Supreme Court rules in favor of football coach who prayed on field after games

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[co-author: Jenny Lee]*

On Monday June 27, the Supreme Court issued their ruling in the case Kennedy v. Bremerton School District. (We previously reported on this case here, here, and here.) In a 6-3 decision penned by Justice Neil Gorsuch, the conservative majority held that the school district violated a coach’s First Amendment free exercise and free speech rights by disciplining the coach for praying at the 50-yard line immediately after games.

Considered a key test of the separation between church and state, the Kennedy case highlights the tensions among the First Amendment’s protections of free speech and religious expression and its prohibition against the establishment of religion by state actors, including public schools. This decision also marks the Court’s second major ruling this past week on religion and education, after the Court held in Carson v. Makin that a state violated the Constitution when it banned the use of public funds for students who attend private religious schools.

Consistent with recent Court decisions leveling government action over religious expression to other expression, Gorsuch wrote in Kennedy, “Respect for religious expressions is indispensable to life in a free and diverse Republic…Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.”

The majority stated that the school district violated the coach’s free exercise rights by applying a policy that was not neutral and generally applicable to other forms of post-game conduct (such as taking personal phone calls), but instead sought to restrict the coach’s prayer specifically because it was religious in nature.

In analyzing whether the school district violated the coach’s free speech rights, the majority applied a two-part test. First, did the public employee speak pursuant to their official duties, or as a private citizen addressing a matter of public concern? If the former, then the employee is generally not shielded from the employer’s control and discipline. In the latter case, the Court would apply a balancing test, weighing the employee’s free speech interests with the interests of the state employer in “promoting the efficiency of the public services it performs through its employees.” Under this two-part test, the majority determined that the coach’s prayer in fact constituted wholly private speech, and that the school district applied an “excessively broad” definition of government speech to restrict and discipline the coach for his conduct.

The majority also took issue with the school district’s argument that the district’s interest in avoiding an Establishment Clause violation outweighed the coach’s free speech and free exercise rights. While hearing oral arguments back in April, the conservative justices repeatedly criticized the school district’s reliance on the Establishment Clause, as well as the district’s attempt during oral argument to raise the issue of the coercive effect of the coach’s conduct on students. Here, Gorsuch dismissed a decades-old three-part balancing test (the Lemon test) used by the courts to determine Establishment Clause cases and rejected the coercion argument outright, reasoning that if the speech is private, then there is no coercion, and to restrict private religious speech based on its supposed coercive effects would constitute a violation of the First Amendment.

In a blistering dissent joined by Justices Stephen Breyer and Elena Kagan, Justice Sonia Sotomayor rebuked Gorsuch’s characterization of the coach’s prayer as “brief, quiet, [and] personal.” Asserting that the majority misconstrued the facts of the case, the dissent pointed to the record that showed the coach had led student athletes in “highly visible and demonstrative prayer” at the 50-yard line for years, inciting “severe disruption” to school events, concerned letters from parents about students who felt forced to take part in the prayers, and a media storm prompted in part by the coach’s outreach to local news outlets. The dissent also emphasized the fact that the district did not ban the coach from praying but informed him that “all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.”

More broadly, the dissenting justices took issue with the majority paying “almost exclusive attention” to the Free Exercise Clause protecting the coach’s religious expression at the expense of the Establishment Clause’s prohibition of state endorsement of religion.

The dissent highlighted the Court’s historical vigilance in monitoring public schools’ compliance with the Establishment Clause due to the central role public schools play in society and the state’s exertion of “great authority and coercive power” over children in schools. The dissent warned that this decision—along with the Gorsuch’s replacement of the Lemon test with a vaguer test based on “historical practices and understandings”—would upend decades of Court rulings that determined that school officials leading prayer is constitutionally impermissible.

Sotomayor concluded that the decision “elevates one individual’s interest in personal religious exercise, in the same exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”

The Kennedy decision has major implications for public school districts and public sector employers, who may need to review their policies and procedures governing the religious expression of their employees while on the job, and potentially that of students as well. This decision made clear that a “neutral and generally applicable” policy must be applied when restricting the conduct of public employees and may not single out religious expression for discipline. However, school districts and public employers still need to balance free speech and free exercise with Establishment Clause concerns, though Gorsuch’s opinion did not lay out an explicit test for determining whether a public institution violates the Establishment Clause based on a “historical” analysis.

We will continue to monitor the impact of this decision on schools and public sector employers and provide updates.

*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.

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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