Kennedy V. Bremerton School District: A Coach's Prayers Are Answered

• Published date: 04 July 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Education, Trials & Appeals & Compensation
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Thomas B. Mooney and Natalia Sieira Millan

On June 27, 2022 the United States Supreme Court surprised many observers by holding that the free exercise and free speech rights of a football coach employed by a public school were violated when his employment was terminated after he refused to comply with a school district directive not to pray publicly on the football field after games. Both the district court and Ninth Circuit Court of Appeals had rejected the coach's arguments that the directive violated his First Amendment rights on the basis that the coach's actions could be seen as state support for religion in violation of the Establishment Clause. On a 6-3 vote, however, the United States Supreme Court reversed. Justice Sotomayor issued a dissenting opinion in which Justices Breyer and Kagan joined.

In Kennedy v. Bremerton School District, No. 21-418, 597 U.S. __ (2022), the Court described the facts of the case as follows. Joseph Kennedy, the coach, engaged in two practices that the school district found objectionable: (1) leading players in a pre-game prayer in the locker room (a practice that predated the coach's employment), and (2) including overtly religious references in post-game motivation speeches "likely constituting prayer" with students at mid-field. The coach ended both practices. But he asked for "the opportunity to wait until the game is over and the players have left the field and then walk to mid-field to say a short, private personal prayer." Consistent with then applicable precedent under the Establishment Clause, district officials denied that request, and they forbade Mr. Kennedy "from engaging in 'any overt actions' that could 'appear to a reasonable observer to endorse . . . prayer . . .while he is on duty as a District-paid coach." Despite that directive, the coach engaged in prayer at mid-field on three separate occasions thereafter, whereupon he was suspended and ultimately dismissed from employment as a coach.

Writing for the majority, Justice Gorsuch noted that the three constitutional principles involved here - free speech, free exercise, and establishment - are all included in one sentence in the First Amendment, and he expressed the view that these principles should be reconciled, not seen in conflict. The Court started its analysis by noting that the district's prohibition of such prayers was clearly based on the religious nature of the coach's actions, which implicated his free exercise rights. The Court then determined that the prohibition also implicated the...