Kennedy v. Bremerton (2022) is the Supreme Court case that concerns rights under the First Amendment, particularly the Free Exercise and Free Speech clauses.
The Court held in Kennedy v. Bremerton that “the free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” Essentially, the Constitution does not support the government prohibiting “such religious expression.”
Overview:
The case involved Joseph Kennedy, a high school football coach who was engaging in prayer with students during and after school games. Initially, Kennedy conducted his prayers in private; however, over time the prayers involved into significantly lengthier processes. Bremerton School District, after learning of the activity, conducted an investigation into Kennedy’s prayers. At first, they asked Kennedy to stop the prayers which he initially followed. However, Kennedy later informed the school district that he would resume. Bremerton School District notified Kennedy that he was in violation of the school’s policy and eventually placed Kennedy on paid administrative leave. After the end of the 2015 season, where Kennedy was not recommended to be rehired, Kennedy filed suit to vindicate his right “to act in accordance with his sincerely held religious beliefs” and alleged violations under the First Amendment and under Title VII of the Civil Rights Act. Eventually, Kennedy sought certiorari from the Supreme Court, which was granted on January 14th, 2022.
Arguments:
Kennedy (the petitioner) argued that the First Amendment right to engage in private religious expression was violated by being dismissed from Bremerton for praying after the football game. Kennedy did concede that Garcetti v. Ceballos asserts that free speech by public officials is only protected if they are engaged as private citizens; this is known as the government speech doctrine. As such, if the speech is a part of official duties, the school in this case could justifiably act against Kennedy. Kennedy attempts to distinguish the case here through arguing that this instance falls outside the scope of what the school commissioned from him as a coach.
Kennedy further argues that what matters is whether the speech is “ordinarily within the scope of an employee’s duties” which comes from case law found in Lane v. Franks. Rather, Kennedy contends that the post-game prayers were not included in his official duties.
The Bremerton School District argued a broad approach; asserting that everything a coach does while on school grounds is properly considered government speech. They state that coaches enjoy a special status as “mentors and role models” and as such are “constantly being observed by others.” As such, Kennedy’s duties would extend to his post-game duties. Further, Kennedy’s prayers improperly impacted his duties as coach, and consequently, are within the school’s authority to prohibit or regulate.
Kennedy’s response to the school’s role model argument is that it is actually beneficial for students to see their mentors model private religious exercise. Kennedy even asserts that a prohibition would instead imply a hostility towards religion and would therefore be detrimental to students.
Bremerton responded that Kennedy’s conduct was not a private act; rather, it was highly demonstrative public conduct. As such, any failure to prohibit it would imply the school endorses the conduct. Further, Bremerton argues that Kennedy’s conduct was coercive because of his ability to command the attention of the players due to his authority as a coach.
Decision:
The Court began by reestablishing that a plaintiff must demonstrate an infringement of their rights under the Free Exercise and Free Speech clauses. If the plaintiff carries that burden, then the defendant must show that their actions were justified and “appropriately tailored.” From there, the Court stated that Kennedy discharged his burden under the Free Exercise clause. Precedent permits several ways to demonstrate the violation. In this case, a government entity placing a burden on someone’s sincere religious practices pursuant to a policy if it is not “neutral” or “generally applicable.” If this occurs, strict scrutiny is triggered; meaning the government must show that its actions are justified by a compelling state interest that was narrowly tailored in pursuit of that interest. Here, the Court stated that Kennedy was disciplined “only” for his decision to persist in “praying quietly” without his students after three games in October 2015. As such, the policies were not general nor generally applicable.
The Court also stated that Kennedy discharged his burden under the Free Speech clause. Here, the Court asserts that the Constitutional rights also extend to “teachers and students” and that their rights are not shed at the “schoolhouse gates.”
To balance these competing interests with government employment; the Court applied a two-step process:
- First, the Court looked at a threshold inquiry about the nature of the speech at issue. When an employee “speaks as a citizen addressing a matter of public concern” then the First Amendment is implicated and the matter proceeds to the next step. Courts here must engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.”
- The Court asserts that Kennedy did not speak pursuant to government policy and was not seeking to convey a government-created message. The language the Court uses here is that Kennedy’s prayers “did not owe their existence to his responsibilities as a public employee.” The Court decided that it was too broad to agree with the role-model argument, asserting that it would treat “everything that teachers and coaches say in the work-place as government speech subject to government control.”
- After this analysis, the next step is triggered where the government may seek to prove that its interests as an employer outweigh an employee’s private speech on a matter “of public concern.” This is where the burden shifts from the petitioner.
The Court then looked at references to “historical practices and understandings.” The Court decided that a rule where “the only acceptable government role models for students are those who eschew any visible religious expression” would undermine a long Constitutional tradition.
[Last updated in July of 2022 by the Wex Definitions Team]