(Adapted with permission from an article by Lisa Soronen, State and Local Legal Center statelocallc.org.)

In June in Kennedy v. Bremerton School District the U.S. Supreme Court held 6-3 that the First Amendment protects an assistant football coach who “knelt at midfield after games to offer a quiet prayer of thanks.”

The Supreme Court also expressly overruled Lemon v. Kurtzman (1971) which focused on the Establishment Clause’s protections against government establishing an official religion or preference of one religion over another. Lemon “called for an examination of a law’s purposes, effects, and potential for entanglement with religion. 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.’”

In its place the Court adopted a view of the Establishment Clause, that “accor[ds] with history and faithfully reflec[ts] the understanding of the Founding Fathers.” The Court focused on whether the district’s policy restricted a sincere religious practice and was neutral. Court also found insufficient evidence students were coerced to pray.

The majority and the dissent disagree about the facts of this case. Both sides agree the assistant high school football coach had a long history of praying alone and with students at midfield after football games and praying with students in the locker room pregame and postgame.

When directed to, Kennedy stopped the latter practice. But he told the district he felt “compelled” to continue offering a “post-game personal prayer” midfield. The district placed Kennedy on leave for praying on the field after three particular games.

Justice Gorsuch, writing for the majority, concluded Kennedy was able to make the initial showing that the school district violated his free exercise of religion and free speech rights by not allowing him to pray on the field after games.

Regarding Kennedy’s Free Exercise Clause claim, the Court concluded the school district burdened his sincere religious practice pursuant to a policy that is neither “neutral” nor “generally applicable.” The district’s actions weren’t neutral because “[b]y its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.” The district’s actions weren’t “generally appliable” either the Court concluded. While the district stated it refused to rehire Kennedy because he “failed to supervise student-athletes after games,” the district “permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls.”

Regarding Kennedy’s Free Speech Clause claim, the Court first had to decide whether Kennedy was speaking as a government employee (who isn’t protected by the First Amendment) or as a citizen (who receives some First Amendment protection). The Court determined Kennedy was acting as a citizen. “When Mr. Kennedy uttered the three 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.”

While the Court would have normally shifted the burden to the school district to defend its actions under the Free Exercise and Free Speech Clauses, the Court didn’t in this case noting that under whatever test it applied the school district would lose.

The district explained it suspended Kennedy because of Establishment Clause concerns namely that a “reasonable observer” would conclude the district was endorsing religion by allowing him to pray on the field after games. In response the Court overturned the so-called Lemon test.

Cities may need to work with their legal counsel to review policies or regulations on religious expression in light of the court’s ruling in this case if they are based on concerns over endorsement of religion under the now overturned Lemon test. However, the court’s decision did not provide further guidance on how to apply interpretations of the history and framer’s intent under the Establishment Clause.

The State and Local Legal Center (SLLC) filed an amicus brief supporting the district with several associations including the National League of Cities and the National Public Employer Labor Relations Association.

For more information, see the MRSC article Church and State: U.S. Supreme Court Makes Changes to Establishment Clause Analysis.

Please note that this information is offered for educational purposes only and is not intended as legal advice. Cities should consult their legal counsel with any questions or concerns regarding the impact of the decision.