June 30, 2022 US Supreme Court Expands Protections for Public Employees’ Religious Expression

On Monday, the United States Supreme Court issued its decision in Kennedy v. Bremerton School District.  In a 6-3 decision, the Supreme Court ruled that the Free Speech and Free Exercise clauses of the First Amendment to the United States Constitution protect a public school football coach’s right to lead a post-game, mid-field prayer.  According to the Supreme Court, the prayers offered by the coach were a form of private religious observance, which the employer had no authority to censor. 

Background of Kennedy v. Bremerton School District

Joseph Kennedy was a high school football coach employed by the Bremerton School District (the “District”).  After football games, Kennedy made it a practice to kneel and offer prayer at midfield with anyone who chose to participate.  The District directed Kennedy to cease this practice, on the theory that students might feel obligated to participate, and the District wished to avoid a perception of religious endorsement.  Kennedy continued the practice, and the District terminated his employment.  Kennedy filed suit under the Free Speech and Free Exercise clauses of the First Amendment.  Siding with the District, both the trial court and Ninth Circuit determined that the District maintained a compelling interest in prohibiting the prayers because allowing them to continue could violate the First Amendment’s Establishment Clause, which prohibits government endorsement or hostility towards any religion.  The lower courts concluded that allowing Kennedy’s prayers to continue could be seen as preference towards his religion.

The Supreme Court disagreed.  It concluded Kennedy’s post-game prayers were not “ordinarily within the scope of his duties as a coach,” and the “object” of the District’s decision was to prohibit a religious practice by a “private citizen.”  Prior to Kennedy, courts applied the three-prong test established in 1971 in Lemon v. Kurtzman, to determine whether a government activity or law violated the Establishment Clause. The Supreme Court, however, shifted away from over fifty years of jurisprudence by abandoning the Lemon test and adopting a new framework requiring courts to generally consider “reference to historical practices and understandings.”  The Supreme Court ultimately concluded that Kennedy satisfied his burden under the First Amendment by showing that the District “burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’”  Therefore, the Supreme Court determined, the District violated Kennedy’s First Amendment rights by impermissibly regulating his speech and restricting his religious practice.

What This Means

The Supreme Court’s Kennedy decision could have a broad impact on public entities.  It requires public employers to place a higher emphasis on employees’ right to religious expression when making employment decisions involving potentially protected religious activity and ultimately expands employees’ recognized First Amendment rights in the workplace.

It is too early to tell how lower courts will apply the Supreme Court’s new historical reference framework under the Establishment Clause.  With greater protections now afforded employees under the First Amendment, employment decisions in the future, particularly for public employers, will be difficult and complicated.  Employers are encouraged to consult with counsel before making employment decisions that involve religious practice implications.


AUTHORS

Anissa Elhaiesahar (USD School of Law, Class of 2023)
Matthew Mushamel
Fred Plevin