The world of First Amendment law and public employment has always been a bit murky, with public employers wishing to avoid “establishing” religion within the workplace, and employees having their own rights to free exercise and free expression.  The question of which interest has a greater priority in the eyes of the law was addressed recently by the U.S. Supreme Court in Kennedy v. Bremerton School District.

The Facts

In that case, the plaintiff, Kennedy, had been working as a football coach since 2008, and started a practice of praying on the field at the conclusion of each game at the 50-yard line after players had already shaken hands.  Eventually, some players joined him in prayer on the field, and eventually most of the players joined him after the game.  Kennedy alleged he never pressured or encouraged any student to join his midfield prayers, but he eventually began incorporating motivational speeches with his prayers when others were present.  This practice continued for seven years.

However, in 2015, when the District’s superintendent heard of the practice, he sent Kennedy a letter stating that Kennedy should cease any talks with students that included prayer, to avoid encouraging or supervising students in prayer, and to avoid any demonstrative religious interaction with students to “avoid the perception of endorsement.”  After a month of abiding by the directives, Kennedy sent a letter to school officials asking to be allowed to continue his private religious expression alone, and that he was not requesting or encouraging students to participate in his prayers.  The district responded by forbidding him from engaging in any overt actions that could appear to endorse prayer while he was on duty.  After receiving the letter, Kennedy engaged in prayer on his own and was joined by players and members of the community.  The district responded by saying he could only pray after games in private locations.  Kennedy again engaged in public prayer at the fifty yard line for the team’s last game.  He was then placed on administrative leave.

Before refusing to re-hire Kennedy as a football coach, the District made public admissions that it possessed no evidence that students were coerced to pray with Kennedy, and that Kennedy complied with instructions not to offer pre-game or post-game prayers with players.  Obviously, Kennedy sued, claiming violations of the First Amendment.  Summary judgment against Kennedy was granted at both the district court and the Ninth Circuit Court of Appeals, citing the District’s compelling interest in prohibiting postgame prayers for fear of violating the Establishment Clause.

The Decision

In its decision, the Court stated that both the Free Exercise and Free Speech clauses of the First Amendment protect religious activity.  In those cases, a plaintiff must first show that their rights were infringed upon by government action (usually pretty easy to do) and the government entity must show that its actions were justified and narrowly tailored to address the issue.

In coming to its decision, the Court limited the contested conduct to Kennedy’s persistence in “praying quietly without his players after three games in October 2015.”  This limitation ensured that Kennedy’s praying would not have been on a matter of public concern and rendered the speech protected.  After the claim passed that minor hurdle, it moved on to the government’s burden or providing its restrictions served a compelling interest and were narrowly tailored.

It is here where the majority and the dissent disagreed.  The majority found that by banning Kennedy’s prayer, the District itself created “its own ‘vise between the Establishment Clause on one side and the Free Speech and free Exercise Clauses on the other,’ placed itself in the middle, and then chose its preferred way out of its self-imposed trap.”  It held that the District could not go looking for possible Establishment Clause issues, especially when no one complained about the prayer taking place.  As no one complained, and the Court believed that no students felt coerced to participate in the post-game prayers (per Kennedy), that no such complaints existed.  The Court held that the Establishment Clause does not “trump” both an individual’s right to free exercise and right to freedom of speech, and that fear of constitutional violations could not justify “actual violations of an individual’s First Amendment rights.”

With that, the Court reversed the decisions of the lower courts, and awarded summary judgment to Kennedy on his First Amendment claims.

Going Forward

It will be interesting to see how far this Court will go with extending this holding into other First Amendment claims that come before it.  For now, the Court has limited the government’s ability to restrict private prayer of employees in the workplace.  Employers should be mindful of this decision when issues of employee religious exercise in the workplace are brought to their attention.  If you, or your organization, need assistance with First Amendment issues within your organization, contact Wiley Reber Law, for legal advice that works.