In sustaining a football coach's right to publicly pray at the 50-yard line after the high school football game, the Supreme Court has expanded the reach of the Free Exercise Clause, rejected a longstanding precedent guiding the Establishment Clause, and employed language that might make it easier for public employees to win their free speech cases.
The case is Kennedy v. Bremerton School District, issued on June 27. The facts may appear to be simple, but the majority and dissenters spent much more time on the evidence than your average single-employee wrongful discharge case. As the majority sees it, after previously praying with students and even opposing players following the games, he began praying on the field alone after the school district told him to keep the students out of it, as the district did not want to risk an Establishment Clause violation. He was fired after he prayed alone post-game at the 50-yard line, still on duty. "The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015." (The dissent says the case law requires the court to consider plaintiff's entire history of praying on the field, including when he prayed with students).
The 6-justice majority notes the tension between the Free Exercise Clause (protecting religious freedom) and the Establishment Clause (ensuring the public does not associate prayer with a governmental institution), but it says the clauses have "complimentary purposes," "not warring ones where one Clause if always sure to prevail over the others." This is new language from the Court, which is trying to ease the tension between the clauses. While the school district worried the public might think the district was endorsing the coach's prayer, drawing from the Supreme Court's 1971 ruling, Lemon v. Kurtzman, the Court now says Lemon (much maligned over the years by the conservative Justices) is no longer the operative test and that the new framework reads like this:
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflec[t ] the understanding of the Founding Fathers.” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “exception” within the “Court’s Establishment Clause jurisprudence.”
The conservative majority has been framing many constitutional standards these days in the context of original intent and what the constitutional framers had in mind in 1787, when the Constitution was drafted. Under this analysis, since there no evidence that plaintiff coerced students to pray with him, and no students joined in the prayer after the school told plaintiff to leave the students out of it, and the district permitted secular speech at the games, plaintiff wins the case.
We have some free speech language here. Under the Supreme Court's ruling in Garcetti v. Ceballos (2006), a public employee engages in protected speech when he speaks as a citizen, not as a government employee pursuant to his job duties. That language has scaled back many speech claims over the years, as courts have broadly interpreted Garcetti to include much work-related speech as unprotected. The Court this time around emphasizes that plaintiff's prayer did not owe its existence to his responsibilities as a public employee, stating:
It seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. 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. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.
We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play. Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.
I wonder how this reasoning affects cases from the Court of Appeals that have scaled back public employee speech rights. My guess is that it will not based on the unique facts of this case and the religious connection, which rarely applies in the public employee context.