Coach’s Post-Game Prayer on Football Field Protected by the First Amendment – Lexology

Kennedy v. Bremerton School District, 142 S. Ct. 2407 (June 27, 2022)

In the most significant case to address the school/religion balance in at least two decades, a six-member majority of the U.S. Supreme Court in Kennedy v. Bremerton Sch. Dist.,, held that the Free Exercise and Free Speech Clauses of the First Amendment protected high school football coach Joseph Kennedys personal religious observance after a football game from restriction by his employer, the Bremerton School District.

Mr. Kennedy engaged in what the Supreme Court found to be a sincerely motivated religious exercise involving giving thanks through prayer briefly on the playing field at the conclusion of each game he coaches. But the school district, citing concerns about violating the First Amendments Establishment Clause, as interpreted by the Supreme Courts endorsement analysis in Lemon v. Kurtzman, 403 U.S. 602 (1971), suspended Mr. Kennedy.

In a majority opinion written by Justice Neil Gorsuch, the Supreme Court held that the suspension violated Mr. Kennedys rights under the Free Exercise and Free Speech Clauses. The Court explained that unlike earlier school prayer cases like Engel v. Vitale, 370 U.S. 421 (1962), and School District of Abington Township v. Schempp, 374 U.S. 203 (1963), [t]he contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. Mr. Kennedys prayers were not publicly broadcast or recited to a captive audience, students were not required or expected to participate, and the prayers were made after the games ended, when Mr. Kennedy was no longer acting within the course and scope of his employment. In short, [t]here is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension.

In the absence of such coercion, the school district went too far. As the majority put it, [w]e are 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. Erroneously relying on the Lemon test, the districts actions 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 Constitution, Justice Gorsuch concluded, neither mandates nor tolerates that kind of discrimination.

Justices Clarence Thomas and Samuel Alito filed concurring opinions. Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Stephen Breyer and Elena Kagan joined. The dissent criticized the majority for giving almost exclusive attention to the Free Exercise Clauses protection of individual religious exercise, while giving short shrift to the Establishment Clauses prohibition on state establishment of religion. The dissent also faulted the majority for overrul[ing] Lemon v. Kurtzman, which calls into question decades of subsequent precedents.

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Coach's Post-Game Prayer on Football Field Protected by the First Amendment - Lexology