Coach Kennedy Case: Free Exercise Analysis

"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?

Coach Kennedy Video: FYI

 Coach Kennedy Video

 Interestingly, Coach Joe Kennedy did not play football in high school. But he did serve for 18 years in the Marine Corp, so he was a great molder of men. Semper fi! "Clear eyes, full hearts, can't lose!"

By the way, the school district recently announced that  "it had reach[ed] an agreement to settle a claim for Kennedy’s attorney fees for $1,775,000." --https://www.union-bulletin.com/sports/wire/bremerton-school-board-approves-settlement-with-coach-over-on-field-prayer/article_72d14fb0-c73c-11ed-8cdd-c376d716f95b.html

I love that attorney's fees are awarded when a plaintiff wins a federal civil rights case.

Kennedy v. Bremerton: Clear eyes, full hearts, can't lose!

 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.'"

 In other words, the school, echoing Hamlet Prince of Denmark, basically said "get thee to a nunnery, Coach Ophelia" if you wish to pray after a game. 

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." [Part IV of opinion]

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.” Id.

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.” Id.

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 [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.

 

Under the strict-separationist Lemon/Endorsement test, courts would often declare war between the Establishment Clause on one side, and Free Speech and Free Exercise on the other side. 

And they would often say that the Establishment Clause was a trump card that justified what would otherwise be a violation of the Free Speech and/or Free Exercise Clause.

I have searched diligently trying to find that Trump Card Clause in the First Amendment, but it simply is not there. 

In his majority opinion in Kennedy, Justice Gorsuch makes clear that the War between the clauses of the First Amendment is over and there is no trump card. Here is what he said:

“It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units.  But the three Clauses appear in the same sentence of the same Amendment:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others.”

 

For many years, I have said  something very similar when teaching the First Amendment:

Instead of holding that one clause of the First Amendment trumps the others, I ask, why not interpret the First Amendment—all three clauses--as a harmonious whole that protects religious liberty and religious speech from unequal laws and restrictive burdens?

This, I think, is what Justice Gorsuch accomplished in his majority opinion in Kennedy decision!

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)? 

Kelly Shackelford, Kennedy's lawyer in this case, notes that Lemon "has been cited more than seven thousand times in the last fifty years and [has] created hostility toward religious expression across America....but now all seven thousand citations...have to be reconsidered." 

What about a nativity scene in a public building or a public park? 

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?

First Amendment's Belt and Suspenders Protection of Religious Speech

 From Justice Gorsuch's majority opinion in Kennedy:

 Now before us, Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. These Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities. That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.

 

Every day there are examples of government officials attempting to silence religious speech by students, teachers, government employees, and ordinary citizens.  The First Amendment provides belt and suspenders protection when government restricts religious expression.

Coach Ron Brown's Prayer at Last Week's Big Red Game

 A student sent me this email:

 

"Here is a video of the official Nebraska Football X page posting a prayer where Coach Brown discusses his faith in Christ.

1. Does the prayer itself violate Supreme Court precedent?
2. What about the post itself? Is that government establishment of a religion?

link:  https://x.com/huskerfootball/status/1961843649961992417?s=46&t=QhSkS6NK5Ss1_4x1Xdsm5w

My opinion is that neither do, but I thought it might be illustrative to address the class using this as an example."

 

Here is my answer:

 

 

Ron is a friend of mine. He has prayed that way for many, many years. No one has ever sued. The Constitution is not self-executing. Someone with standing needs to sue.

Under Lemon, probably an endorsement. But under coercion and history test, maybe okay. Players participate voluntarily, but Sotomayor would say pressure to please coach was soft coercion. 

Maybe I will play this after we discuss Kennedy case. This prayer and the X post go well beyond Kennedy’s silent prayer. Good issue.

 

Lemon/Endorsement Test

 Lemon Test:

  “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ”

 

Lemon/Endorsement Test:

This is a gloss on the Lemon test that states that for a government practice to be constitutional under the Establishment Clause, neither its purpose nor its effect must endorse a message approving or disapproving of religion.

 

Notice that the endorsement test prohibits the government from endorsing a message of either approval or disapproval of religion. What is an example of a government practice that endorses disapproval of religion? 

Jefferson as a Public School Adminstrator

                                              Daveed Diggs as Jefferson on Broadway
 

Here is a little bit of history that makes you think about religion in the public schools and the Establishment Clause: 

Jefferson was the first school board president for the public schools in the District of Columbia. In fact, an historian of the District of Columbia public schools credits Jefferson as "the chief author of the first plan of public education adopted for the city of Washington.” Interestingly (perhaps devastatingly for those who revere Jefferson as a strict separationist), the first official report on file indicates that the principal books then in use in the District of Columbia public schools were the Bible and Watts Hymnal.

See Wilson, Eighty Years of the Public Schools of Washington-1805 to 1885, 1 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 122 (1897).

So, think about this when we read the school prayer cases and cases forbidding public schools from endorsing religion.

Engel v. Vitale: A Question

 Board of Regents wrote a prayer and school board directed the School District's principal to cause the prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day. 

It was a voluntary prayer--no child was compelled to recite the prayer.

The prayer was a non-denominational harmless single sentence: “"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

This short prayer is comparable to the opening ceremony for sessions of the Supreme Court of the United States. Here is how the Court itself (https://www.supremecourt.gov/about/procedures.aspx) describes its opening ceremony:

 

“When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: ‘The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!’"

 

New York Court of Appeals upheld the daily prayer activity so long as the school does “not compel any student to join in the prayer over his or her parents’ objection.” (P. 1) [This court applied the Coercion Test, a test that protects individual liberty from compelled religious activities]

SCOTUS held that a voluntary daily prayer violates the incorporated EC because it amounts to an "endorsement" of prayer or an "encouragement" to recite the prayer. It also said the "constitutional wall of separation" required the prayer to be enjoined and that this was "no part of the business of government." P. 2.

What liberty interest is being protected by the EC in this case?

Or is liberty being restricted by the Court's reading of the EC in the sense that those who wish to recite the prayer are being denied the opportunity to do so? See Stewart's dissent: "I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

How would Engel come out under a coercion test? Here is Judge Easterbrook on Pledge of Allegiance jurisprudence: "So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance." You protect liberty by protecting liberty, not by censoring the speech of others.

Is the voluntary prayer in Engel different from voluntary recitation of "under God" in the Pledge of Allegiance? Should the EC be interpreted to forbid the one and permit the other?

Notice the Court admits that it is not seeking to advance any real liberty interest: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."  P. 3.

So again I ask: How did a non-liberty test somehow get incorporated as a 14th Amendment "liberty" protected from "deprivation" by the states?