On June 27, 2022, the U.S. Supreme Court rendered a 6-3 decision in Kennedy v. Bremerton School District, 597 U.S. ___ (2022), where it held the Free Exercise and Free Speech Clauses of the First Amendment protects an individual engaging in sincerely motivated religious exercise and private speech from government punishment. The Court ultimately found that when a public employer disciplines an employee for engaging in sincerely motivated religious exercise and private speech, the First Amendment has been violated.

Kennedy involves an assistant football coach, John Kennedy, who was placed on paid administrative leave for his decision to persist in praying, without his students, midfield, after high school football games in October 2015. Bremerton School District previously counseled Mr. Kennedy for engaging in religious expressions, including prayer, with students during school events because the school district believed such actions were a violation of the school district’s policy and the Establishment Clause of the United States Constitution. The Establishment Clause forbids the government from establishing an official religion, prohibits government action that unduly favors one religion over another as well as prohibits government action that unduly prefers religion over non-religion, or non-religion over religion. 

Despite the school’s counseling of Mr. Kennedy, he continued to pray alone, midfield, while the players were engaged in other endgame activities; but before Mr. Kennedy could finish his prayer some students, and community members, joined him. 

Bremerton School District acknowledged Mr. Kennedy’s efforts to conform to its prior counseling as Mr. Kennedy was no longer leading prayers or speaking religious motivations to any student; but the district insisted that Mr. Kennedy only engage in his conduct at a “’private location’ behind closed doors and ‘not observable to students or the public.’” Mr. Kennedy continued engaging in his midfield prayer on two more occasions, once where no one joined him and another where only adults joined him. Mr. Kennedy was then placed on paid administrative leave. 

Following these events, Mr. Kennedy sued in federal court, alleging that Bremerton School District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. The district court found that the “sole reason” for the school district’s decision to discipline Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after the games. 

The district court rejected Mr. Kennedy’s free speech claim concluding that because Mr. 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. Alternatively, even if Mr. Kennedy’s speech qualified as private speech, the district court reasoned the school district properly suppressed it because had the school district done otherwise, it would have invited “an Establishment Clause violation.”

Moreover, the district court rejected Mr. Kennedy’s free exercise claim holding that, even if Bremerton School District’s policies, restricting his religious exercise, were not neutral toward religion or generally applicable, the district had a compelling interest in prohibiting his postgame prayers, because it would have violated the Establishment Clause. The Ninth Circuit affirmed the district court’s ruling on similar grounds.

The Supreme Court reversed the Ninth Circuit’s decision reasoning that “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”

In its reasoning, the Supreme Court said Bremerton School District’s policy was not “neutral” or “generally applicable” because the school district admitted it sought to restrict Mr. Kennedy’s speech due to its religious character. As such, this triggered the strict scrutiny standard under which the government must demonstrate its action were justified by a compelling state interest and was narrowly tailored in pursuit of that interest. 

The Supreme Court also said Mr. Kennedy’s speech was private because when Mr. Kennedy spoke the prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. The Supreme Court reasoned that Mr. Kennedy did not speak pursuant to government policy and was not seeking to convey a government-created message during his prayers. The Court further indicated he was not instructing players, discussing football strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. With that in mind, the Court held Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee, thus, triggering additional strict scrutiny under the Free Speech Clause.  

The Supreme Court concluded that a government entity’s concerns about the risk of liability concerning constitutional violations do not justify actual violations of an individual’s First Amendment rights. Therefore, the Supreme Court held that the Bremerton School District improperly punished Mr. Kennedy for engaging in a personal religious observance when the school district believed it had a duty to suppress religious observances even as it allows comparable secular speech.

Key Takeaway: 

When analyzing a government employee’s speech, public employers should consider that speech while “on the clock” does not automatically transform that employee’s protected private speech to unprotected government speech.  Although the First Amendment prohibits the government from barring religious observances, it allows comparable secular speech. Thus, public employers should be mindful of speech that the objective observer could reasonably infer to be endorsing religion versus speech that is comparably secular.

If you would like a review of your policies, have questions that arise relating to this Legal Update, please contact Attorney Saveon Grenell at 262-364-0313 or sgrenell@buelowvetter.com, or your Buelow Vetter attorney. Assistance in drafting this update was provided by Quron Payne, extern and Juris Doctorate Candidate, December 2022.