Today’s decision in Kennedy v. Bremerton reinforces a significant shift in the Supreme Court’s posture towards religion and education. Following the pattern established in Trinity Lutheran v. Comer, Espinoza v. Montana, and last week’s Carson v. Makin, the court is placing far greater emphasis on the Free Exercise Clause and, in the process, substantially modifying its interpretation of the Establishment Clause. In this case, the court also buttressed the speech rights of public-school employees in ways that will likely extend far beyond the issue of religion.
Joseph Kennedy, an assistant football coach, had been fired by the Bremerton, Washington school district when he refused to stop praying after games. For seven years, Kennedy had prayed post-game at the middle of the field without incident. While he had originally done this by himself, some of the Bremerton players eventually asked to join him. Those players then invited players from opposing teams to join them. This led a coach from an opposing team to alert Kennedy’s school that the coach was violating the Constitution. School administrators then instructed Kennedy that, if he wanted to continue praying, he could only do so in a private space away from the players. He refused and told the school that he would continue to pray at midfield and that, if students wanted to join him, he would not forbid them. The school then fired him. Kennedy challenged his firing as a violation of his free speech and free exercise rights under the First Amendment, leading to today’s ruling.
Most importantly, the majority opinion by Justice Gorsuch, joined by Roberts, Thomas, Alito, Barrett, and Kavanaugh (who joined all but one section of the opinion), officially ruled that the three-pronged Lemon Test should not guide judicial analysis of alleged Establishment Clause violations. This aptly named test arose from 1971’s Lemon v. Kurtzman and held that government policy 1) must have a secular legislative purpose, 2) must not primarily advance or inhibit religion, and 3) must not create an excessive entanglement with religion. The test proved hopelessly unworkable and contradictory in practice. Most obviously, whatever steps government officials could take to ensure that a policy did not advance religion risked creating excessive entanglement. Over time, this flaw led a majority of justices to call for its burial—but never, until Kennedy v. Bremerton, at the same time.
In 2019, the court ruled in American Legion v. American Humanist Association that the test would no longer apply to evaluation of public monuments, but its status in other areas, including in education where it was applied most often, remained unclear (see “Supreme Court Partially Junks a Lemon,” Legal Beat, Winter 2020). Today’s opinion officially laid it to rest. Gorsuch wrote that judicial inquiry into potential Establishment Clause violations should instead be based on “‘reference to historical practices and understandings’ and must be consistent with ‘the understanding of the Founding Fathers.’” This would indicate that the court might take a more relaxed approach towards some forms of prayer in school or school related activities such as graduation ceremonies since those certainly were not considered Establishment Clause violations for most of American history.
The court also eliminated the Endorsement Test—sometimes considered an offshoot of Lemon and sometimes considered a replacement for the second prong—which held that government should not do anything that might signal to religious dissenters that they are outsiders. That test also proved unworkable because no one knows exactly when government might cross that line. That uncertainty led it to be ridiculed as the “Two Rudolphs and a Frosty Rule” or the “Plastic Reindeer Rule.” Public schools had to be certain that any Christmas display also included symbols from other either secular or religious celebrations of the winter solstice.
The court ruled not only that the Lemon Test must go but also that the Establishment Clause could not be used as a justification to violate free speech and free exercise rights. “Both the Free Exercise and Free Speech Clauses of the First Amendment,” Gorsuch wrote, “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 court said that ruling against Kennedy would have also authorized firing a Muslim teacher for wearing a headscarf or a Christian teacher for praying over “her lunch in the cafeteria.”
The decision is likely to expand the free speech rights of public-school teachers and other government employees because the court ruled that Kennedy’s speech was private and on a matter of public concern. Under the standard established in 2005’s Garcetti v. Ceballos, speech by government employees is not protected if it is made “pursuant” to their “official duties.” Since the court rejected Bremerton’s claim that Kennedy’s speech was part of his official duties, other school districts will have to exercise caution in claiming that speech on matters of public concern—a much broader category than religious speech—is part of an employee’s official duties and thus punishable, particularly when the speech occurs outside of the classroom. The majority clearly feared that the government could use “‘excessively broad job descriptions’” to undermine the rights of government employees.
The court’s liberal bloc of Sotomayor, Breyer, and Kagan dissented. Writing for the three, Sotomayor contended that Kennedy was acting in his official capacity and that “school officials leading prayers” is “constitutionally impermissible.” Most importantly, though, she argued that the court should not have overruled Lemon and its three-pronged test in favor of a “‘history and tradition’ test.” Public schools, she argued, offer unique challenges that might require limiting speech under the Establishment Clause that would otherwise be protected.
Moving forward, schools will certainly have far more flexibility in accommodating religious speech. In fact, considering the court’s focus on the original understanding of and practices under the Establishment Clause, schools will be required to accommodate more religious speech. The majority did maintain that the government cannot coerce citizens to engage in religious practices. One suspects that future legal controversies will hinge on how the court defines coercion. If the court’s analysis will truly focus on history and tradition then that definition will likely be quite limited. Previously, the court has said that psychological coercion or essentially peer pressure could count as coercion under the Establishment Clause. One suspects that today’s majority would have doubts that that would count as coercion and would lean toward the late Justice Scalia’s definition, which was that coercion only occurs when the government punishes you for refusing to support a particular religion.
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.