Church and State: U.S. Supreme Court Makes Changes to Establishment Clause Analysis

The United States Supreme Court issued a 6-3 decision on June 27, 2022, that significantly affects the analysis courts use to determine whether the Establishment Clause of the First Amendment has been violated. The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion,” and it has long been interpreted to apply to state and local governments.

The case, Kennedy v. Bremerton School District, arose in Washington State. Joseph Kennedy (Kennedy), a public high school football coach, took a knee on the 50-yard line after games and prayed. At times, he was joined by members of his team and the opposing team, and Mr. Kennedy began incorporating short motivational speeches into his prayer. The team also at times engaged in pregame and postgame prayers in the locker room.

These prayers had taken place for some time, but when the Bremerton School District (District) first found about them, it asked him to stop. It reasoned that while students are free to pray, employees of the District should not lead students in prayer and should neither encourage nor discourage student prayer. Mr. Kennedy agreed to stop offering locker room prayers but asked that he be allowed to say a “short, private, personal prayer” on the field after games. The District responded by stating that Mr. Kennedy should not engage in actions that would appear to a reasonable observer to endorse prayer while on duty as a coach. The District believed that its position was required under the Establishment Clause.

In the final three games of the 2015 season, Mr. Kennedy knelt at the 50-yard line for a short, quiet prayer. At the end of the season, the District placed Mr. Kennedy on paid administrative leave and gave him a critical performance evaluation for failing to adhere to District policy. Mr. Kennedy did not return the following year as coach and brought suit against the District, alleging it violated his right to free speech and free exercise of religion.

Interplay of First Amendment Clauses

 Mr. Kennedy’s claims were based on a violation of the First Amendment’s Free Exercise Clause (“Congress shall make no law prohibiting the free exercise” of religion) and the Free Speech Clause. Note that these clauses concern individual liberties, while the Establishment Clause is a restriction on government action.

In its analysis, the majority opinion focused heavily on the events surrounding the last three games of the season, at which Mr. Kennedy prayed quietly at the 50-yard line. With respect to the Free Exercise Clause, the Court found that the District’s prohibition of overt religious conduct was not neutral because the District singled out religious activity while permitting secular conduct of a similar nature. Specifically, the majority pointed out that coaching staff were permitted to forgo supervising players after the game to do things like visit with friends and take personal calls. Such personal activity conducted on the field should be treated no differently than quietly praying.

With respect to free speech, the Court noted the complex interplay between free speech rights and government employment. And in so doing, the Court stated that the question boils down to whether Mr. Kennedy offered his prayers in his capacity as a private citizen or did they amount to government speech attributable to the District (for more on government speech, see my May 2022 blog on the topic). The Court noted that at the times Mr. Kennedy said his three short, silent prayers, he was not engaged in speech ordinarily within the scope of his duties as a coach. It also reiterated that while Mr. Kennedy prayed, other members of the coaching staff were free to engage in other forms of private speech. As a result, Mr. Kennedy’s prayers could not be viewed as government speech.

The Court then addressed the role of the Establishment Clause, and in so doing, overruled the 1971 U.S. Supreme Court case of Lemon v. Kurtzman. The Lemon Court Establishment Clause analysis calls for an evaluation of the purposes and effects of an action and whether it fosters “excessive government entanglement with religion.” The Court asserted that the Lemon test for Establishment Clause violations caused chaos in lower courts and led to differing results in materially similar cases. Also, in the Court’s view, the Establishment Clause test in Lemon overemphasizes the importance of the Establishment Clause in relation to the Free Speech and Free Exercise clauses.

Now that the Lemon Establishment Clause test has been struck down, what test should government agencies apply? Although the Court found that Mr. Kennedy’s conduct did not violate the Establishment Clause, it did not articulate a specific test to replace it. The Court characterized Lemon as taking an ambitious, abstract, and ahistorical approach to the Establishment Clause, explaining that it must be interpreted in reference to the historical practices and faithfully reflect the understanding of the Founding Fathers.

The Court did note that coercion to participate in religious activity raises legitimate Establishment Clause concerns. It observed that government may not make religious observance compulsory, nor may it force individuals to engage in a formal religious exercise. The majority found that coercion was not an issue with respect to Mr. Kennedy’s individual, silent prayers at midfield.

The Dissent

The dissent looked at a broader range of facts than the majority opinion. The dissent found it relevant that Mr. Kennedy had, at times, led students in pregame and postgame prayers in the locker room and had led prayers with players that included motivational speeches with overtly religious references. Those prior practices were not part of the majority’s analysis. More fundamentally, the dissent asserted that the Establishment Clause should prohibit a school district employee from incorporating a public, communicative display of the employee’s personal religious belief into a school event.

The clash between the majority and the dissent represents fundamental differences over the concept of separation of church and state which is reflected more broadly in society. And because this case received significant local media coverage, it is important to keep in mind that the majority decision is limited: it upholds Mr. Kennedy’s right to kneel and say a personal prayer at midfield after games. It does not address leading public high school students in prayer at midfield or in the locker room. Such practices would raise coercion concerns under the majority’s analysis.

How Does Kennedy Impact Local Governments?

The full impact of Kennedy will become more apparent over time as new cases are decided under the new Establishment Clause guidelines set forth by the Court. In the meantime, here are a few topic areas to think about:

• Employee religious conduct in the workplace: Kennedy illustrates the dangers of treating religious speech and conduct in the workplace differently from comparable non-religious conduct. Most employers tolerate a certain amount of non-work-related speech and conduct while employees are working. Local governments should ensure that their personnel and computer/technology use policies are written and applied in a manner that does not discriminate based on an employee’s religious beliefs.
• Holiday displays and events: Nativity scenes and other holiday displays are tricky because some decorations are more religious than others. Sometimes a display will consist of both religious and nonreligious elements, and some displays will include elements that recognize more than one religion. Whether a holiday display or event violates the Establishment Clause has always been a fact-dependent question, but courts may take a more hands-off approach in light of Kennedy.
• Opening public meetings with prayer or a moment of silence: This practice was addressed in the 2014 U.S. Supreme Court Case of Town of Greece v. Galloway, which is cited with approval in the Kennedy case. Legislative prayer, such as an opening prayer at a council meeting, is compatible with the Establishment Clause. The prayer need not be nonsectarian or nondenominational, but it should not advance or disparage specific faiths or beliefs. The prayer should be directed to members of the governing body to lend gravity to the occasion and reflect on shared ideals and common ends before the body embarks on the business of governing. To avoid the appearance of endorsing any particular religion, a local government must maintain a policy of nondiscrimination with respect to who gives prayer. Kennedy does not appear to have changed the rules for legislative prayer.

Conclusion

Kennedy is part of a longer-term trend in which the U.S. Supreme Court has deemphasized the role of the Establishment Clause in limiting governmental action. MRSC is interested in what local governments are doing in response to this trend. Does your agency have policies that address Establishment Clause topics like legislative prayer or holiday displays? If so, please send them to MRSC.