Key Takeaways
- Kennedy v. Bremerton School District redefined the balance between the Free Exercise Clause and the Establishment Clause, holding that personal religious expression by public employees is protected, even in public settings, as long as it is not coercive or officially endorsed by the government.
- The Supreme Court’s decision marks a departure from the Lemon test, signaling a shift toward a history-and-tradition-based approach for evaluating Establishment Clause cases.
- This ruling has broad implications for public institutions, especially schools, regarding the accommodation and regulation of religious expression by employees and the potential boundaries of government neutrality toward religion.
Introduction
Kennedy v. Bremerton School District, 597 U.S. 507 (2022), is a landmark United States Supreme Court case that reshaped the legal landscape surrounding religious expression in public schools and public employment. Decided on June 27, 2022, the case addressed the complex interplay between an individual’s right to religious expression and the government’s obligation to avoid endorsing religion under the First Amendment’s Establishment Clause. The Court’s 6-3 decision, authored by Justice Neil Gorsuch, has been both celebrated as a victory for religious liberty and criticized as a threat to the separation of church and state.
This guide provides a comprehensive overview of the facts, procedural history, legal arguments, Supreme Court reasoning, and the broader implications of the decision. Attorneys, educators, public officials, and interested citizens will find an in-depth analysis of Kennedy v. Bremerton and its impact on constitutional law.
Background of the Case
The Parties Involved
Joseph Kennedy was a high school football coach at Bremerton High School in Bremerton, Washington. Known for his commitment to his players and his faith, Kennedy began a practice of kneeling and offering a brief, personal prayer at midfield after football games. Over time, some students and others occasionally joined him, though his prayers were not officially sanctioned or organized by the school.
The Bremerton School District is a public school district in Washington State. Concerned about potential violations of the Establishment Clause, the district instructed Kennedy to stop his post-game prayers on school property while on duty as a public employee.
The Conflict
The controversy began when school officials became aware of Kennedy’s post-game prayers and, after a series of communications, directed him to cease the practice. The school district reasoned that allowing Kennedy to continue could be perceived as an official endorsement of religion, potentially violating the Establishment Clause of the First Amendment.
Kennedy, believing that his rights to free speech and free exercise of religion were being infringed, refused to comply fully with the school’s directive. As a result, he was placed on administrative leave and his contract was not renewed. Kennedy then filed suit, alleging violations of the Free Speech Clause, the Free Exercise Clause, and Title VII of the Civil Rights Act of 1964.
Procedural History
Lower Court Proceedings
Kennedy’s lawsuit was initially dismissed by the district court, which found in favor of the school district. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, holding that the school district’s actions were justified to avoid an Establishment Clause violation. The appellate court found that Kennedy’s prayers, given their public and visible nature, could be interpreted as school endorsement of religion.
Supreme Court Review
Kennedy petitioned for certiorari, and the Supreme Court agreed to hear the case. The central questions before the Court were:
- Did the school district’s actions violate Kennedy’s First Amendment rights?
- How should courts balance the rights of public employees to religious expression with the Establishment Clause’s prohibition on government endorsement of religion?
The case attracted significant attention from religious liberty advocates, civil liberties organizations, and educational institutions, all of whom submitted amicus briefs.
For the full Supreme Court opinion, see Kennedy v. Bremerton School District, 597 U.S. 507 (2022).
Legal Issues Presented
Free Exercise and Free Speech Clauses
The First Amendment protects both the free exercise of religion and freedom of speech. Kennedy argued that his brief, personal prayers were protected under both clauses. He characterized his conduct as private religious expression, not government speech or an official school activity.
The Establishment Clause
The school district, on the other hand, contended that Kennedy’s prayers, occurring on the field immediately after games and often in view of students and spectators, could be perceived as an official endorsement of religion, violating the Establishment Clause.
Title VII Claims
Kennedy also raised claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on religion. However, the Supreme Court’s decision primarily focused on the constitutional issues.
The Supreme Court’s Decision
The Majority Opinion
Justice Gorsuch delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Kavanaugh (with Kavanaugh not joining Part III–B). The majority held that the school district’s actions violated Kennedy’s rights under the Free Exercise Clause and Free Speech Clause.
Key Findings
- Private Religious Expression Is Protected: The Court found that Kennedy’s prayers constituted private religious expression, not government speech. He did not coerce students to participate, nor did he use his official capacity to promote religion.
- No Establishment Clause Violation: The majority rejected the argument that the school’s accommodation of Kennedy’s prayer would amount to an Establishment Clause violation. The Court emphasized that the government does not endorse religion merely by allowing private religious expression in public settings.
- Abandoning the Lemon Test: The decision explicitly moved away from the Lemon v. Kurtzman (1971) test, which had governed Establishment Clause analysis for decades. Instead, the Court endorsed a “history and tradition” approach, focusing on the nation’s historical practices and understandings.
Rationale
The majority reasoned that the First Amendment requires government neutrality, not hostility, toward religion. The Constitution protects not only the right to worship privately but also the right to express religious beliefs in public, provided such expression does not coerce others or use government authority to promote religion.
The Court found no evidence that Kennedy’s prayers were coercive or that students were required to participate. Thus, the school district’s concerns about violating the Establishment Clause were unfounded.
The Dissent
Justice Sotomayor authored the dissent, joined by Justices Breyer and Kagan. The dissent argued that the majority’s decision failed to adequately consider the unique context of public schools, where students may feel subtle pressure to conform to the religious practices of authority figures.
The dissent warned that the ruling could erode the wall of separation between church and state, particularly in educational settings where the risk of coercion is heightened. The dissenters maintained that the school district’s actions were a reasonable effort to comply with the Establishment Clause and to protect students from religious pressure.
Analysis of Key Legal Principles
The Shift Away from the Lemon Test
For decades, the Supreme Court used the Lemon test, derived from Lemon v. Kurtzman, to assess Establishment Clause claims. The test considered:
- Whether the government action had a secular purpose,
- Whether its principal effect advanced or inhibited religion,
- Whether it fostered excessive government entanglement with religion.
In Kennedy v. Bremerton, the Court decisively moved away from this framework, criticizing its unpredictability and lack of grounding in historical practice. Instead, the majority embraced a tradition-based approach, focusing on the original meaning and historical understanding of the First Amendment.
This shift represents a major change in Establishment Clause jurisprudence and signals that future cases will be evaluated based on historical practices rather than abstract tests.
Balancing Free Exercise and Establishment
The decision in Kennedy v. Bremerton underscores the Court’s commitment to robust protection of religious expression, even in public employment contexts. The ruling clarifies that the government’s obligation is to remain neutral toward religion—not to suppress religious expression out of fear of violating the Establishment Clause.
The Court’s reasoning suggests that public employers, including schools, must tread carefully when restricting religious expression by employees. Unless there is clear evidence of coercion or official endorsement, such restrictions may violate the employee’s constitutional rights.
The Role of Coercion
A key factor in the Court’s analysis was the absence of coercion. The majority distinguished between private religious expression and actions that pressure or compel others to participate. The decision makes clear that voluntary, non-coercive religious expression—even by public employees—enjoys constitutional protection.
Implications for Public Institutions
Public Schools
Kennedy v. Bremerton has immediate and significant implications for public schools. Administrators must now balance the rights of employees to religious expression with the need to avoid coercion or official endorsement. Schools may not discipline employees merely for engaging in private religious expression on school property, provided it is not coercive and does not disrupt official duties.
However, schools retain the authority—and responsibility—to prevent coercive religious practices or activities that could be reasonably perceived as school-sponsored religious exercises.
Public Employees
The decision extends beyond schools to all public employers. Public employees retain the right to engage in personal religious expression, even while on duty, so long as their actions are not coercive and do not interfere with their official responsibilities.
Employers must carefully evaluate restrictions on religious expression to ensure they do not infringe upon constitutional rights. Blanket bans or overly broad policies may now be vulnerable to legal challenge.
Broader Legal Landscape
The Court’s rejection of the Lemon test and embrace of a history-and-tradition approach will affect future Establishment Clause litigation. Courts will likely look to historical practices and original understandings to determine whether government actions violate the First Amendment.
This shift may lead to greater accommodation of religious expression in public life, but it also raises questions about the boundaries of such accommodation and the potential for increased litigation.
Criticisms and Support
Support for the Decision
Religious liberty advocates and many constitutional scholars have praised the decision as a reaffirmation of the First Amendment’s protection for religious expression. They argue that public employees should not be forced to choose between their jobs and their faith, and that the government should not discriminate against religious speech.
The ruling is seen as restoring balance to First Amendment jurisprudence by ensuring that religious individuals are not marginalized in public life.
Criticisms and Concerns
Critics, including civil liberties organizations and some educators, warn that the decision undermines the separation of church and state. They argue that students, particularly in public schools, are vulnerable to subtle forms of coercion and may feel pressured to participate in religious activities led by authority figures.
The dissent’s concerns highlight the ongoing debate over how best to protect both religious freedom and the rights of non-religious individuals in public institutions.
Practical Guidance for Attorneys and Public Officials
Policy Recommendations
- Review and Revise Policies: Public institutions should review existing policies on religious expression to ensure compliance with the Supreme Court’s guidance. Policies should distinguish between private religious expression and official, school-sponsored activities.
- Training for Employees: Provide training for employees and administrators on the boundaries of permissible religious expression and the importance of avoiding coercion.
- Case-by-Case Assessment: Evaluate incidents of religious expression on a case-by-case basis, considering the context, visibility, and potential for coercion.
Litigation Considerations
Attorneys representing public institutions should be prepared to defend policies that accommodate private religious expression while preventing coercion or official endorsement. Those representing individuals should emphasize the non-coercive, personal nature of their clients’ religious practices.
Given the Supreme Court’s shift in Establishment Clause analysis, future cases will likely focus on historical context and the absence of coercion rather than abstract tests.
Conclusion
Kennedy v. Bremerton School District is a watershed moment in First Amendment jurisprudence. By affirming the right of public employees to engage in personal religious expression, the Supreme Court has redefined the boundaries between the Free Exercise and Establishment Clauses. The decision’s emphasis on historical practices and the abandonment of the Lemon test will shape the legal landscape for years to come.
Attorneys, public officials, and educators must stay abreast of these developments and ensure that policies and practices align with the Court’s guidance. For in-depth legal research and resources, visit Counsel Stack.
For the official Supreme Court opinion, see Kennedy v. Bremerton School District, 597 U.S. 507 (2022). Additional resources are available on Oyez and Wikipedia.
Disclaimer: This guide provides a general overview of Kennedy v. Bremerton School District and is not a substitute for legal advice. The case involves complex legal issues, and the application of its principles may vary depending on specific facts and circumstances. For tailored advice, consult a qualified attorney.
