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? "[T]he District
appealed to what it called a 'direct tension
between' the “Establishment Clause” and 'a school
employee’s [right to] free[ly] exercise' his
religion. To resolve that 'tension,' the
District explained, an employee’s free exercise
rights 'must yield so far as necessary to avoid
school endorsement of religious activities.'”
"The
District thus made clear that the only option it
would offer Mr. Kennedy was to allow him to pray
after a game in a 'private location' behind closed
doors and 'not observable to students or the
public.'"
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. Basically, the school is saying that the EC trumps the FEC and requires the school to censor Kennedy's personal prayer on the field.
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 replaces 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?
