by Jack Ruello
In the summer of 2022, the Supreme Court of the United States in Kennedy v. Bremerton School District significantly changed the rights of many Americans by expanding the protection of the Free Exercise Clause. Historically, there has been tension between the Free Exercise Clause and the Establishment Clause with respect to balancing the rights of a person’s freedom to practice their religion against the public’s interest in separation of church and state. The Free Exercise Clause grants Americans the right to practice any religion of their choosing, if any at all. Incidentally, the Establishment Clause prohibits the government from favoring one religion over another by mandating a separation of church and state. The facts in Bremerton also bring the Free Speech Clause into play due to the bifurcated nature of analyzing free speech. This Blog Post will analyze the implications arising from the Court’s decision in Kennedy v. Bremerton School District.
I. Factual Background
In Kennedy v. Bremerton School District, the Supreme Court held that the Free Exercise Clause of the First Amendment protected a public high school football coach who prayed at the fifty-yard line of the field at the conclusion of each football game. Joseph Kennedy became coach of the Bremerton High School football team in 2008. After games, Kennedy routinely took a knee at the fifty-yard line and would pray quietly for around 30 seconds. Soon, players started asking Kennedy if they could join him, to which he would reply: “This is a free country, you can do what you want.” Over time, more student athletes, belonging to both Kennedy’s team and the opposing teams, joined Kennedy for prayer at the fifty-yard line. When others were present, Kennedy began incorporating brief motivational speeches with religious references. Kennedy engaged in his post-game prayer for seven years before anyone complained about his conduct. In September of 2015, the Bremerton School District’s Superintendent sent Kennedy a letter instructing him to avoid any motivational talks with students that might include religious expression or prayer. The letter further instructed Kennedy to refrain from suggesting, encouraging, discouraging, or supervising any student prayer activities. Further, the Superintendent explained that Kennedy’s religious activity must be non-demonstrative, which means the activity should not be “outwardly discernable as religious activity.”
After receiving the letter, Kennedy stopped incorporating religious references into his post-game motivational talks and stopped praying at midfield after each game. However, on his drive home Kennedy felt compelled to pray, so he drove back to the now-empty stadium and prayed silently. Soon thereafter, Kennedy asked the School District if he could continue the private personal reflection alone, by engaging in silent prayer once the game was over and when the students and student athletes were gone. In fear of violating the Establishment Clause, the School District responded by stating that Kennedy was forbidden from engaging in any overt actions that might appear to a reasonable observer that he was endorsing prayer while he on duty as a District-paid coach. Nevertheless, after the next game when most of Kennedy’s players were singing the fight song to the audience, Kennedy walked to midfield and engaged in silent prayer. Before Kennedy concluded his midfield prayer, players from the other team and members of the community joined him in prayer. The media covered this particular post-game prayer session. After this event, the School District remained concerned that Kennedy’s actions looked like government endorsement of religion to a reasonable observer. In another letter to Kennedy, the School District made it clear that Kennedy’s only option was to pray in a private location after games where neither the students nor the public could observe him. Kennedy continued to kneel after the games at midfield and silently prayed while students were engaged in other activities. In October 2015, the School District put Kennedy on administrative leave. Kennedy did not return for the next season.
Afterwards, Kennedy sued in federal district court, claiming that the School District’s actions violated the Free Speech and Free Exercise Clauses. As to Kennedy’s free speech claim, the district court and court of appeals agreed that Kennedy’s speech was government speech rather than private speech. Thus, Kennedy was not protected by the Free Speech Clause. The court of appeals rejected the free exercise claim for similar reasons, concluding that the School District had a compelling state interest to avoid violating the Establishment Clause. Afterwards, Kennedy applied for certiorari with the United States Supreme Court, and the Court granted writ.
Justice Gorsuch delivered the opinion of the Court. The majority began their analysis by establishing the relationship between the Free Speech Clause and the Free Exercise Clause, explaining how the two clauses work in tandem. Specifically, the Court stated, “[W]here the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”
First, the Court examined whether Kennedy met his burden of proof in accordance with the Free Exercise Clause. A plaintiff can carry the burden of proving a free exercise claim by showing that the “government entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” If the plaintiff meets this burden, the burden shifts to the government entity to satisfy strict scrutiny, which can only be met by a showing that its decision was justified by a compelling state interest and that the government action was narrowly tailored in pursuit of that interest. The Court stated that it was undisputed that Kennedy discharged his burden because “no one questions that he seeks to engage in a sincerely motivated religious exercise.” The Court went on to state that “nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule.” The Court supported this conclusion by emphasizing that the School District’s policies prohibited “any overt actions on Mr. Kennedy’s part, appearing to a reasonable observer to endorse even voluntary, student-initiated prayer.” Additionally, the School District acknowledged that its policies were “not neutral” toward religion. Next, the Court asserted that the School District’s policies were not generally applicable, reasoning that the School District told Kennedy he failed to supervise the student-athletes after the game while the School District permitted other members of the coaching staff to visit with friends or family during the same times Kennedy was praying. Thus, the Court concluded that the postgame supervisory requirement was not “generally applicable” because it appeared to only apply to Kennedy.
Next, the Court analyzed Kennedy’s free speech claim. The Court asserted that the Free Speech Clause will not protect an employee’s speech from government control if a public employee speaks pursuant to their official duties. This rule exists because the speech is, “for constitutional purposes at least—the government’s speech.” If an employee “speaks as a citizen addressing a public concern” then the First Amendment may be implicated, and the analysis should continue to a second step. The second step requires the Court to balance the competing interests surrounding the speech and its consequences, which is typically accomplished by weighing the employee’s speech interests against “‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through employees.’” The Court stated that the disagreement centers on whether Kennedy’s prayers were offered in his capacity as a private citizen or if his prayers constituted government speech that could be attributed to the district. The Court concluded that Kennedy’s speeches were private and not public, stating that Kennedy’s prayers did not “‘ow[e their] existence’” to his responsibilities as a public employee. Further, the Court emphasized the fact that other coaching staff members were free to engage in private speech during the same period of time that Kennedy was engaging in silent prayer.
Before discussing the Kennedy Court’s Establishment Clause analysis, it is important to note that, prior to the decision in Kennedy v. Bremerton School District, courts analyzed whether religious activity was a violation of the Establishment Clause by asking (1) whether such activity could reasonably be interpreted as a school endorsement of religion or (2) if students were coerced to participate in the activity. Further, the Supreme Court sometimes used the three-pronged test from Lemon v. Kurtzman to analyze whether there was an Establishment Clause violation. These three potential avenues for analyzing potential Establishment Clause violations created inconsistency with respect to deciding whether certain conduct was a violation of the Clause. The Lemon test was altered and applied inconsistently over the years, and past Justices have disagreed over what constitutes “coercion” or whether coercion is even required for an Establishment Clause violation. In addition to the three tests discussed above, the majority’s historical approach has also been used by past courts to analyze Establish Clause violations. These test should be kept in mind when understanding the Court’s analysis stated below.
The Court went on to criticize the School District’s “reasonable observer” argument, stating that the Free Exercise, Free Speech, and Establishment Clauses should be viewed as complimentary rather than supporting the notion that there is a tension between the three clauses. The Court emphasized the School District’s reliance on Lemon, which the Court characterized as setting forth a “grand unified theory” for analyzing Establishment Clause claims. The Lemon decision ultimately led to courts sometimes asking whether a “reasonable observer” would classify the government’s actions as endorsement of the religious conduct. The Court rejected this endorsement test, stating that in place of Lemon and the endorsement test, the Establishment Clause must be interpreted by “reference to historical practices and understandings.” Further, the Court classified the endorsement test as a “‘modified heckler’s veto in which . . . religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’” The Court believed an analysis focusing on the original meaning of the Establishment Clause and its history is superior to the Lemon analysis and the endorsement test.
The Court continued by rejecting the School District’s alternative argument that there was coercion involved in the religious display, which was therefore a violation of the Establishment Clause. Historically, the Court held that the government “may not . . . make a religious observance compulsory.” The Court supported this assertion by citing the School District’s concession, stating there was “no evidence that students [were] directly coerced to pray with Kennedy.” Further, the Court noted Kennedy’s statement that he “never coerced, required, or asked any student to pray,” and the Court emphasized Kennedy’s willingness to pray when the students were “singing the fight song” or “walking to the locker room.” The Court acknowledged that overtime members of the Court have disagreed over the meaning of coercion under the Establishment Clause in the past, but the majority noted that Kennedy’s religious exercise did not “come close to crossing any line.”
The Court stated that the District’s case generates a conflict between individual rights under the Free Exercise, Free Speech, and Establishment Clauses. As a result, the District sought a determination that one of the Clauses trumps the other two Clauses, which would resolves this “conflict” between the Clauses. The Court asserted that there is no conflict between the Clauses but only a “mere shadow” of conflict, a “false choice premised on a misconstruction of the Establishment Clause.” Thus, the Court ruled that Kennedy’s postgame prayers were protected by the Free Exercise Clause.
The Court’s decision in Kennedy v. Bremerton School District could significantly impact future Establishment Clause cases. Justice Sotomayor’s dissent provides the superior analysis and conclusion to this case by examining the Establishment and Free Exercise Clauses through a different lens than the majority opinion. While the majority opinion characterized the “tension” between the Free Exercise and Establishment Clauses as nearly non-existent, the dissent embraces that very idea, stating the tension is “between the speech interests of the government and its employees and between public institutions’ religious neutrality and private individuals’ religious exercise . . . .” The majority concluded that Kennedy’s prayer was “private” free speech, but, as stated in the dissent, Kennedy’s religious display appeared to be well-within the meaning of public government speech. Further, the Court ruled that Kennedy’s conduct was not coercive without exploring the possibility of indirect coercion. Lastly, the majority seemed to implicitly overrule the framework provided in Lemon, and in its place, implemented a historical approach that leaves little guidance to school administrators for deciding whether certain types of employee conduct will violate the Establishment Clause.
1. Private Versus Public
The fact that the Court described Kennedy’s midfield religious display as “private” could present issues going forward because school districts may have difficulty discerning whether particular displays of speech are private or public. As Sotomayor’s dissent points out, Kennedy made multiple media appearances to publicize his plans to pray at midfield, which ultimately resulted in the publication of an article in the Seattle News and attention from a local television broadcast. The majority argues that the question is whether Kennedy was acting within the scope of his employment as coach when he offered his prayers. If a high school football coach who offers a prayer at midfield immediately following each game is considered “not within the scope of his duties as coach” and designated as private speech, then school districts will likely have a hard time figuring out when to classify certain speech as private or public. This problem will make it difficult for school administrators to prospectively gauge whether certain conduct will violate the Establishment Clause.
Further, the dissent asserts that school district coaches must abide by their district’s policies and administrative regulations. Specifically, Justice Sotomayor noted that the polices and regulations provide that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.” Arguably, a head coach kneeling at midfield to pray immediately following the conclusion of a game would be exactly the type of conduct that would fall into the course and scope of a high school coach’s job. Lastly, this conduct seems to be exactly what the school’s policies and regulations aim to prevent, based off the plain language of the policy quoted above. The majority’s opinion blurs the line between public government speech and private free speech.
Another issue majority’s opinion makes blurry is the question of whether Kennedy’s conduct was “coercive” under the Establishment Clause. As stated, there are multiple tests used for analyzing Establishment Clause violations, and one of the tests is the coercion test, which provides that the Establishment Clause is violated if students were coerced to participate in the religious activity. The Kennedy Court acknowledged that past members of the Court have disagreed over the meaning of “coercion” under the Establishment Clause. Yet, without much analysis, the majority concluded that Kennedy’s conduct did not “come close to crossing any line.” Alternatively, the dissent emphasized the fact that the Court has repeatedly recognized the existence of “indirect coercion” and that there are “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” The dissent cited cases where prayer was found “coercive” even in instances when schools did not formally require students to listen. As the dissent pointed out, the cheerleaders, team managers, and student athletes were all required to be at each game due to their extra-curricular obligations. Therefore, the school’s head football coach made a public display of religion at a school event that certain students were required to attend. The fact that Kennedy’s prayers were silent does not suppress the volume of his actions. Kennedy’s prayers, as head coach, had greater coercive potential because the head coach is still on duty during postgame events. By going to midfield for prayer and talking to the media beforehand, Kennedy knew that his actions were being broadcast to a bigger audience than usual. Making the prayer more public than it normally is likely only increases the social pressure on the students to join in the prayer. The government is prohibited from using social pressure to enforce orthodoxy the same way it is prohibited from using direct means to enforce orthodoxy. Additionally, the Court accentuates the silent nature of Kennedy’s prayer without giving guidance as to whether a silent prayer, regardless of religion, is per se not coercive. For instance, some religions are capable of praying in silence, but they may raise their hands and bow on their hands and knees during silent prayer. Would the additional movement, as opposed to simply kneeling, change the analysis for the majority? The Court left that up to speculation by failing to address it. This decision could result in other school districts placing increased social pressure on students to join religious activities because it dictates that conduct like Kennedy’s does not amount to “coercion” as it as previously been understood under the Establishment Clause.
3. Overturning Lemon
Lastly, the Court seemingly overturned the Lemon case when deciding that Kennedy’s silent prayer was protected by the Free Exercise clause. The majority asserts that the endorsement test is a modified heckler’s veto, while the dissent cites that precedent has long recognized that endorsement concerns under the Establishment Clause are not related to a heckler’s veto. In her dissent, Justice Sotomayor illustrates the difference by asserting that the reasonable observer is not “hypothetical or uninformed” but rather the reasonable observer is someone who is “aware of the history and context of the community and forum in which the religious [speech takes place].” She goes on to iterate that the endorsement test is concerned “with the political community writ large.” She cites opinions describing that the Establishment Clause is concerned with whether the state approved of prayer activities in public schools, and she asserts that no subsequent decisions since Lemon have questioned the application of the endorsement test. Further, her dissent acknowledges that past opinions have criticized Lemon, but “[t]he only categorical rejection[s] of Lemon” were in separate, concurring opinions. Thus, it appears the majority overruled Lemon on seemingly weak reasoning, which could potentially lead to school districts legally endorsing religious activities. Whether Lemon was overturned due to the majority’s perceived genuine issues with the endorsement test or as a means to achieve a desired end is not of issue in this case, but it certainly could be one day in the future.
The majority seemingly overruled Lemon and the endorsement test and substituted a historical approach test. The historical approach involves applying establishment of religion as it was historically understood. The historical approach is likely not the ideal way of approaching a hot-button topic like religion, especially considering the change in the country’s attitude toward religion in last 200 years and the modern infrastructure of the government. As Justices Sotomayor, Breyer, and Kagan mentioned in their dissenting opinion in Dobbs v. Jackson Women’s Health Organization, the Framers of the Constitution “defined rights in general terms to permit future evolution in their scope and meaning.” The historical approach to analyzing the Establishment Clause will make it difficult for school administrators to decide what type of conduct is allowed by the Free Exercise Clause and which type of conduct the Establishment Clause prohibits.
The majority’s opinion is certainly a win for religious supporters of the right to free speech, but it is likely a point of contention for Americans who treasure the separation of church and state. The opinion in Kennedy extended the protection of the Free Exercise Clause, but this decision poses the question of whether the Court can expand the application of the Free Exercise Clause without limiting the protection of the Establishment Clause. Additionally, this decision left little guidance for school administrators with respect to predicting whether certain employee conduct will violate the Establishment Clause.
 Bradley Girard & Gabriela Hybel, The Free Exercise Clause vs. the Establishment Clause: Religious Favoritism at the Supreme Court, Am. Bar Ass’n (July 5, 2022), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/intersection-of-lgbtq-rights-and-religious-freedom/the-free-exercise-clause-vs-the-establishment-clause/ [https://perma.cc/8UCQ-MQA3].
 See generally Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).
 See generally id.
 Id. at 2416.
 Id. at 2417.
 Id. at 2418.
 Id. at 2418–19.
 Id. at 2419.
 Government employees are not protected by the Free Speech Clause if they are speaking in their official capacity or in the exercise of a government job. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The Court reasoned that because Kennedy was “hired precisely to occupy” an “influential role for student athletes,” any speech he uttered was offered in his capacity as a government employee and unprotected by the First Amendment. Kennedy, 142 S. Ct. at 2420.
 Kennedy, 142 S. Ct. at 2420.
 Id. at 2414.
 Id. at 2421.
 Id. at 2420.
 Id. at 2421–22 (citing Emp. Div., Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990)).
 Id. at 2422.
 Id. at 2423.
 Id. (quotingGarcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
 Garcetti, 547 U.S. at 423.
 Kennedy, 142. S. Ct. at 2423 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
 Kennedy, 142 S. Ct. at 2424.
 Id. (quoting Garcetti, 547 U.S. at 421).
 Id. at 2425.
 Kirsten B. White, Clear as Mud: Navigating In-School Employee Expression in the Wake of Kennedy v. Bremerton School District, Fox Rothschild Firm Publ’ns (July 15, 2022) https://www.foxrothschild.com/publications/clear-as-mud-navigating-in-school-employee-expression-in-the-wake-of-kennedy-v-bremerton-school-district#:~:text=Before%20Kennedy%2C%20in%2Dschool%20religious,student%20participation%20in%20religious%20activity.
 Richard L. Pacelle, Lemon Test, The First Amend. Encyclopedia. https://www.mtsu.edu/first-amendment/article/834/lemon-test [https://perma.cc/U367-432L] (last visited Jan. 8, 2023). The Kennedy Court characterizes the endorsement test as an “offshoot” of Lemon. Kennedy, 142 S. Ct. at 2427.
 Parcelle, supra note 52.
 John R. Vile, Coercion Test, The First Amend. Encyclopedia. https://www.mtsu.edu/first-amendment/article/899/coercion-test [https://perma.cc/CRZ3-ZUHG] (last visited Jan. 8, 2023).
 Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 Wm & Mary L. Sch. Scholarship Repository 1621, 1624 n.11 (2006).
 Kennedy, 142 S. Ct. at 2428.
 Id. at 2427.
 Id. at 2427.
 Id. at 2428 (citing Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 576 (2014); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019)).
 Id. A heckler’s veto is when the government restricts speech due to the anticipated or actual reactions of opponents of the speech. Patrick Schmidt, Heckler’s Veto, The First Amend. Encyclopedia, https://www.mtsu.edu/first-amendment/article/968/heckler-s-veto [https://perma.cc/K2D7-VYVZ] (last visited Nov. 1, 2022). In this case, the majority asserts that the “endorsement” is a modified version of a heckler’s veto because it requires the district to consider the reactions of potential opponents of the speech and make decisions based off such speculation. Kennedy, 142 S. Ct. at 2427.
 Kennedy, 142 S. Ct. at 2427.
 Id. at 2429.
 Id. (citing Zorach v. Clauson, 343 U.S. 306, 314 (1952)).
 Id. (alteration in original).
 Id. at 2429.
 Id. at 2432.
 See generally id.
 John R. Vile, Kennedy v. Bremerton School District (2022), The First Amend. Encyclopedia (June 27, 2022), https://www.mtsu.edu/first-amendment/article/2137/kennedy-v-bremerton-school-district [https://perma.cc/X2TC-RHBL].
 Id.; Kennedy, 142 S. Ct. at 2434 (Sotomayor, J., dissenting).
 Kennedy, 142 S. Ct. 2445.
 Id. at 2437.
 Id. at 2425.
 Id. at 2435.
 White, supra note 51.
 Id. at 2451.
 The school advertised that attendance was not mandatory for students. Id.
 Id. (alteration in original) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)).
 Muslims engage in prayer by raising their hands up, crossing their hands across their chest, and bowing. Huda, How to Perform the Daily Islamic Prayers, Learn Religions (Sept. 6, 2018), https://www.learnreligions.com/how-to-perform-muslim-prayers-2004518 [https://perma.cc/66EY-ZZXP].
 Kennedy, 142 S. Ct. at 2434.
 Id. at 2448.
 Id. (alteration in original) (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001)).
 Id. (quoting Good News Club, 533 U.S. at 119).
 Id. at 2448.
 Id. at 2449.
 Id. at 2428.
 Id. at 2450 (quoting NY State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2175–79 (2022)).