[co-author: Michael Ervin and Elleasse Taylor]*

Employers Should Reevaluate Policies on Religious Expression at Work in Light of Kennedy v. Bremerton School District and Carson v. Makin

With the commencement of school, public youth programs and 2022-23 budget cycles, governmental agencies should review two recent U.S. Supreme Court decisions in two cases that significantly alter the long-established balance between the Free Exercise Clause and Establishment Clause relating to Constitutional religious liberty. The First Amendment forbids any government ordinance or policy that either constitutes an endorsement of a religion or discriminates against sincere religious practice. The area of education has frequently been a battleground over the tension between these occasionally conflicting requirements. In back-to-back decisions involving schools, the Court took an expansive interpretation of religious expression. Public agencies will want to reevaluate their policies and practices relating to employees’ religious expression at work.

Kennedy v. Bremerton School District (Free Religious Speech)

In Kennedy v. Bremerton School District, the Court held that the Free Exercise and Free Speech Clauses protect individuals’ personal religious speech and conduct from government retaliation. The Court clarified that nothing in the Constitution mandates nor permits the government suppression of religious expression, even in public educational employment.

The case arose when petitioner Joseph Kennedy, who worked as a football coach at Bremerton High School, began praying at the end of games, with participation from some of the student athletes. Kennedy neither encouraged nor discouraged students from participating in these prayers. To avoid the appearance of religious endorsement, the Bremerton School District (District) instructed Kennedy to avoid any talks with students that included religious expression or prayer. However, Kennedy continued his prayers, prompting the District to place him on paid administrative leave and to prohibit him from participating in football activities.

Kennedy sued the District in federal court, alleging that its actions violated the First Amendment’s Free Speech and Free Exercise Clauses. The District Court held for the District, stating that Kennedy’s suspension was based on the District’s legitimate perceived risk of Constitutional liability under the Establishment Clause for Kennedy’s post-game prayers. The Ninth Circuit affirmed, agreeing that Kennedy’s speech qualified as government rather than private speech because his expression was during a time that he was generally tasked with communicating with students as a government employee.

The Supreme Court reversed the Ninth Circuit in a 6-3 decision, stating that Free Exercise and Free Speech Clauses worked in tandem to protect religious exercises and expressive religious activities, no matter the individual’s employer. To evaluate the connection between free speech rights and government employment, the Court established these two steps:

• First, the Court examined whether Kennedy’s prayers were given as an individual citizen relating to public concerns, speech that would be protected by the First Amendment, or whether the prayers were offered within his official duties, thus subject to employer control and discipline relating to Establishment Clause risks.
• Second, the Court assessed whether Kennedy’s speech interests were outweighed by the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The case contained many factual disputes about whether Kennedy offered his prayers in his capacity as a private citizen, or as government speech attributable to the District. But in citing past precedents, the Court explained that the real issue was whether Kennedy’s speech fell outside his scope of duties as a football coach (government employee). Since he did not speak pursuant to governmental policy or engage in any speech the District paid him to produce, the Court found his prayers outside the scope of his duties, even though they occurred on District property on District time. Furthermore, the Court noted that although Kennedy’s actions may have conflicted with the District’s Establishment Clause obligation to avoid religious entanglement, the clause neither forces nor requires government censorship of the religious speech. Historically, the Establishment Clause forced courts to draw a line between permissible private expression and impermissible speech or practices, a test outlined in the 1971 case Lemon v. Kurtzman. The current Court rejected the Lemon test, with Justice Gorsuch asserting that the test had been “long ago abandoned.” Instead, the Court turned to the history of the Establishment Clause and the intent of the Founding Fathers. Under that analysis, the Court concluded that Kennedy’s actions were permissible because he acted alone, did not coerce students to pray, and never punished players who opted out of prayers.

Courts have required careful separation between “young impressionable minds” and official religious expression, for example, in public invocations. However, this Court rejected the District’s argument that “any visible religious conduct by a teacher or coach should be deemed impermissibly coercive on students” because, historically, the Establishment Clause never supported such a conclusion. The Court balanced the Free Exercise and Free Speech Clauses and the Establishment Clause in this case by concluding that Coach Kennedy had the right to offer his post-game, mid-field prayer, and that allowing him to do so did not violate the Establishment Clause.

Carson v. Makin (Subsidies to Parochial Schools)

In a separate case, the Court ruled that a state cannot deny tuition assistance funding to private parochial schools based on the school’s religious character.

The case centered on Maine’s tuition assistance program for students living in sparsely populated areas where the school district cannot provide a public secondary school. To assist those students, the state program subsidizes tuition at private schools, either in-state or out-of-state. However, only “nonsectarian” private schools are allowed to participate, with religious schools ineligible to receive funds.

Some parents sued the state for state funds to send their children to religious schools. The lawsuit against the commissioner of the Maine Department of Education claimed that the “nonsectarian” requirement of the tuition assistance program violated the Free Exercise Clause and the Establishment Clause, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected petitioner’s claims, finding for the Commissioner; the First Circuit affirmed.

The Court reversed, finding that limiting tuition assistance to secular schools violated the Free Exercise Clause of the First Amendment. This ruling extends the precedent from two recent Supreme Court decisions.

• First, in 2017, the Court in Trinity Lutheran Church of Colombia, Inc. v. Comer held that a state could not deny grants to otherwise qualified nonprofit organizations based on their religious status.
• Second, in 2020, the Court in Espinoza v. Montana Department of Revenue, held unconstitutional Montana’s exclusion of religious schools from a program providing tax credits to donors of private school scholarships. The Espinoza Court held that states could not exclude schools from government aid programs based on the school’s religious status.

Following the Espinoza decision, some courts had dealt with state funding of parochial schools by determining whether state funding would simply go to a religious school per se or whether it would be used for religious purposes. The First Circuit in Carson v. Makin also made the distinction between the “status-based” restrictions struck down in Espinoza and the “use-based” restrictions present in the requirements of Maine’s program. The First Circuit had upheld similar restrictions where they merely bar public funding for religious purposes and “does not bar schools from receiving funding simply based on their religious identity.”

In the Carson v. Makin decision, the Court rejected the First Circuit’s distinction between “status-based” and “use-based restrictions,” concluding that both violate the Free Exercise Clause of the First Amendment. The Court reasoned that the Free Exercise Clause protects against “indirect coercion or penalties on the free expression of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450 (1988). This decision extended Free Exercise protection to require equal provision of public benefits to parochial schools, finding that government scrutiny of “whether and how a religious school pursues its educational mission” risks entangling the state with religion and “denominational favoritism.” The Court ruled that Maine could not operate the program to exclude otherwise eligible religious schools regardless of how the public program’s benefits and requirements are described.

Next Steps and Takeaways

Under Kennedy v. Bremerton School Dist., school district employees may exercise their personal religious expression on duty, on school premises, with students present. Public school districts have less ability to suppress the religious speech and expression of employees who, despite their governmental roles, are not always bound to the confines of their position. This ruling has broad implications for public employers, which should now tread more carefully in monitoring or regulating the religious speech or expression of public employees.

The Carson v. Makin decision further limits the ability of municipalities to deny funding to religious schools that would otherwise qualify for a neutral government programs for private education. This applies even where the funding would be used for religious purposes. The government is not forced to fund religious education, but where they subsidize private education, religious status cannot be used as a criteria of eligibility.

*summer associates

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