Even while declining to hear the case of a high school football coach who was punished for kneeling and praying at the fifty-yard line after games, the Supreme Court is inviting future cases that would give it an opportunity to revisit the issue of what the First Amendment’s Free Speech and Free Exercise clauses mean for teachers and coaches in public schools.
The signal came in a separate statement from Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, in the court’s denial of certiorari in Kennedy v. Bremerton School District, strongly hinting that the four conservative justices might be willing to overturn an earlier opinion by Justice Scalia that critics say went too far in curtailing the free exercise of religion.
The Bremerton, Washington School District had removed Joseph Kennedy as coach when he refused to stop praying after games. He challenged the decision as a violation of his free speech rights under the First Amendment. The Ninth Circuit upheld his punishment leading to his appeal to the Supreme Court. Even though the court denied review, Alito’s separate statement said that Kennedy still had live claims under the Free Exercise Clause and Title VII of the Civil Rights Act of 1964. Essentially, Alito outlined a rather obvious roadmap for Kennedy to return to the Court or for anyone else with similar claims.
Alito said that the Court’s decision to not hear the case “does not signify that the Court necessarily agrees with the decision.” Instead “unresolved factual questions” made it “very difficult if not impossible at this stage to decide the free speech question.” Kennedy might still be able to prove the free speech claims if he could prove that he was “not really on duty” when offering the prayers. Alito was even more troubled by the fact that the Ninth Circuit appeared to show animus toward Kennedy’s religious speech even when he was clearly “not on duty”, such as his praying while in the stands at a school basketball game. Alito said, “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.”
But the most significant part of Alito’s statement was his suggestion that Kennedy focus on Free Exercise and Title VII claims. Kennedy’s failure to do so, Alito suggested, was possibly due “to certain decisions of this court,” in particular, Trans World Airlines, Inc v. Hardison (1977) and Employment Division v. Smith (1990). In Hardison, the Court interpreted Title VII narrowly and approved TWA’s decision to not make accommodation for a worker’s Sabbath observance.
In Smith two members of a Native American church were fired from their jobs at a private drug rehab clinic because they used peyote during religious ceremonies. The court ruled against them. Writing for the 5-4 majority, Justice Scalia said that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
The decision effectively overturned Sherbert v. Verner (1963) which required the government to satisfy strict scrutiny–it must show a compelling government interest and be narrowly tailored–when burdening an individual’s exercise of religion. This decision prompted a major political backlash. In Congress, Democrats led the effort to pass the Religious Freedom Restoration Act (RFRA) which reinstated the Sherbert rule by statute. RFRA ended up being the basis for the Supreme Court’s decision in Burwell v. Hobby Lobby (2014) exempting closely held corporations from laws burdening their religious beliefs such as providing birth control that can act as an abortifacient.
Of course, simply because Alito mentioned those two cases does not mean that the court would vote to overturn them. But the very act of mentioning them indicates that it is on their minds.
Ever since Smith, by far the more significant of the two cases, was decided, conservatives have been of two minds on Scalia’s opinion. On one side, defenders have said that it’s a sensible decision undoing some of the Warren Court’s excesses. Others have argued that the decision has no basis in the original meaning of the Free Exercise Clause. As well, Scalia’s reading consigned the clause to a kind of second-class constitutional status when he said “the only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” Historically, Scalia’s critics say this “hybrid” rights reading is false but it shouldn’t matter anyway. Individual constitutional rights don’t have to be buttressed by other rights in order to receive constitutional protection.
Should Joseph Kennedy’s case manage to return to the Court, it could lead to a decision moderately expanding the free speech rights of teachers or to a truly landmark decision on the accommodations governments must make for religious believers.
Under current law, teachers’ speech rights can be broadly constrained as long as they are on duty. But Alito seemed troubled by the “tendentious” interpretation of the Court’s precedent in the Ninth Circuit’s ruling against Kennedy. In particular, he took exception to the idea that a school could fire a teacher for any speech or expression it did not like from “the moment they report for work to the moment they depart, provided that they are within the eyesight of students.” Hence, even something like folding your hands and silently bowing your head in prayer in the cafeteria could be grounds for dismissal. If the court were to reach the free speech claim and rule in Kennedy’s favor, it might carve out some modest protections for teachers engaging in this kind of expression or perhaps just draw a brighter line between when an employee is on-duty or off-duty.
The more significant result would be a decision overturning Smith. The implications of that for teachers and school officials would be significant but unclear. Certainly, it would require schools to make greater accommodations for the religious practices of employees, but courts would have to address the very questions that Scalia wanted to avoid. What sorts of practices are central to a person’s faith? What counts as a sincere religious belief? What are impermissible burdens on someone’s religious exercises? Scalia thought that those questions were not appropriate for the court to ask and to do so would be “courting anarchy”. Right now, it appears that at least four conservative justices are willing to take that risk.
— Joshua Dunn
Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.