Today the Supreme Court heard oral argument in Kennedy v. Bremerton. While the argument itself was less than clarifying, the court’s eventual opinion in the case could go a long way in explaining how the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment apply to public-school employees.
The case originated when the Bremerton, Washington School District removed Joseph Kennedy as football coach when he refused to stop praying after games. Kennedy, who was an assistant coach, had a practice of going to the middle of the field after games and briefly praying. Initially, he prayed alone, but eventually some Bremerton players asked if they could join him. Those players also invited players from opposing teams to join them. In 2015, a coach from an opposing team notified the school. The school told Kennedy that if he wanted to continue praying, he had to do so privately and away from students. He told the school that he would continue to pray at midfield and that if students wanted to join him, he would not forbid them. That led the school to fire him.
Kennedy challenged the decision as a violation of his free speech and free exercise rights under the First Amendment. The case had a Byzantine path to today’s oral argument. Initially, the trial court and Ninth Circuit upheld Kennedy’s punishment, leading him to appeal to the Supreme Court. The court denied Kennedy’s appeal for review in 2019, but in a separate statement Justice Alito argued that Kennedy might still have live claims once factual questions were resolved by lower courts. Alito’s statement, joined by Justices Thomas, Gorsuch, and Kavanaugh, strongly implied the lower courts’ decisions justifying Kennedy’s firing because he had engaged in religious speech were wrong. Despite Alito’s statement, the Ninth Circuit reiterated that the district was justified in firing him and in fact had an obligation to do so under the Establishment Clause.
Today, several justices offered a blizzard of hypotheticals for Kennedy’s attorney, Paul Clement, who served as solicitor general of the U.S. during the administration of President George W. Bush. They also peppered Bremerton School District’s attorney, Richard Katskee, who is vice president and legal director of Americans United for Separation of Church and State, with questions making fine-grained distinctions that could best be called Jesuitical. Nevertheless, it seems unlikely that Bremerton will have an outright victory. Instead, the school district has to hope that the Court will remand the case, sending it back down to the lower courts to be reconsidered based on a proper understanding of the Court’s doctrines.
The most basic issue is whether Kennedy’s speech was government speech or private speech. Bremerton argued that it was government speech and therefore could be controlled by the school district. There do not appear to be five votes for that position on the Court.
If Kennedy’s prayers were private speech, could the school district still punish him because of the Establishment Clause? The school district had, in fact, repeatedly claimed that allowing his prayers to continue would give the appearance that the school was endorsing his speech triggering the Establishment Clause. The problem for Bremerton is that the question of endorsement seemed to be closely tied to the Lemon Test, dating back to the 1971 case Lemon v. Kurtzman. Several of the conservative justices noted that the Lemon test had not been applied for decades in these kinds of cases and, in fact, as Justice Kavanaugh said, appeared to have been interred in American Legion v. American Humanist Association (See “Supreme Court Partially Junks a Lemon: American Legion Cross Case May Make It Harder to Sue Schools over Religion,” Legal Beat, Winter 2020). Justice Breyer, who joined the majority in American Legion, argued that even if Lemon were no longer good law, perhaps there were still strands of it that should still apply and, therefore, schools should be able consider the divisive effects of religion in regulating these kinds of circumstances. However, there seemed to be little appetite among the conservative justices to say that Kennedy’s speech could reasonably be interpreted as being endorsed by the school district. That makes it highly unlikely that there are five votes willing to decide the case on those grounds.
Pointing to a different line of cases such as Good News Club v. Milford (2001), Clement argued that simply because Kennedy’s prayer took place on public school property does not make it government speech. Nor does it imply that the government has endorsed the speech. The school had also made it clear that it was only punishing him because his speech was religious, and that runs afoul of basic free speech doctrines such as viewpoint and content neutrality.
The remaining Establishment Clause question is whether Kennedy’s prayers could be considered coercive. Katskee argued that coaches exercise significant authority over students. Not participating in the prayers could expose the students to the risk of being punished with loss of playing time. This line of questioning seemed to offer the best hope for Bremerton, but not because a majority of the Court agrees with it. Instead, Justice Gorsuch asked Katskee “If we thought the school district misunderstood the Establishment Clause teachings of this court, what should we do?” Katskee responded that it should remand it back to the Ninth Circuit to be evaluated under the coercion test.
Other justices questioned whether Kennedy’s prayers could be reasonably considered coercive since students were not compelled to participate or listen. Katskee argued that if the Court did not find that it was coercive it would have to overturn Engel v. Vitale (1962) which held that schools could not encourage students to recite an official nonsectarian prayer composed by state officials, Lee v. Weisman (1992) which held that schools cannot sponsor nonsectarian prayers at graduation ceremonies, and Santa Fe v. Doe (2000) which held that student-initiated-and-led prayers at football games were unconstitutional. That again seemed to be unpersuasive to the conservatives who thought that the facts of those cases involving captive audiences were sufficiently different that Kennedy’s prayers could be easily distinguished from them. Perhaps sensing that some justices might entertain the idea of remanding the case, in his rebuttal Clement contended that doing so would be improper. He said there was no indication of coercion when Kennedy was praying, noting that that the school district only focused on endorsement.
Several of the conservative justices expressed concern that ruling against Kennedy would then allow schools to punish employees for other kinds of religious speech. Justice Kavanaugh, for instance, asked if a coach who made the sign of the cross before a game could be fired if the school told him to stop. Katskee argued that Kennedy had “made himself the center of attention” which made the two examples different. Kavanaugh then asked what if the coach did it while all the fans and players were looking at him? Kavanaugh said that Katskee seemed to be asking the court to create a “center of attention” test, which would be even more unworkable. This would make someone’s constitutional rights contingent on how many people are paying attention to them. That’s not how rights usually work, notwithstanding the classic and abused “yelling fire in a crowded theater” free speech exception.
As well, other conservative justices seemed concerned that schools might discriminate against religious speech while allowing other kinds of speech. Justice Thomas asked whether taking a knee in support of Black Lives Matter would receive the same treatment. Justice Alito wondered whether a coach going to the middle of the field after a game to support Ukraine or to protest climate change would be punished.
Despite the apparent lack of consensus about how the case should be decided, a Bremerton victory seems remote. Again, their best hope would be for the case to be remanded, sent back to a lower court, but that might simply delay the inevitable moment when a skeptical majority of justices would fully consider the question of coercion.
Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.