Kennedy v. Bremerton

 Justice Gorsuch's majority opinion provides a great executive summary of the facts and holding:

Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

 The School believed the Establishment Clause required it to fire Coach Kennedy for praying on the field after the game because a "reasonable" observer, who observed him praying, might mistakenly believe that the school was endorsing his prayer. Is it reasonable to jump to this conclusion?

Suppose an African-American coach took a knee during the national anthem in support of Black Lives Matter. Would he have been disciplined by the school? 

Were other coaches allowed to engage in free expression on the field for a brief time following games? 

What about a teacher who displays a Pride flag in her classroom? Permitted?

Basically, the school targeted Coach Kennedy's speech because it reflected his religious beliefs. This is a viewpoint based restriction of speech under the Free Speech Clause and a target of religious exercise under the Free Exercise Clause.

Once the plaintiff establishes a free exercise claim, here is what happens:

Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

 The free speech issue is a little more complicated for a government employee and the Court applies a version of intermediate scrutiny. The Court says it need not decide which standard of review applies in this case, because the school district "cannot sustain its burden under any of them." 

How did the school district attempt to justify singling out Coach Kennedy's religious expression for disciplinary treatment?

It relied on the Lemon test and the fear that a reasonable observer would mistakenly view Kennedy's personal prayer as an endorsement of religion by the school.

Here is what the Court says about the future of the Lemon test: 

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators.  This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”

The Court overrules Lemon and relaces it with the following test:

 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.’ ” 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.”

Now consider the Court's conclusions:

In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee  over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.

  Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress  religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The judgment of the Court of Appeals is Reversed.

 

Notice Justice Sotomayor's dissent mourning the demise of the wall of separation:

 The Court overrules Lemon v. Kurtzman (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent. . . .

 Which decisions are vulnerable under the Court's new test (actually not so much new as one based upon history, tradition and original understanding)?

What about a state law requiring the national motto--In God We Trust--to be prominently posted in every public K-12 classroom? Compare the Lemon test with the Kennedy test.

What about voluntary school prayer or Bible reading laws? How would Engel and Santa Fe come out under the Kennedy test?