the Court declared that the Establishment Clause be interpreted by “reference to historical practices and understandings” in implementing a harmonious reading of the Clauses, instead of a singular one.
To clarify any misconceptions, the Court did not release government employees to exercise religious observances in whatever manner they choose. The Court clarified ways that an employee could exercise religious beliefs under the Free Speech and Free Exercise Clauses without offending the Establishment Clause.
As illustrated in Kennedy, the Court continues to provide clarification on the limits of the Establishment Clause by moving away from the subjective approach set out in Lemon. In Kennedy, the Court adopts a new approach where religious activity in the public context is protected from the disfavor previously mandated by the Establishment Clause under Lemon. One effect of this case, however, is that school officials will be required to “up the ante” of observance in differentiating between private religious speech and proselytization by school officials.