New SCOTUS Case Augurs Toward More Prayer in Public Employment Settings

Sherman & Howard L.L.C.

Sherman & Howard L.L.C.

The U.S. Supreme Court issued a blockbuster school prayer decision Monday in Kennedy v. Bremerton School District. The case involved a public high school football coach who was fired for praying on the field after each game, an issue that has been litigated with a surprising frequency over the years. Coach Kennedy argued that his discharge violated his First Amendment rights to free speech and the free exercise of religion. The Court ruled 6-3 in Coach Kennedy’s favor, with Justices Kagan, Breyer, and Sotomayor dissenting.

While the majority and dissent argued mightily over what facts were in play, the reach of the Kennedy decision turns on the majority opinion’s recitation of those facts, as they are the basis for the decision. According to the majority opinion, Coach Kennedy prayed on the 50-yard line of the high school’s field after every football game. His moment of prayer was brief and quiet. He did not coerce his players or staff to participate, and there was no evidence that anyone felt coerced to participate. The prayer took place at a moment in time when Coach Kennedy did not have coaching responsibilities to his team—a sort of transition time between the end of the game and when he would talk to his team about that game. When initially confronted by the Bremerton School District about this (and other prayer-related activities), Coach Kennedy offered to wait until the players had left the field to kneel and offer a brief prayer of thanks on the field.

The Bremerton School District subsequently issued Coach Kennedy an ultimatum that effectively prohibited him from any prayer on the field or in front of players and staff. The district’s stated, and in some respects defensible, concern was that Coach Kennedy’s post-game prayer could easily be construed by observers as a government endorsement of prayer, which could violate the Establishment Clause of the First Amendment. Thus, the school district recognized the sometimes-inherent conflict between the First Amendment’s free exercise of religion and free speech clauses on the one hand and its prohibition against government support of religion under the establishment clause.

Coach Kennedy continued to pray after games and timed his brief prayers for when players were engaged in other school traditions, such as singing the school’s fight song to their fans. Ultimately, the district gave Coach Kennedy a negative performance appraisal for failing to follow district policy, which advised against rehiring him for the next school year.

In a lengthy opinion, the majority held that the district violated Coach Kennedy’s rights to free speech and to free exercise of religion. The dense opinion places new glosses on several First Amendment lines of analysis and states emphatically that it is overruling a decades-old precedent whose previous demise was a subject of much debate. Most importantly, the Court held that a public entity’s mere fear that a religious practice might violate the Establishment Clause does not automatically trump a public employee’s exercise of religious expression and speech.

While the decision is extremely fact-driven, there are a few takeaways for public sector employers such as the following:

  • A public employer may not prohibit an employee’s religious expression or protected speech based on a fear that others will interpret that expression as being state sanctioned;
  • A public employer cannot prohibit an employee’s religious expression or protected speech simply because it occurs on public property;
  • A public employer may be able to restrict or accommodate an employee’s religious expression or protected speech if it is demonstrably coercive—that is, if the employee’s religious expression or protected speech has the actual effect of coercing others to participate in that behavior; and,
  • A public employer may be able to restrict or accommodate an employee’s religious expression or protected speech during actual working time.

The Kennedy decision is sweeping in its analysis, while limited by its facts.  One wonders what happens when a public-school principal, while taking a coffee break, walks into an active classroom or the teachers’ lounge, takes a knee, and engages in a brief prayer. This is just one of countless factual permutations public employers may face. They are complicated, require constitutional nuance, and will almost always require advice from legal counsel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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