U.S. Supreme Court addresses prayer, government speech, and Bremerton football in landmark First Amendment case
BY CAESAR KALINOWSKI IV
In June 2022, the U.S. Supreme Court resolved a First Amendment controversy stemming from a Washington high school coach’s religious activities on the football field. In Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407 (2022), the Court held that the school district violated Coach Joseph Kennedy’s rights to free exercise of religion and free speech by punishing him for praying on the field after football games. Reversing the Ninth Circuit court that had affirmed the trial court’s grant of summary judgment to the school district on the basis of an Establishment Clause violation, Justice Neil Gorsuch’s majority opinion drew a spirited dissent and left open questions regarding religious tolerance and coercion by public officials.
Beginning in 2008, Joseph Kennedy served as an assistant high school football coach at Bremerton High School, id. at 2416, a school with over 1,000 students situated 14 miles west of Seattle on Washington’s Kitsap Peninsula. A practicing Christian, Kennedy began a tradition of quietly kneeling and praying on the football field’s 50-yard line after games. Id. Although he initially prayed alone, members and coaches of both teams, students, and spectators would eventually join Kennedy, who held aloft a Bremerton helmet but claimed he “never pressured or encouraged any student to join” his postgame midfield prayers. Id. After the Bremerton School District learned of Kennedy’s school-related religious activities in 2015, a series of letters and exchanges between the parties occurred over what the district termed “problematic practices” that could violate the Establishment Clause. Id. at 2416-17.
Although Kennedy agreed to cease certain practices, he continued to defy the district’s request that he pray elsewhere; instead, he engaged in silent prayers while Bremerton players were otherwise occupied. Id. at 2418. He also, however, made media appearances in which he publicized his intentions to continue his midfield prayer. Id. at 2437. This led to participation in the prayers by members of the public and the opposing team, resulting in additional media attention and security issues at the school. Id. at 2438. Eventually, the district placed Kennedy on paid administrative leave and the head coach gave him a poor annual review based on those occurrences. Id. at 2418-19.
FREE SPEECH, FREE EXERCISE, AND THE ESTABLISHMENT CLAUSE
Feeling he had been constructively discharged, Kennedy sued the district in federal court for violating his free speech and exercise rights under the First Amendment. Following discovery, the District Court for the Western District of Washington (Hon. Ronald B. Leighton) granted summary judgment in the school district’s favor after concluding that Kennedy’s prayers (1) were not entitled to protection under the Free Speech Clause because his speech was made in his capacity as a public employee and (2) violated the Establishment Clause by conveying official sanction because they were from the center of the football field “at a time when the general public could not access the field,” which superseded his right to free exercise. 443 F. Supp. 3d 1223, 1236-40 (W.D. Wash. 2020). The Ninth Circuit affirmed, largely on the same grounds. 991 F.3d 1004, 1015-19 (9th Cir. 2021) (noting that “Kennedy used his access as a school employee to conduct his religious activity”).
On appeal to the U.S. Supreme Court, however, a 6-3 majority reversed and held that Kennedy had established that the school’s sanctions violated his rights to free speech and exercise—notwithstanding the district’s concerns about official endorsement and the location of the prayer. Focusing heavily on the intended nature of Kennedy’s private prayer and a lack of evidence of coercion, the opinion held that Kennedy did not engage in official speech because he “was not seeking to convey a government-created message,” “instructing players, … or engag[ing] in any other speech the district paid him to produce as a coach.” 142 S. Ct. at 2424. Noting that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic,” the Court affirmed that “in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” Id. at 2432-33.
Writing for the dissent, Justice Sonia Sotomayor viewed the facts in radically different ways and framed the case as “whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event.” Id. at 2434. Asserting that it need not, the dissent recounted the large public response to Kennedy’s actions and pointed out the implicitly coercive nature of a football coach using his position to lead prayers. Id. at 2437-38; 2443-44. Specifically, the dissent noted that “Kennedy was on the job as a school official ‘on government property’ when he incorporated a public, demonstrative prayer into ‘government-sponsored school-related events’ as a regularly scheduled feature of those events.” Id. at 2443. The dissenting justices believed there was a clear Establishment Clause violation and the majority’s opinion “elevate[d] one individual’s interest in personal religious exercise … over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.” Id. at 2453.
In light of the hotly disputed factual positions taken by each side, the Court’s decision is bound to raise significant issues and litigation regarding religious speech and conduct by government officials in years to come. Starting in the early 1970s, the Court held that Establishment Clause claims should be examined under the test established in Lemon v. Kurtzman, which reviewed the government action to ensure (1) a secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) that it does not foster excessive government entanglement with religion. 403 U.S. 602, 612–13 (1971). In Kennedy, the Court asserted that it “long ago abandoned Lemon”—which had come under significant criticism—and instead “instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” 142 S. Ct. at 2427-28 (citation omitted).
In practical terms, however, the Court’s admonition does little to clarify how expansively schools must “tolerate speech or prayer of all kinds” or how courts should examine the facts in dissimilar cases. See id. at 2430. Indeed, outside the Judeo-Christian context, it’s unclear whether minority religions with unique practices would be afforded the same deference in school space restricted to the public. Would a teacher who practices Santeria, for example, be permitted to loudly pray over a sacrificed animal in the lunchroom? See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (concluding violations of free exercise occurred where statute prohibited religious animal slaughter in a house of worship on land leased from the city). As schools must now grapple with these issues, it is likely that we will see a proliferation of laws of general applicability meant to address such concerns without targeting religion.
Nevertheless, Justice Gorsuch’s broad endorsement of “learning how to live in a pluralistic society” even though “some will take offense to certain forms of speech or prayer” should stand to protect religious minority rights against potential discrimination. 142 S. Ct. at 2430. The majority opinion in Kennedy could surely be cited to support an argument that a Muslim teacher should be permitted to conduct multiple daily prayers in the classroom—regardless of whether students wish to participate or emulate the practice. See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2277 (2020) (“What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?”) (Gorsuch, J., concurring). On the other hand, the majority’s heavy reliance on the notion that there was no “evidence that students felt pressured to participate in these prayers” could be used to distinguish Kennedy through proving coercion by student testimony. See 142 S. Ct. at 2430.
Ultimately, notwithstanding disputes about the public nature of Kennedy’s religious activity or the outcome for the Bremerton school district in this particular case, we do know a few things for certain: Kennedy is likely to be invoked by parties on all sides, the facts in disputes over officials’ religious practice are going to be highly scrutinized, and there will be significant litigation in forthcoming years over speech in areas limited to the public and schools’ attempts to pass rules that address these matters.
Comments from Local Counsel
BY JEFFREY HELSDON*
It has been over seven years since I received a phone call from lawyers in Dallas and Oklahoma City exploring my interest in serving as local counsel in Kennedy v. Bremerton School District. The rewarding journey would take us to the U.S. District Court three times, to the 9th Circuit twice, and twice to the U.S. Supreme Court.
Local counsel’s responsibilities are set forth in LCR 83.1(d)(2). Local counsel attests “that he or she is authorized and will be prepared to handle the matter in the event the applicant is unable to be present on any date scheduled by the court.”
The readiness obligation requires local counsel to be fully vested in the case at every stage and prepare for and attend all hearings. Readiness in this case meant being well versed in the First Amendment jurisprudence involved as well as the interplay between those cases and the unique set of facts in the case. As local counsel, I prepared for and attended each deposition taken to ensure that we had tied the loose ends four of the justices mentioned in their statement in denial of certiorari. For small-firm practitioners, this can be daunting; particularly for a high-profile case like Kennedy. I actively participated in every level. There were no fewer than five other law firms involved over time. Many of them played roles in part, but not all, of the stages of the case. A smaller core of lawyers was there from beginning to end. It was critical to develop close relationships with one another. We were able early to gauge how each of us approached tactical litigation decisions, client relations, and media questions. It was important to know in which lane each of us was running. We were able to do that well because of the great respect we developed for one another over the seven years since the 2015 football season. Because I live in Gig Harbor, while the other lawyers were in D.C., Oklahoma, or Texas, I had the main responsibility for communicating with Joe Kennedy about activity in the case. As a result, we have developed a close, abiding friendship. There was significant public interest in the case, exemplified by over 35 amicus briefs filed in the Supreme Court and by the intense media attention throughout. As local counsel, I passed along all media inquiries to the lawyers assigned that task while accompanying Kennedy to many media events to provide him with counsel beforehand and debriefing thereafter.
“This is one of those cases that make you want to be a lawyer, to argue and deal with complex, sensitive issues in a public way. That’s why I wanted to be a lawyer. I suspect that many of you feel the same way,” said U.S. District Court Judge Ronald B. Leighton at the preliminary injunction hearing in Kennedy in 2016. Indeed, he was right. Kennedy ends up as the last litigation case in my career as I focus now on my transactional practice, estate and business succession planning, and IRC Section 1031 exchanges. It was quite a way to go out. Tom Brady: you should have taken note.
*Local counsel for plaintiff/appellant Joseph Kennedy. As this issue went to press, local counsel for defendant/respondent Bremerton School District had not responded to requests for comment.