U.S Supreme Court Finds High School Coach's Post-Game Prayers Covered Under First Amendment

• Published date: 05 August 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• Law Firm: Ford & Harrison LLP
• Author: Ms Johanna G. Zelman and Kadale Lubin

Executive Summary: The recent Supreme Court decision in Kennedy v. Bremerton School District, 142 S. Ct. 2407 (June 27, 2022), is the latest to promote free exercise of speech and religion over all other competing interests. In its June 27, 2022 opinion, the Court's conservative majority held that the Free Exercise and Free Speech clauses of the First Amendment protect an individual engaging in personal religious observances from government reprisal, even when he does so on school property at a school-sponsored event. Kennedy held that a coach may pray at the 50-yard line after a high school football game. The decision strays from and overturns prior Supreme Court precedent established in Lemon v. Kurtzman, 403 U.S. 602 (1971), adhering to the separation of church and state, one of the United States' founding principles.

In Kennedy, Coach Kennedy kneeled in prayer at the end of each game at the 50-yard line and recited prayers of gratitude for "player safety, sportsmanship, and spirited competition." At first, Kennedy's midfield prayers were alone, but over the years he was joined by players, the public and even opposing teammates. Once the school district of Bremerton became aware of the practice, it sent Kennedy a letter stating that he was "free to engage in religious activity, including prayer, so long as it did not interfere with job responsibilities," but prohibited students from joining him. Kennedy sent a letter to school officials explaining that his "sincerely held religious beliefs" obligated him to continue his "post-game personal prayer." Kennedy was placed on administrative leave for failing to comply with district policies. The school did not rehire him the following the season.

In his lawsuit, Kennedy asserted his right to "act in accordance with his sincerely held religious beliefs," alleging violations under Title VII and the Free Speech and Free Exercise Clauses of the First Amendment. The District Court denied his request for a preliminary injunction ordering his reinstatement, and the Ninth Circuit affirmed. Both courts held Kennedy was a public employee and, thus, his speech was not protected under the First Amendment. Kennedy's petition for certiorari to the Supreme Court eventually was granted.

Justice Neil Gorsuch authored the 6-3 decision, rejecting the school district's argument that allowing Kennedy's prayers violates the Establishment Clause, which established separation of church and state. In doing so, Kennedy overturned Lem...