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.
The Supreme Court addresses Free Speech and Free Exercise Clauses
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:
Under this Court’s precedents, a plaintiff bears certain burdens to demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries these burdens, the focus then shifts to the defendant to show that its actions were nonetheless justified and tailored consistent with the demands of our case law.
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:
In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. . . [and t]he District further explained that it could not allow “an employee, while still on duty, to engage in religious conduct (emphasis added). Prohibiting a religious practice was thus the District’s unquestioned object. The District candidly acknowledged as much . . . conceding that its policies were “not neutral” toward religion.
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.
The Lemon test
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:
- First, the statute must have a clearly secular legislative purpose;
- Second, its principal or primary effect must be one that neither advances nor inhibits religion; and
- Third, the statute must not foster an excessive governmental entanglement between church and state.
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:
In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. . . .
[T]he “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. . . .
The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators. . . . This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “perceptions” or “discomfort.” . . . An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purchase from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”
The Court continued:
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accord with history and faithfully reflect the understanding of the Founding Fathers.”
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)