Public employees do not lose their right to pray on the job.
Public employees do not lose their right to pray on the job.
J oe Kennedy, an assistant football coach at a public high school in Washington State, felt impelled to kneel in prayer on the field after games. He was disciplined and ultimately lost his job. Today, the Supreme Court ruled 6–3 in his favor, finding that his First Amendment rights to free speech and free exercise of religion were violated. Justice Neil Gorsuch’s majority opinion in Kennedy v. Bremerton School District rejected the school district’s irrational view that allowing a single public employee to pray by himself was the equivalent of establishing a state church under the establishment clause.
The Court went where it declined to go in last week’s school-choice decision and formally abandoned the Lemon v. Kurtzman “entanglement” test, under which an establishment-clause violation could be found any time a school was “entangled” with religion. That test never had any basis in the Framers’ ban on official state churches and proved hopelessly unworkable in practice.
The scandal of Kennedy v. Bremerton is that it was not unanimous. Justice Sonia Sotomayor, writing for the three liberal justices, filed yet another overheated dissent warning of “all of our rights hanging in the balance” because one man was free to thank the Lord where others could see him doing so. Wearing a cross or a yarmulke to work would send the same message; the right to do that, too, would be insecure under Sotomayor’s vision.
This is a powerful decision in favor of the rights of religious Americans and against the hysterical efforts of public school districts to treat their speech as having less protection than, say, a Colin Kaepernick–style secular political protest. The right to kneel on a football field in personal prayer is, if anything, more protected in our law than the right to kneel on a football field in political protest. (Full disclosure: several years ago, I co-authored an amicus brief in support of Coach Kennedy when this case was first before the Ninth Circuit.)
There is also a great irony in progressives and liberals arguing — as Sotomayor did — that it is “coercive” for an assistant football coach to pray individually on the job simply because his students could see him do so. That stance is ironic because the same people insist, in battles over critical race theory and classroom discussion of sexuality and gender, that the free-speech rights of public-school teachers pose no threat of indoctrination of children even when the teachers are delivering a formal classroom lesson from the school-mandated curriculum. Any reasonable person understands that a lesson delivered at the front of a classroom full of second-graders is vastly more coercive than a lone prayer at the conclusion of a game by an assistant high-school football coach.
Indeed, when members of the team asked Coach Kennedy if they could join him, he responded, “This is a free country. You can do what you want.” Today’s decision proved him right, but only after he was out of work during seven years of litigation.
The Government’s Speech and the Coach’s Prayer
Public employees occupy a crossroads in the law. On the one hand, they are paid agents of the government, carrying out government functions, often (in this and other school cases) on public property. Teachers and coaches act as instructors and role models for impressionable young people, over whom they have a lot of formal and informal power. As a result, they are not simply free to say and do whatever they want on the job; they work for the taxpayers, and the elected government gets to decide what official actions they can take and what official messages they must or may deliver. If there is a significant risk that the speech or act of the teacher or coach will be understood as the official message of the school, they can properly be told to do it on their own time, just as a private employer could tell them the same thing.
On the other hand, public employees do not lose all of their individual rights when they walk through the door of the workplace. They cannot, for example, be compelled to wear campaign buttons for a political candidate they oppose. That is an even more urgent concern where the free exercise of religion is concerned. It may be fair enough to tell people to leave their political opinions for their free time, but there is no time during which a religious believer stops believing.
There are some seriously knotty issues at the intersection of the government’s right to dictate the message its employees send and the employees’ right to conscience. But Coach Kennedy’s case was not a hard one. His prayer was individual and voluntary; while it was still visible on the field of play, it was done (unlike Kaepernick-style anthem protests) during a time when no official activity was taking place. As Gorsuch noted, this was “a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.”
As the Court noted, Coach Kennedy had previously held himself out as a role model for students who wished to pray along with him, but this was their free choice:
Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. . . . Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated Mr. Kennedy’s tenure. . . . Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity.” In particular, he “never pressured or encouraged any student to join” his postgame midfield prayers. . . . For over seven years, no one complained.
In any event, Kennedy stopped all of this when the school demanded it, and that alone sent a powerful message that the prayers were not endorsed by the school. What he refused to do was stop praying silently at the end of games. He felt that his faith — a covenant he had made with God when he committed to Christianity after years away from the faith — demanded this.
Religious People Are Allowed to Be Role Models
There was no real dispute that the school district discriminated against Kennedy’s speech because it was religious, and the Court concluded that it was obviously his own speech and not government speech that could properly be regulated by his employer:
When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ordinarily within the scope of his duties as a coach. . . . He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. . . . Simply put: Mr. Kennedy’s prayers did not owe their existence to Mr. Kennedy’s responsibilities as a public employee. . . .
We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen.
Gorsuch rejected the view that Kennedy’s status as a role model should be held against his right to free expression when he was not engaged in government speech:
Teachers and coaches often serve as vital role models. But this argument commits the error of positing an excessively broad job description by treating everything teachers and coaches say in the workplace as government speech subject to government control. . . . On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.
Careful readers will note where this doctrine will matter in sexuality and gender-identity cases: It will not help teachers who want to introduce books and classroom lessons the state deems age-inappropriate, but it may well protect the gay teacher who wants to be able to keep a family photo on his desk. The frontiers of that clash are still ahead, especially when dealing with the instruction of very young children, where the state may have a stronger interest in limiting the topics of informal instruction and role-modeling.
One Man Is Not a Government Church
Where Sotomayor’s dissent comes in is the insistence of the three liberals that religion is different — that, say, a Muslim headscarf is a much more dangerous thing to display in a classroom than a photo of two lesbians. She argued that the establishment clause forbids schools from permitting its employees to be religiously demonstrative — from engaging in any “public, communicative display of the employee’s personal religious beliefs” — while on the job. “Kennedy’s free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts.” To ban “participation in religious exercise” is to set a standard that places the exercise of religion on a more disfavored footing than, say, the expression of sexual orientation or gender identity.
Sotomayor framed the need to preserve rigid secularism and suppress religious expression in schools — under the guise of “government neutrality” — as essential to the educational mission of public schools:
Government neutrality toward religion is particularly important in the public school context given the role public schools play in our society. The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny, meaning that in no activity of the State is it more vital to keep out divisive forces than in its schools. Families entrust public schools with the education of their children on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.
Of course, this rhetoric of “divisive forces” and which ones parents are entitled to have kept out of the schools runs only one way; the people who champion it will in the same breath defend all manner of left-wing politics in the schools precisely because they see them as “the most pervasive means for promoting our common destiny.” Gorsuch replied that treating religious observance as a disfavored activity is itself a dangerous message to send to teenagers:
Learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry . . . This Court has long recognized . . . that secondary school students are mature enough to understand that a school does not endorse, let alone coerce them to participate in, speech that it merely permits on a nondiscriminatory basis. . . . Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But offense . . . does not equate to coercion. . . .
The District suggests that any visible religious conduct by a teacher or coach should be deemed — without more and as a matter of law — impermissibly coercive on students. In essence, the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression. . . .
Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.
Ominously, Sotomayor did not dispute that her proposed rule would require the firing of the teacher who wears a yarmulke, headscarf, or crucifix, or who says a blessing over lunch.
Similarly, Sotomayor suddenly discovers, in the context of solo, silent prayer, the risk of the sort of social pressure that our secular educational institutions pervasively exercise to promote cultural and political wokery:
The reasons for fearing this pressure are self-evident. This Court has recognized that students face immense social pressure. Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting. In addition to these pressures to please their coaches, this Court has recognized that players face immense social pressure from their peers in the extracurricular event that is American high school football.
Some players chose freely to follow their coach. This, Sotomayor wrote, must not stand:
Students at the three games following Kennedy’s changed practice witnessed Kennedy kneeling at the same time and place where he had led them in prayer for years. They witnessed their peers from opposing teams joining Kennedy, just as they had when Kennedy was leading joint team prayers. They witnessed members of the public and state representatives going onto the field to support Kennedy’s cause and pray with him. Kennedy did nothing to stop this unauthorized access to the field, a clear dereliction of his duties. The BHS players in fact joined the crowd around Kennedy after he stood up from praying at the last game. That BHS students did not join Kennedy in these last three specific prayers did not make those events compliant with the Establishment Clause. The coercion to do so was evident. . . .
Kennedy stresses that he never formally required students to join him in his prayers. But existing precedents do not require coercion to be explicit, particularly when children are involved. To the contrary, this Court’s Establishment Clause jurisprudence establishes that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.
Kennedy’s prayers . . . did not need to be broadcast. His actions spoke louder than his words. His prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive [than the audience before a football game].
Oh, the horror, the horror! But only because it is religious. All other forms of social pressure to promote orthodoxy are entirely welcome.
Fortunately, the majority of the Supreme Court believes otherwise. In Coach Kennedy’s words, “this is a free country. You can do what you want.”