Supreme Court to Decide Between Establishment and Free Exercise in Kennedy v. Bremerton School District


The Supreme Court granted cert. in Kennedy v. Bremerton School District, a case about a public school football coach who prayed on the fifty yard line immediately post-game. The Court refused review the first time the case was petitioned there, but granted it this time. The Court will decide whether Kennedy’s prayer is protected by the Free Speech and Free Exercise Clauses of the First Amendment, and whether that amendment’s Establishment Clause orders the public school to prohibit such prayer.

The outcome of the case depends on the facts of the coach’s prayer. The cases and briefs contain different descriptions of it. Here are some of them. Which one you choose determines which outcome the Court will give, a victory to the coach or a win for the school. The school won in the district court and in the Ninth Circuit, so presumably some Justices on the Court want to overturn that decision this time, having not done so the first time Kennedy asked for review.

The First Time Through

The Ninth Circuit

The Ninth Circuit issued an opinion in favor of the school district in this case in 2017, and that court refused to hear it en banc. The 2017 panel was Judges Dorothy Nelson, Milan Smith, and Morgan Christen. Judge Smith wrote the opinion as well as a concurrence. The circuit affirmed the trial court’s refusal to issue an injunction allowing Kennedy “to kneel and pray on the fifty-yard line in view of students and parents immediately after BHS football games” (p. 815).

Joseph Kennedy’s religion requires him to pray publicly at the end of football games. “He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers” (p. 816). Instead of agreeing to accommodations with the school that met the school’s goals for a public school teacher, Kennedy promoted a lot of media publicity for maintaining and increasing the participation in his prayers. The school placed him on administrative leave and later did not rehire him.

The school was worried that the public would perceive it as endorsing Kennedy’s religion, and urged him not to engage in “demonstrative religious activity” (p. 819). The opinion noted the school’s concern that players might participate because they were worried about losing their position on the team. The court was clear that “the relevant ‘speech at issue’ involves kneeling and praying on the fifty-yard line immediately after games while in view of students and parents.” (p. 825).

Kennedy filed his First Amendment and Title IX lawsuit in 2016, arguing that Bremerton retaliated against him for his free speech. He lost because the court ruled he was a public employee and Bremerton was allowed to worry about an Establishment Clause violation in the prayer. The court concluded Kennedy was speaking as a public employee, not a private citizen. Promoting prayer is not the right of a public employee, but the privilege of a private citizen.

Judge Smith wrote a special concurrence arguing that Bremerton’s actions were justified by the Establishment Clause. “An objective BHS student familiar with the relevant history and context would perceive Kennedy’s conduct to reflect school endorsement of religion, encouragement of prayer, and a preference for one particular faith,” which the Establishment Clause prohibits (p. 837).

The Ninth Circuit refused to hear this decision en banc, thereby leaving undisturbed the panel’s decision for the school.

The Supreme Court

In a cert. petition, Kennedy argued he “lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game.” He argued that the courts had violated all of the Supreme Court’s precedents on the First Amendment. In contrast, the response to the petition argued the “petition elides the facts and the fact-specific analyses of the courts below.”

The Supreme Court denied cert. But four Justices had something to say about that. Justice Alito, joined by Thomas, Gorsuch, and Kavanaugh, commented, saying at first that “important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.” They thought both the district court and the Ninth Circuit were “imprecise” about why Kennedy was fired. Because the factual record was incomplete, review was not permitted at that time.

The Justices also suggested that the Ninth Circuit had misinterpreted Garcetti, the Supreme Court’s case that interprets who a public employee is and what their First Amendment rights are. Alito wrote,

According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students. Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard. This Court certainly has never read Garcetti to go that far.

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way

That quotation gives you a good idea of what four Justices think about Kennedy’s prayer. They do raise a series of facts that are not at all present in the opinion itself. And I urge you not to miss the paragraph they ended with:

In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

We know from the recent Fulton case, where the Supreme Court unanimously ruled that Philadelphia had to ignore its antidiscrimination laws and allow a Catholic group to refuse to consider LGBTQs as foster parents, that Alito has long been eager to overturn Smith, which currently sets the law of the Free Exercise Clause. Joined by Thomas and Gorsuch, he explained why free exercise should give religious people a lot more protection than it does today. That should certainly get Kennedy the votes when the Court now hears the case. Will there be a new constitutional right for public employees to lead students in prayer?

Round Two

The District Court

Kennedy v. Bremerton then returned to the district court, where the court granted the school’s summary judgment motion and denied Kennedy’s. Both parties had moved for summary judgment on seven of Kennedy’s First Amendment and Title VII claims. Kennedy lost all of them.

The court ruled that “Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause” (p. 1238). A “reasonable observer would conclude the school was aware that a ‘distinctively Christian prayer’ was taking place and had chosen to allow it” (pp. 1238-39). “And indeed, whether Kennedy intended it or not, his prayers did have an impact: players joined Kennedy at the 50-yard line for years despite evidence that some would not have done so if Kennedy were not a coach.” (pp. 1236-37). The coercion occurred because Kennedy’s action had the potential to coerce students to stay popular with their coach by joining him in prayer. “Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy’s absence” (p. 1239). “Some students and parents expressed thanks for the District’s directive that Kennedy cease praying after games, with some noting that their children had participated in the prayers to avoid being separated from the rest of the team or ensure playing time” (p. 1229).

The district court found that “the risk of constitutional liability associated with Kennedy’s religious conduct was the sole reason the District ultimately suspended him” (p. 1231). And, on the Title VII claims, “there is no evidence that the District’s actions were motivated by anything other than a desire to avoid constitutional violations” (p. 1241). So the school won once again in the district court.

The Ninth Circuit

The Ninth Circuit affirmed the district court. The same three judges, Smith, Nelson, and Christen, were on this panel; Judge Smith again authored the opinion. The Ninth Circuit later reiterated the facts when it refused to hear the case en banc over dissents from some judges. Judge Smith repeated much of the opinion to clarify why the dissenting judges were wrong.

The reasoning was straightforward, concluding “BSD’s allowance of Kennedy’s conduct would violate the Establishment Clause; consequently, BSD’s efforts to prevent the conduct did not violate Kennedy’s constitutional rights, nor his rights under Title VII” (p. 1010). Smith repeated the facts from the earlier cases, explaining that this was not a private prayer, but a public prayer by a public employee promoted in the media and including the student players. Moreover,John Polm testified that he later became aware of a parent’s complaint that his son ‘felt compelled to participate’ in Kennedy’s religious activity, even though he was an atheist, because ‘he felt he wouldn’t get to play as much if he didn’t participate.’” (page 1011). They are clear that “Kennedy’s prayers were ‘verbal’ and ‘audible’” (p. 1013).

It was especially clear to Judge Smith that the courts had an important role in making sure the Establishment Clause was not violated in public schools. He cited the Supreme Court’s decisions about education and prayer. “That on-field prayer cannot be construed as personal and private in the context of Kennedy’s publicity leading up to it.” (p. 1018). “ Viewing this scene, an objective observer could reach no other conclusion than that BSD endorsed Kennedy’s religious activity by not stopping the practice” (p. 1018). It was also clear that Kennedy had refused more moderate accommodations of his religious practice.

In the en banc denial, Judge O’Scannlain took Kennedy’s side, joined by seven other judges. Those judges said the district court denied Kennedy the “right to engage in brief, personal prayer by himself on the field at the conclusion of football games” (n. 4), and that Kennedy had argued for a constitutional right to continue saying a “short, private, personal, prayer at midfield.”

Judge Smith gave a strong argument against O’Scannlain, saying that the judge

appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false. Although I discuss the events in greater detail below, the reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers. In fact, the record shows clearly that Kennedy initially offered silent, private prayers while on the job from the time he began working at BHS, but added an increasingly public and audible element to his prayers over the next approximately seven years before the Bremerton School District (BSD) leadership became aware that he had invited the players and a coach from another school to join him and his players in prayer at the fifty-yard line after the conclusion of a football game. He was disciplined only after BSD tried in vain to reach an accommodation with him after he (in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands. He advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result. As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media (pages 911-912) (emphasis added).

Smith provides a list contrasting O’Scannlain’s “unmoored claim[s]” with “what the record actually shows.” Smith thinks O’Scannlain is wrong that no one would believe the school district was endorsing Kennedy’s religious beliefs. And Smith keeps insisting that “Kennedy rejected any compromise” with the school.

More Cert. Petitions

The dispute about the facts of the case continues in its second trip to the Supreme Court. Kennedy’s lawyers describe him as “a public-school employee who says a brief, quiet prayer by himself while at school” and cannot be viewed as a government employee. They say the Ninth Circuit’s decision is a “triple threat to individual liberty and First Amendment values.” They argue the circuit was “using imagined Establishment Clause concerns to inflict real Free Exercise Clause damage. And the breadth of the opinion’s impact is staggering.”

The school replied that the prayers were not silent, quiet, or solitary. Instead, Kennedy was surrounded by coaches, players from his and opposing teams, as well as by members of the community. The offered accommodations would have allowed him personal religious devotion. They repeat the courts’ claim that Kennedy’s activities were coercive. “Because the petition relies on reimagined facts, it does not and cannot raise substantial legal issues worthy of this Court’s attention.”

In a statement issued after cert. was granted, the school district’s lawyers said:

“No child attending public school should have to pray to play school sports. No student should ever be made to feel excluded—whether it’s in the classroom or on the football field—because they don’t share the religious beliefs of their coaches, teachers or fellow students.”

What Will the Court Do?

The school district appears to have strong arguments that a public school cannot endorse religion, coerce students into participating in it, or lead the students in a religious service. The school district fought strongly for the Establishment Clause, arguing that the First Amendment does not allow it to employ a coach who publicly leads students in prayer. It has won those arguments four times, twice in the district courts and twice in the Ninth Circuit.

How many of the Justices are unhappy with that conclusion? Will Alito, Thomas, Gorsuch, and Kavanaugh ignore or weaken the Establishment Clause? Instead of following that clause, will they insist that Kennedy has a free exercise right to pray at work however he wants? The cases are about Kennedy’s public, group-leading prayer. Nonetheless, on the first cert. petition, they said the Ninth Circuit’s language “can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.”

Perhaps responding to the Court’s response to the cert. petition, the courts have clarified what happened. Kennedy was disciplined for a public, prayer-leading event that was inconsistent with the Establishment Clause.

But there are dissents from the en banc denial. And who knows how much free exercise protection the Justices want to give to a coach against a school that was trying not to violate the Establishment Clause. Alito et al. are huge supporters of free exercise.

We will wait to see if the Justices vote for Establishment or Free Exercise.

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