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June 27, 2022

Supreme Court Decides Kennedy v. Bremerton School District

On June 27, 2022, the U.S. Supreme Court decided Kennedy v. Bremerton School District, No. 21-418, holding that a football coach’s quiet prayers of thanks after three football games were protected under the Free Exercise and Free Speech Clauses of the First Amendment, and the Establishment Clause does not require the government to single out private religious speech for special disfavor.

Joseph Kennedy was a football coach at Bremerton High School who made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. The school prohibited him from doing so, and when he continued, placed him on paid administrative leave and declined to rehire him. Kennedy sued for violations of the First Amendment’s Free Speech and Free Exercise Clauses. The district court denied the claim, and the Ninth Circuit affirmed. After rehearing en banc was denied over the dissents of 11 judges, the Supreme Court granted certiorari and reversed.

In reversing, the Supreme Court first held that Kennedy had carried his initial burden of showing a violation of his rights under both the Free Exercise and the Free Speech Clauses. With respect to the Free Exercise claim, it was undisputed that Kennedy sought to engage in a sincerely motivated religious exercise, and that his exercise was burdened by a policy that was neither neutral toward religion nor a generally applicable rule, but was specifically targeted at religious expression. With respect to the Free Speech claim, the Court found that Kennedy was addressing a matter of public concern and engaging in private speech, not government speech.

Having found infringements of both rights, the Court held that the burden shifted to the government to justify the infringements. The Court declined to hold whether strict scrutiny, intermediate scrutiny, or a special standard for government-employee speech applied because it concluded that the school’s actions failed under any standard. The school’s primary argument was that it needed to suppress Kennedy’s religious speech to comply with the Establishment Clause. The Court rejected this argument and expressly rejected the Lemon v. Kurtzman, 403 U.S. 602 (1971) test and the endorsement test, which considered a law’s purposes, effects, and potential for entanglement with religion, or estimations of whether a reasonable observer would consider the government’s challenged action an endorsement of religion. Instead, the Court held that the Establishment Clause must be interpreted by reference to historical practices and understandings.

Here, the Court held that “learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.” The Court rejected the argument that any visible religious conduct by a teacher or coach should be deemed impermissibly coercive toward students. “In essence,” the Court wrote, “the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.” “In the name of protecting religious liberty, the District would have us suppress it.” The Court said it was “aware of no historically sound understanding of the Establishment Clause that begins to make it necessary for government to be hostile to religion in this way.”

Justice Gorsuch delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, and Barrett joined, and in which Justice Kavanaugh joined, except for Part III-B. Justices Thomas and Alito filed concurring opinions. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined.

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