The widely reported Supreme Court case Kennedy v. Bremerton School District, No. 21-418 (S. Ct. June 27, 2022) warrants all the attention it has been getting. The Court’s penalty flag against the local Washington school district fortifies an ongoing enhancement of individual religious rights for public employees entitled to protection under the First Amendment to the United States Constitution. For private employers, the case will probably highlight religious freedom in a way that may catch employees’ attention, fuel workplace conversations that may involve religion, and increase requests for religious accommodation.
Even casual followers of the news likely know that in Kennedy, the Supreme Court ruled that a high school football coach could pray on the 50-yard line after a football game. Like most religious freedom cases, the specific facts matter—a lot. Readers of the full opinion and dissent will see that Justice Gorsuch for the Court and Justice Sotomayor in dissent focus heavily on the facts—and will see they view them a little differently. Critically, the Court’s opinion describes the coach engaging in personal prayer and focuses on the fact that there was no direct coercion of the students on the team or otherwise to participate in the prayer.
Lawyers will spend a lot of time with the Kennedy opinion because it describes the Free Exercise Clause of the First Amendment in new ways and expressly changed the test for when a public body violates the Establishment Clause. The school district had argued that the coach’s prayers created a perception of endorsement of religion by the school district. In no uncertain terms the Court disagreed and determined that “endorsement” must be evaluated in reference to “historical practices and understandings.” Government coercion of a religious belief would violate the Establishment Clause, but the Court, as mentioned above, found there was not actual coercion by the coach. Moreover, the Court’s ruling expressly referred to religious speech as having “double protection” under the First Amendment—and the Court is on the watch for hostility to speech simply because it is religious.
Much more is to be written on Kennedy and how extensively it and other recent Supreme Court decisions on religion will require changes in the way public employers approach religious issues. For now, public employers (schools and other governmental entities) should:
- Ensure that if refusing religious accommodations or taking action for employee religious activities because of concerns about violating the Establishment Clause, that the reasoning is very clear and consistent with a historical practice or understanding. If a public entity is relying on concerns about the Establishment Clause to take action against an employee’s religious activity, it probably needs to show how the action actually coerces others or undertake a deep dive on what else might be a historical practice or understanding that might relate to the situation.
- Review policies concerning religious speech or expression and make sure that standards and procedures are designed to reflect the standards the Court is now requiring.
- Consider training supervisory and human resources staff to ensure that their actions align with the changing and nuanced standards when addressing employee religious issues. It is understandably tempting for managers to be concerned about the intersection of religion in the workplace, but knee-jerk reactions asserting that an employee’s acts are creating Establishment Clause problems may create legal risk.
All employers should expect that the Court’s focus on individual religious freedom will play out in the workplace. Private employers, as well as public employers, must continue to ensure that they do not discriminate based on religion and address religious accommodation requests consistently with legal standards. Employment Law in Motion’s June 16, 2022 post, Accommodating Religious Beliefs in a ‘Post-pandemic’ Workplace, has helpful information about broadly applicable accommodation standards. Any actions perceived as “hostile” toward religion are more likely than ever to create legal risk and exposure.