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Today, the U.S. Supreme Court ruled 6-3 in favor of a high school football coach who was fired for silently praying on the field after games. Relying on both the First Amendment Free Speech and Free Exercise Clauses, the High Court ruled that the Bremerton School District violated both provisions when it fired Coach Joe Kennedy for having prayer on the 50-yard line of the football field after the game. The Court also finally buried the court-made “Lemon” test, citing Liberty Counsel’s 9-0 decision handed down on May 2, 2022, in Shurtleff v. City of Boston involving the Christian flag.

In Kennedy v. Bremerton School District, in 2008, Bremerton High School football coach Joe Kennedy made a promise to God that he would pray and give thanks after each game he coached, regardless of the outcome. Coach Kennedy would simply drop to one knee and pray for 15-30 seconds on the 50-yard line at the end of games to “offer a silent or quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Initially, Kennedy prayed quietly and alone. After several games, some students took notice and joined him. If students gathered, Kennedy began offering short motivational speeches to players, ending with a brief prayer. Sometimes no players gathered, and he prayed alone. He did this for seven years without any complaints by school officials. Then in 2015, the school district ordered Kennedy to stop, stating his practice violated the Establishment Clause of the U.S. Constitution. When he refused, the district terminated him.

The High Court focused on two questions: (1) Whether a public school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.

Today, the High Court says, “It is clear that Kennedy’s speech was private rather than government speech.”

The majority opinion is written by Justice Gorsuch in which Justices Roberts, Thomas, Alito, and Barrett. Justice Kavanaugh joined, except as to Part III–B. Justices Thomas and Alito filed concurring opinions. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined.

The High Court holds that both the free exercise and free speech clauses protect Kennedy’s right to pray at midfield following high school football games. The fear of offending the Constitution’s establishment clause does not, Justice Gorsuch wrote, require the government “to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

Kavanaugh joined in the majority opinion except for Part III-B, which covers the Pickering-Garcetti test for whether Kennedy acted as a private citizen or whether it was which it was speech which the government could regulate.

The Court wrote there is no actual conflict between the free speech/free exercise clauses and the establishment clause. There is only a “mere shadow” of a conflict, which Justice Gorsuch describes as “a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.”

The Supreme Court addressed the “Lemon Test,” used to determine if a law violates the First Amendment. Its name comes from Lemon v. Kurtzman, in which the Court ruled that a Rhode Island law that paid some of the salary of some parochial school teachers was unconstitutional.

The High Court wrote today, “What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.”

The Supreme Court says it “long ago abandoned Lemon [v. Kurtzman, about whether the establishment clause has been violated], and its endorsement test offshoot.” Instead of Lemon, the Court says, the Supreme Court “has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

Last month, Liberty Counsel won 9-0 at the Supreme Court in a separate case, Shurtleff v. City of Boston. In that case, like in the Coach Kennedy case, the government argued that what otherwise appears to be private speech is government speech. The Justices referred to that case in today’s opinion: “In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test (See Shurtleff, 596 U. S.).

The High Court further writes, “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

“In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. As it put it in its September 17 letter, the District prohibited ‘any overt actions on Mr. Kennedy’s part, appearing to a reasonable observer to endorse even voluntary, student-initiated prayer.’ The District further explained that it could not allow an employee, while still on duty, to engage in religious conduct. Prohibiting a religious practice was thus the District’s unquestioned ‘object.’ The District candidly acknowledged as much below, conceding that its policies were ‘not neutral’ toward religion.”

“Applying these lessons here, it seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. 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 “ow[e 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. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play. Garcetti, 547 U. S., at 421. Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.”

“To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The High Court also wrote, “Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a

Liberty Counsel filed an amicus brief in Kennedy v. Bremerton School District, in support of coach Joe Kennedy, an 18-year Marine veteran. On January 18, 2022, Liberty Counsel presented oral argument in a separate case, Shurtleff v. City of Boston. In that case, like in the Coach Kennedy case, the government argued that what otherwise appears to be private speech is government speech. Today, the Court cited Shurtleff to finally bury the so-called Lemon test.

Liberty Counsel’s Founder and Chairman Mat Staver said, “This is a great victory that affirms that every American has the right to engage in religious expression without fear of punishment. Banning a coach from silently praying after a game is illogical and unconstitutional. Today the Court finally buried the Lemon test that has caused so much damage to the First Amendment Establishment Clause. The Court recognized that the Free Speech, Free Exercise, and Establishment Clauses are on the same amendment and are not at war with each other.”

field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims.”


Author: Liberty Counsel


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