"Under this Court’s precedents, a plaintiff bears certain burdens to demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries these burdens, the focus then shifts to the defendant to show that its actions were nonetheless justified and tailored consistent with the demands of our case law. We begin by examining whether Mr. Kennedy has discharged his burdens, first under the Free Exercise Clause, then under the Free Speech Clause.
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.
That Mr.
Kennedy has discharged his burdens is effectively
undisputed. No one questions that he seeks to engage
in a sincerely motivated religious exercise. The
exercise in question involves, as Mr. Kennedy has
put it, giving “thanks through prayer” briefly and
by himself “on the playing field” at the conclusion
of each game he coaches.. . . Nor does anyone
question that, in forbidding Mr. Kennedy’s brief
prayer, the District failed to act pursuant to a
neutral and generally applicable rule. A government
policy will not qualify as neutral if it is
“specifically directed at . . . religious
practice” or if it provides “a mechanism for
individualized exemptions.” Failing either the
neutrality or general applicability test is
sufficient to trigger strict scrutiny.
In this case,
the District’s challenged policies were neither
neutral nor generally applicable. By its own
admission, the District sought to restrict Mr.
Kennedy’s actions at least in part because of their
religious character. Prohibiting a religious
practice was thus the District’s unquestioned
“object.” The District candidly acknowledged as much
below, conceding that its policies were “not
neutral” toward religion.
The District’s challenged policies also fail the general applicability test. The District’s performance evaluation after the 2015 football season advised against rehiring Mr. Kennedy on the ground that he “failed to supervise student- athletes after games.” But, in fact, this was a bespoke requirement specifically addressed to Mr. Kennedy’s religious exercise. The District permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls. Thus, any sort of postgame supervisory requirement was not applied in an evenhanded, across-the-board way.
Strict Scrutiny
So, does the school district have a compelling state interest to justify its violation of Kennedy's free exercise of religion?
What does the school district argue?
It argues that it was required to suspend Kennedy because his on field prayer violated the Establishment Clause. In effect, the school district argues that the EC forbids what the FEC requires. And the EC trumps the FEC.
What do you think about that argument? How can one part of the same First Amendment forbid what another part requires? Is the First Amendment irrational? T^he problem is the Lemon/endorsement test, which forbids the state from engaging in activities that a reasonable observer might perceive as an endorsement of religion.
What doe the Court say about this?
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