Updated: Jul 19
On Monday, the Supreme Court ruled in favor of Joseph Kennedy, a high school football coach that lost his job due to his continuous praying post-game at midfield. In a 6-3 decision, the majority, led by Justice Gorsuch, held that the Free Exercise and Free Speech Clauses of the First Amendment protect Kennedy’s conduct.
Joseph Kennedy was a coach for the football team at Bremerton High School. Kennedy is a practicing Christian and performed post-game prayers at the fifty-yard line immediately after football games concluded. The prayers typically lasted around thirty seconds. Initially, Kennedy would pray alone. In later post-game prayers, Bremerton high school students and eventually players from opposing teams joined him.
In September 2015, the Bremerton School District sent Kennedy a letter asking that Kennedy avoid talks with students that “include religious expression, including religious prayer,” as the school district wanted to avoid violating the Establishment Clause.
After halting the practice for a brief period, on October 14, Kennedy sent a letter to school officials informing them that he would resume offering a “post-game personal prayer” at midfield. On October 16, Mr. Kennedy offered a prayer at midfield after the game, and players from the opposing team and members of the community joined him. Subsequently, after the football game on October 23, Kennedy again knelt in prayer at midfield. This time, nobody joined him. Finally, after the football game on October 26, Kennedy knelt at midfield while other adults joined him on the field.
After the October 26 football game, the Bremerton School District placed Kennedy on administrative leave due to Kennedy engaging in “public and demonstrative religious conduct while still on duty as an assistant coach.” Later, Bremerton School District did not rehire Kennedy for the following season.
Justice Gorsuch, writing for the majority, views this case through the lens of the Freeh Exercise Clause and Free Speech Clause. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”
Free Exercise Clause
The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise” of religion. A violation can be void when “a government entity has burdened [Kennedy’s] sincere religious practice pursuant to a policy that is not ‘neutral’ or generally applicable.’”
Justice Gorsuch found that Kennedy’s religious beliefs are unquestioned. Thus, he turned to whether Bremerton School District’s policy was neutral or generally applicable.
In finding that the policies were not neutral nor generally applicable, Justice Gorsuch reasoned that they were not neutral because Bremerton School District “sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.” In turn, the policies were not generally applicable because Bremerton School District “advised against rehiring Mr. Kennedy on the ground that he ‘failed to supervise student-athletes after games’” due to Kennedy’s postgame prayers. However, Bremerton School District permitted other coaches to forgo supervising students for the coaches to visit friends and family. Thus, Bremerton School District did not apply its supervisory requirement to all coaches.
Free Speech Clause
In analyzing the Free Speech Clause, Justice Gorsuch focuses on the following question: “[d]id Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the [Bremerton School] District?” Generally, the Free Speech Clause does not protect government speech.
The majority found that Kennedy was offering his prayers in Kennedy’s capacity as a private citizen. In answering the question, Justice Gorsuch focuses on the prayers after the three football games in October, when Kennedy had halted his motivational postgame talks. Viewing Kennedy’s actions after the football games in October, Justice Gorsuch found that Kennedy “was not seeking to convey a government created message. He was not instructing players, discussing strategy or encouraging better on-field performance, or engaged in any other speech the [Bremerton School] District paid him to produce as a coach.” Thus, Kennedy’s speech was not government speech attributable to Bremerton School District.
After analyzing Kennedy’s speech through the Free Exercise Clause and Free Speech Clause, Justice Gorsuch turned to the strict scrutiny test to determine whether Bremerton School District’s restrictions on Kennedy’s speech “serve a compelling interest and are narrowly tailored” to the interest.
Justice Gorsuch rejected Bremerton School District’s noted interests, including Bremerton School District’s interest in not violating the Establishment Clause and not coercing students to pray. In dispensing of Bremerton School District’s interests, Justice Gorsuch noted that “Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.” Again, Justice Gorsuch focused on the three October football games when Bremerton High School players did not participate in the prayers; thus, they could not feel coerced to pray. “[I]n no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.”
Therefore, in finding that there is not a compelling government interest, the majority ruled in favor of Mr. Kennedy, noting “[r]espect for religious expressions is indispensable to life in a Free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through spoken word or a bowed head.”
Justice Sotomayor, with whom Justice Breyer and Justice Kagan join, dissenting, frame the question differently. Rather than isolating the prayers after the three October football games, the Justices review all of Kennedy’s conduct. “This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religious to students as the public watched.”
With that question in mind, Justice Sotomayor turns to the Establishment Clause, which “prohibits States from adopting laws ‘respecting an establishment of religion.’” Turning to public schools, Justice Sotomayor notes that states cannot use “its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.”
Thus, Justice Sotomayor finds that an Establishment Clause violation is clear. Specifically noting that Coach Kennedy was the face and voice of Bremerton School District during football games and that Kennedy was speaking from the location he met the opposing to shake hands. “Permitting a school coach to lead students and others he invited onto the field in prayer at a predictable time after each game could only be viewed as a postgame tradition occurring ‘with the approval of the school administration.’”
Further, Justice Sotomayor recognized that Kennedy’s practice was coercive for athletes as players depend on Kennedy for benefits, including letters of recommendation.
In conclusion, Justice Sotomayor writes that the Free Exercise Clause “serves as ‘a promise from our government,’ while the second erects a ‘backstop that disables our government from breaking it’ . . . . [t]oday the [Majority] once against weakens the backstop.”
Overall, Justice Gorsuch and the majority chose to analyze isolated instances that did not include Kennedy giving motivational talks with religious references. Thus, Bremerton High School football players were not involved. Otherwise, Kennedy’s conduct could have run afoul of the Establishment Clause.
The ruling is an unsurprising ruling from the current court, as the five most pro-religion justices sit on the current court. Even though this ruling appears to be narrow, expect more challenges to the Free Speech, Free Exercise, and Establishment Clauses in the future.