Tuesday, June 28, 2022

SCOTUS on Establishment Clause, Free Speech, Free Exercise, and prayer on the 50-yard line

Yesterday, the Supreme Court issued its opinion in Kennedy v. Bremerton Sch. Dist. This case has a long and convoluted fact pattern, including a high school football coach leading locker room prayers and post-game religious talks. The school told him to knock that off, and he did. 

He would later pray on the 50 yard line, and the school suspended the coach for three specific incidents, which the Court described as "praying quietly without his players." He did so during a time when coaches were generally permitted to have private conversation, make phone calls, and other secular non-work-related activities. There appears to be some disagreement about the underlying facts. While that is surely important to the parties in this case, it is irrelevant to the precedent this case establishes.

Justice Gorsuch
Obviously, terminating a public employee for praying raises significant free speech and  free exercise concerns. The school raised its own concerns though that allowing the prayer would create Establishment Clause concerns - i.e., the coach's prayers could be viewed as school-sponsored or coercive prayer. 

Ultimately, the Court sided with the coach, and the free exercise/speech concerns. When public employees are on their free time, even if they are only on the field due to their employment, their religious prayers cannot be disfavored in comparison to their non-religious activities:

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But 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 as well 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 “[o]ffense . . . does not equate to coercion.”

(Internal citations omitted).  

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