The US Supreme Court ruled 6-3 Monday that Joseph Kennedy, a high school football coach, was wrongfully terminated by the Bremerton School District. Kennedy had been holding prayers with students for eight years when the school asked him to refrain from continuing the practice due to Establishment Clause concerns. Kennedy briefly stopped and then resumed the practice, resulting in his suspension.
The Court ruled that the test used by the lower court derived from Lemon v. Kurtzman was not the appropriate constitutional test to apply in this case. Instead, Justice Neil Gorsuch, writing for the majority, states, “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings”, referring to a decision in Town of Greece v. Galloway.
The new test for balancing the Establishment Clause and Free Speech Clause for public employees will now be derived from Pickering v. Board of Education and Garcetti v. Ceballos and will include two steps. According to Gorsuch, the first step “involves a threshold inquiry into the nature of the speech at issue.” He goes on to say, “[w]hen an employee speaks as a citizen addressing a matter of public concern, the Court’s cases indicate that the First Amendment may be implicated and courts should proceed to a second step.”
The second step “remains where the government may seek to prove that its interests as employer outweigh even an employee’s private speech on a matter of public concern.” The court also confirmed that both Establishment Clause and First Amendment clause cases of this type should receive strict scrutiny, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah and Reed et al. v. Town of Gilbert, Arizona et al.
Justice Sonia Sotomayor, writing for the dissent, rejected the characterization of Kennedy’s prayers as “private” speech by the majority, saying:
To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50- yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.
The American Civil Liberties Union responded to the ruling, saying:
The freedom to hold beliefs that differ from those with authority has been a founding principle of our country. It is disappointing that today’s decision erodes protections for public school students to learn and grow free of coercion … This decision strains the separation of church and state—a bedrock principle of our democracy–and potentially harms our youth.
Former Vice-President Mike Pence celebrated the decision, saying he was “[g]rateful for Coach Kennedy’s courageous stand for Religious Freedom and proud that American Freedom [Pence’s foundation]…will always stand for the Freedom of Religion of every American of every Faith!”