Kneeling at the football field after games to offer a quiet personal prayer: whether such observances are protected under the US Constitution’s First Amendment? SCOTUS answers

Supreme Court of The United States

Supreme Court of The United States: While deliberating upon the instant matter, wherein the petitioner lost his job as a high school football coach in the Bremerton School District, after he knelt at midfield after games to offer a quiet personal prayer; the Court held that, the Free Exercise and Free Speech Clauses of the First Amendment protects an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression. The petitioner’s observances fall within the perimeters of the First Amendment, and therefore protected.

Background of the case: Joseph Kennedy [petitioner] began working as a football coach at Bremerton High School in 2008 and had established a personal tradition to offer a prayer of thanks at the conclusion of each game. Initially, Kennedy prayed on his own, but later some of the players started to join him. Eventually, Kennedy began incorporating short motivational speeches with religious references.

In 2015, Bremerton School District’s superintendent identified “two problematic practices” in which Kennedy had engaged- firstly, Kennedy had provided “inspirational talks” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of games”; and secondly, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated his involvement with the program”. Kennedy was directed to keep his practice as “non-demonstrative” as possible, which led to Kennedy ending his locker-room prayer with the players and his practice of incorporating religious references into his post-game motivational talks. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field post-game prayer; however, feeling upset that he had “broken his commitment to God” by not offering his own prayer, he turned his car around and returned to the field and walked to the 50-yard line and knelt to say a brief prayer of thanks.

It was stated that Kennedy offered his prayers during a period when school employees were free to attend to their personal matters – like checking mail or booking reservations at a restaurant etc. The school authorities disciplined him because it thought that Kennedy’s retention could lead a reasonable observer to conclude (mistakenly) that the school endorsed Kennedy’s religious beliefs.

Legal Trajectory: Kennedy sued in federal court, alleging that the Bremerton School District’s [hereinafter the District] actions violated the First Amendment’s Free Speech and Free Exercise Clauses. He also moved for a preliminary injunction requiring Bremerton to reinstate him. The District Court denied that motion, and the Ninth Circuit affirmed.

After the parties engaged in discovery, they filed cross-motions for summary judgment. The District Court found that the sole reason for the District’s decision to suspend Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his religious conduct after three games in October 2015. The District Court granted summary judgment to the District and the Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges.

Contentions: Joseph Kennedy contended that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. As per his submissions, The First Amendment Clauses work in tandem- where the Free Exercise Clause protects religious exercises (communicative or not), the Free Speech Clause provides overlapping protection for expressive religious activities.

Per contra, the District argued that Kennedy’s suspension was essential to avoid a violation of the Establishment Clause. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. To resolve that clash, the District reasoned that Kennedy’s rights had to yield.

Observations: The opinion of the Court was delivered by Justice Neil Gorsuch in which John Roberts, CJ., Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, JJ., joined. The majority pointed out that SCOTUS precedents permit a plaintiff to demonstrate a free exercise violation in multiple ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable”. Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny, under which the government must demonstrate its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

  • It was observed that Bremerton disciplined Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Kennedy’s brief prayer, Bremerton’s challenged policies were neither neutral nor generally applicable. By its own admission, the Bremerton sought to restrict Kennedy’s actions in part because of their religious character. Prohibiting religious practice was thus Bremerton School District’s unquestioned “object”. The majority also pointed out that Bremerton School District conceded that its policies were neither neutral nor generally applicable.

  • Noting the complexity associated with the interplay between free speech rights and government employment, the Court observed that when an employee ‘speaks as a citizen addressing a matter of public concern’, the First Amendment may be implicated and courts should proceed to a second step. At this step, courts should engage in ‘a delicate balancing of the competing interests surrounding the speech and its consequences’. “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?”. The Court noted that when Kennedy engaged in his prayers, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. “Mr. Kennedy’s prayers did not owe their existence to Mr. Kennedy’s responsibilities as a public employee”.

  • The majority pointed out that a natural reading of the First Amendment suggests that the Clauses have “complementary” purposes and not warring ones where one Clause is always sure to prevail over the others. It was also observed that the Establishment Clause in the First Amendment, must be interpreted by ‘reference to historical practices and understandings”.

“A government entity’s concerns about phantom constitutional violations do not justify actual violations of an individual’s First Amendment rights”. The majority observed that Respect for religious expressions is indispensable to life in a free and diverse Republic. However, in the instant case, the District sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. “The Constitution neither mandates nor tolerates that kind of discrimination”.

The Dissent: The dissenting opinion was filed by Justice Sonia Sotomayor and she was joined by Justices Elena Kagan and Stephen Breyer. The dissenting Judges noted that the Constitution does not authorize, let alone require, public schools to embrace conduct like the instance in the present case. “This Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment”.

  • The Judges pointed out that the petitioner had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. The majority also ignored the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the District stated that it was suspending Kennedy to avoid it being viewed as endorsing religion.

  • “The Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new ‘history and tradition’ test”. It was observed that while the majority reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise; but they also fail to acknowledge the unique pressures faced by students when participating in school-sponsored activities.

  • The dissenting Judges also noted the District Court’s observations regarding Kennedy generating media coverage by publicizing his dispute with the School in his social media posting and in his media appearances. The Judges noted the instances of commotion during Kennedy’s post-game prayer circle when members of the public rushed the field to join him, jumping fences to access the field and knocking over student band members. The District received calls from Satanists who ‘intended to conduct ceremonies on the field after football games if others were allowed to.’ The Judges also perused the series of directions passed by the District to the petitioner which revealed that they were happy to accommodate Kennedy’s desire to pray on the job, but in a way that did not interfere with his duties or risk perceptions of endorsement.

  • The dissenting Judges noted that if the instant matter is properly understood then this case is not about the limits on an individual’s ability to engage in private prayer at work. 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 religion to students as the public watched.

  • It was pointed out that government neutrality toward religion is particularly important in the public-school context given the role public schools play in our society. “The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny”. Accordingly, the Establishment Clause “proscribes public schools from ‘conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred’” or otherwise endorsing religious beliefs.

  • Students look up to their teachers and coaches as role models and seek their approval”- The Judges noted that players recognize that gaining the coach’s approval may pay dividends small and large. In addition to these pressures to please their coaches, players face “immense social pressure” from their peers especially when it comes to American high school football. The Judges pointed out the evidence which revealed that some students reportedly joined Kennedy’s prayer because they felt social pressure to follow their coach and teammates.

  • It was noted that Kennedy’s free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts. His right to pray at any time and in any manner, he wishes while exercising his professional duties is not absolute.

  • In their final observation, the dissenting Judges stated that Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in society. However, the majority’s decision elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.

Terming the majority decision to be “misguided”, the Judges stated that the decision creates a perilous path to force the States to entangle themselves with religion, with all the rights hanging in the balance. “As much as the Court protests otherwise, today’s decision is no victory for religious liberty

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state”.

[Kennedy v. Bremerton 2022 SCC OnLine US SC 10, decided on 27-06-2022]


*Sucheta Sarkar, Editorial Assistant has reported this brief

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