A school district in the state of Washington claimed a coach’s on-field, postgame prayers violated the First Amendment’s Establishment Clause. In a 6–3 decision handed down in June of 2022, the United States Supreme Court ruled against the district, stating that “a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.”

Through this ruling, the Court also struck down a controversial, decades-old judicial test created by a 1971 Court decision addressing Establishment Clause cases.

This article will further explore the ramifications of this decision, and what it means for religious liberty.

In 2008, Joseph Kennedy began working as a football coach at Bremerton High School in Bremerton, Washington, after nearly two decades of service in the Marine Corps.

Like many other football players and coaches across the country, Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. In his prayers, Kennedy 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.”

After players and coaches shook hands at the end of each game, Kennedy would offer his prayers by taking a knee at the 50-yard line and praying “quietly” for “approximately 30 seconds.”

Initially, Kennedy prayed on his own. But over time, some players asked whether they could pray alongside him. Kennedy responded by saying, “This is a free country. You can do what you want.” The number of players who joined Kennedy eventually grew to include most of the team, at least after some games. Players also invited players from the other teams to join them. Over time, Kennedy began mixing motivational messages with the prayers when players were present.

For more than seven years, no one complained to the Bremerton School District (the “district”) about Kennedy’s prayer activities. The district’s superintendent first learned of them in September of 2015, and immediately sent Kennedy a letter instructing him to cease praying on school property following football games.

Kennedy initially chose to end his prayer activities, then hired an attorney after sensing he had “broken [his] commitment to God.” The attorney wrote on Kennedy’s behalf to school officials, informing them that, because of his “sincerely-held religious beliefs,” Kennedy felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. The letter asked the district to allow Kennedy to continue that “private religious expression” alone.

The district rejected this request and issued Kennedy an ultimatum forbidding him from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.” The district did so because it judged that anything less would lead it to violate the First Amendment’s Establishment Clause.

Kennedy prayed briefly and silently after the October 16, 2015, game and was joined by both players from the other team and community members. At the end of the next football game on October 23, 2015, Kennedy prayed at the 50-yard line and was joined by no one. After the next game on October 26, 2015, Kennedy prayed again, and while he was praying, other adults gathered around him on the field.

Shortly after the October 26 game, the district placed Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in . . . football program activities.”

In a letter explaining the reasons for this disciplinary action, the superintendent criticized Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games on October 16, 23, and 26. The letter did not allege that Kennedy performed these prayers with students, and it acknowledged that his prayers took place while students were engaged in unrelated postgame activities.

In an October 28, 2015, Q&A document provided to the public, the district admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.”­

The Q&A also acknowledged that Kennedy “had complied” with the district’s instruction to refrain from his “prior practices of leading players in a post-game prayer immediately following games.” But the Q&A asserted that the district could not allow Kennedy to “engage in a public religious display.” Otherwise, the district would “violate the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “District [as] endors[ing] . . . religion.”

While Kennedy received “uniformly positive evaluations” every year from the district, he received a poor performance evaluation after the 2015 season ended.

The evaluation advised against rehiring Kennedy on the ground that he “failed to follow District policy” regarding religious expression and “failed to supervise student-athletes after games.” Kennedy did not return for the next season.

After these events, Kennedy sued in federal court, alleging that the district’s actions violated the First Amendment’s Free Speech Clause, as well as its Free Exercise Clause. The federal district court and a court of appeals both ruled against Kennedy. The United States Supreme Court agreed to hear the case.

The Court began its opinion by noting:

The Supreme Court noted that a plaintiff may carry the burden of proving a free exercise violation in two ways.

First, the plaintiff may carry the burden by showing that “official expressions of hostility” to religion accompany laws or policies burdening religious exercise. In such cases the courts will “‘set aside’” such policies without further inquiry.” To illustrate, in 2018, the Supreme Court overturned a Colorado Civil Rights Commission ruling fining a Christian baker for refusing to bake a cake for a same-sex wedding because of hostility to religion. One of the commission members had referred to Christianity as “irrational” and comparable to slavery and the holocaust. Masterpiece Cakeshop v. Civil Rights Commission, 138 S.Ct. 1719 (2018).

Second, the plaintiff may carry the burden by showing that a government entity has burdened his or her sincere religious practice pursuant to a policy that is “not neutral” or “generally applicable.” Should a plaintiff make such a showing, the Supreme Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by “a compelling state interest and was narrowly tailored in pursuit of that interest.”

The Court concluded that Kennedy met this second method of proving a violation of the Free Exercise Clause:

Kennedy also asserted that the district’s restrictions on his religious activities amounted to an unconstitutional violation of the First Amendment’s Free Speech Clause.

The Court asked, “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?” Only if the latter existed would the prayers be subject to government prohibition. The Court concluded:

[I]t seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the . . . prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.

The timing and circumstances of Mr. Kennedy’s prayers confirm the point. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands.

The Court concluded that for the district to prevail, it had to show that its restrictions on Kennedy’s protected rights “serve a compelling interest narrowly tailored to that end.” And this it could not do.

The Court concluded:

Respect 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 the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.

Perhaps the most significant development from this case was the Court’s repudiation of the so-called “Lemon test,” named after a 1971 ruling by the Supreme Court. Lemon v. Kurtzman, 403 U.S. 602 (1971). In the 1971 decision, the Court articulated a three‑pronged test for evaluating the constitutionality of government action under the Establishment Clause:

This is the test that state and federal courts have frequently applied in evaluating whether or not a particular governmental accommodation of religion violates the Establishment Clause.

In the case involving Kennedy, the Supreme Court made these observations about the Lemon test:

The Court continued:

This decision reinforces free speech and free exercise protections for individuals who work in government positions.

But perhaps of greatest significance regarding this decision is the overturning of the Lemon test. Many religious practices have fallen victim to the Lemon test over the past several decades that would have been tolerated if not celebrated by the more accommodating analysis announced by the Supreme Court in the Kennedy case. This outcome enhances religious liberty protections going forward.

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022)

A “nonsectarian” requirement included with a tuition assistance program offered in Maine violated the First Amendment’s Free Exercise of Religion Clause, the United States Supreme Court ruled last month.

The 6–3 decision in Carson v. Makin may make it easier for religious schools nationwide, at least in some cases, to benefit from financial aid made available to use at other public and private schools.

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition.

Most private schools are eligible to receive the payments, so long as they are “nonsectarian,” meaning the schools are not religious in nature. The requirement raised two questions: Does such a restriction violate the First Amendment’s Free Exercise Clause? And does the absence of such a restriction violate the First Amendment’s Establishment Clause prohibiting state sponsorship of religion?

The Supreme Court concluded the presence of the requirement did violate the Free Exercise Clause, while also finding the absence of the requirement would not violate the Establishment Clause.

The Court said:

In reaching its decision, the Court relied on two of its previous decisions—Trinity Lutheran and Espinoza.

In Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity.

The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the department denied funding on the ground that the center was operated by a church. The Court deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Such discrimination, the Court said, was “odious to our Constitution” and could not stand.

In Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020), the Supreme Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” violated the First Amendment’s Free Exercise of Religion Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.

The Court observed that “a State need not subsidize private education [but] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court concluded:

The Court concluded in Maine’s Carson case:

What is the importance of this case? Most importantly, it will allow religious schools nationwide, at least in some cases, to benefit from financial aid made available to other schools (i.e., public and private secular schools).

Religious schools cannot be excluded from such aid solely on the basis of their religious status. As the Court concluded, religious schools are “members of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lu­theran).

This case may contribute to a greater degree of school choice, depending on current and future state-enabling legislation.

Carson v. Makin, 596 U.S. ____ (2022)