The U.S. Supreme Court has held in favor of a former high school football coach in western Washington who lost his job after kneeling to pray on the 50-yard line after games. Kennedy v. Bremerton School Dist., No. 21–418 (June 27, 2022).
In reversing the Ninth Circuit, the Court held the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in personal religious observance from government reprisal. It held that the Constitution neither mandates nor permits the government to suppress such religious expression.
The matter involved Joseph Kennedy, a former Bremerton High School assistant football coach, who would kneel to pray, by himself, at the 50-yard line at the completion of football games.
The Court leaned on its holding in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, as the Court held, teachers and coaches are also government employees paid, in part, to speak on the government’s behalf and to convey its intended messages. Accordingly, the Court held that, to account for the complexity associated with the interplay between free speech rights and government employment, a two-step inquiry must occur.
The first step, the Court explained, involves an inquiry into the nature of the speech at issue. Here, did Kennedy offer his prayers in his capacity as a private citizen, or did his prayers amount to government speech attributable to the District? Kennedy was not instructing players, discussing strategy, or any other actual work that the District paid him to produce as a coach, the Court noted. The Court held that the timing and circumstances of his prayers, during the postgame period when coaches were free to attend brief personal matters and students were engaged in other activities, confirms that Kennedy did not offer his prayers while acting within the scope of his duties as a coach.
The Court said the second step requires that the government must prove its interests as an employer outweigh an employee’s private speech on a matter of public concern. The District, like the Ninth Circuit below, insisted that Kennedy’s right to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation. The District admitted that it sought to restrict Kennedy’s actions, at least in part, because of their religious character. The District explained that it could not allow an on-duty employee to engage in religious conduct, even though it allowed other on-duty employees to engage in personal, secular conduct. The District’s performance evaluation after the 2015 football season advised against hiring Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement from the District was not applied in an evenhanded way. The Court held that the District thus conceded its policies were neither neutral nor generally applicable.
Thus, the Court held, “Respect for religious expressions is indispensable to life in a free and diverse Republic.” Here, the Court noted, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances, even as it allows comparable secular speech. The Court held, “The Constitution neither mandates nor tolerates that kind of discrimination.”