Joseph Kennedy was employed as a high school football coach in the Bremerton School District in Washington State. After the conclusion of each football game, Kennedy walked to the 50-yard line of the field and prayed. According to Kennedy, in his post-game moment of prayer, he sought to express gratitude for “what the players had accomplished and for the opportunity to be part of their lives through the game of football.” Kennedy conducted his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying quietly for approximately 30 seconds. He prayed in plain sight of students, faculty, and others at games, and sometimes players on their own initiative joined him, as did some spectators. Although Kennedy initially prayed on his own, over time some players asked whether they could pray alongside him. Kennedy told the players that they could do whatever they wanted, and he claimed that he neither encouraged nor discouraged other players from joining him.
Bremerton School District, a public entity, directed him to stop his practice based on the District’s concerns about violating principles of separation of church a state. Kennedy challenged this directive on the basis of his First Amendment rights to engage in religious expression. He asserted that the constitutional separation of church and state principles did not go so far as to require the District to direct him to stop his practice or discipline him if he refused. Kennedy sued his former employer after he refused to abide by the District’s directive that he stop kneeling at the 50-yard line after games and engaging in a brief prayer.
In this case, the U.S. Supreme Court had to decide two central issues: (1) whether Kennedy’s prayer took place in a context in which the District was entitled to control his speech as “government speech,” i.e., whether it constituted speech pursuant to Kennedy’s “official duties”; and (2) “whether, assuming that such religious expression is private and protected . . . the establishment clause nevertheless compels public schools to prohibit it.” The District argued that the need to avoid an establishment clause violation overrode Kennedy’s expression rights. The U.S. Supreme Court held, in a majority opinion written by Justice Gorsuch, in favor of Kennedy on both of these questions.
With respect to the free speech issue, the Court determined that Kennedy’s prayers at games did not constitute speech pursuant to his “official duties” as a coach. Thus, the prayers were not “government speech.” The Court reasoned that when Kennedy conducted his prayers, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He was “not instructing players, discussing strategy, encouraging better on-field performance, or engaging in any other speech the District paid him to produce as a coach.” According to Justice Gorsuch, Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. The Court’s reasoning suggests that if Kennedy did incorporate religious expression more directly into his work with players, the result could have been different.
Because Kennedy’s prayer constituted his private expression and not “official duties” speech, the Court went on to consider whether a balancing of interests favored the District, in particular whether the District’s concern about avoiding a violation of the establishment clause justified the actions as to the Kennedy. The Court found that Kennedy’s prayers did not raise establishment clause concerns, and thus that the District’s balancing arguments lacked merit. The District, the Court determined, essentially overreacted to concerns about separation of church and state, and had no other valid reasons for responding to Kennedy’s speech the way it did. To reach this conclusion, the Court made another significant determination of constitutional law by interpreting the establishment clause to have weaker effect than many courts have interpreted it to have. The Court described that courts should use a test guided by “reference to historical practices and understandings.” Under this standard, Kennedy’s personal prayer, which did not constitute the “government speech” of the District, did not threaten an establishment clause violation. The Court also found that based on the evidence in the case record, Kennedy’s prayer did not coerce students with regard to religion.
With respect to the free exercise issue, the Court held that the District’s response to Kennedy’s actions violated the free exercise clause. The Court found that the District, by forbidding Kennedy’s personal religious conduct at games but allowing similar secular personal conduct, was targeting Kennedy’s religious practice. The Court found that the District‘s reasons for its response did not satisfy strict scrutiny (or even a less stringent standard). As described above, the District argued that it needed to stop Kennedy from praying in front of game participants in the way he did, because allowing him to continue would result in a violation of the First Amendment’s establishment clause. The Court disagreed, and opined that Kennedy’s conduct did not threaten such a violation.
Kennedy v. Bremerton School District is an important decision for a few reasons. First, it dictates that the same general framework for public employee free speech law continues to apply. In sum, an employee speaking on a matter of public concern, that is outside of official duties, has First Amendment protection if the speech survives the applicable balancing test of interests, which courts test on a case-by-case basis. But in the particular context of employee religious expression, public employers are going to have to consider those speech rights to be enhanced based on how the majority in Kennedy articulated the applicable tests.
Second, this case dictates that public employers in cases of religious expression must also consider whether employee rights under the free expression clause of the First Amendment come into play. If the expression at issue infringes a neutral workplace rule of general applicability, then employers will have a better chance of enforcing the rule notwithstanding free exercise concerns. But if the public employer seeks to target religious speech, e.g., because the employer is concerned about separation of church and state principles, then the showing the employer makes will need to be stronger. An employer will have to apply establishment clause law as described in the Kennedy opinion.
The Kennedy v. Bremerton opinion does leave open that actual coercion of students to adopt religious practices could present a different scenario. The same can be true when the speech at issue does constitute “official duties” speech of the employee.