6/29/22: The Supreme Court Runs Interference on Public Prayer Restrictions

June 29, 2022

On Monday, the United States Supreme Court weighed in on the role of prayer in public sector workplaces when it found in favor of a former football coach from Bremerton School District in Washington who defied his employer’s attempts to uphold religious neutrality and restrict when he may engage in expressive public prayer.

Background

Joseph Kennedy was a part-time high school football coach who, for years, incorporated prayer into his pre- and post-game pep talks with the team. He also publicly prayed at the conclusion of every game he coached by going to the 50-yard line, kneeling, and bowing his head, often while players were celebrating their victories. Initially, the coach prayed on his own, but over time, most of the team joined him.

In response, the school district advised the coach that his conduct may violate the constitutional principles that call for a separation of church and state. The school district also provided him with accommodations to pray privately or once the stadium emptied but insisted that he not engage in outward religious prayer while he was on the job.

The coach temporarily complied with some restrictions and then, in a turnabout, announced his defiance of other restrictions through the media. During one of the post-game prayer rituals, disorder ensued when members of the public sought to join the coach on the field and a stampede elicited student and parent complaints.

Ultimately, the school district believed that, if it allowed the coach to continue his public prayer, the district would be in violation of the First Amendment’s Establishment Clause because students and other attendees might perceive the district as endorsing religion. Since the coach declined to comply with the district’s request to limit his prayers to after games in a private location not observable to students, the district suspended him, gave him a poor performance evaluation, and advised against rehiring him due to his failure to follow district policy regarding religious expression and failure to supervise student athletes after games. The coach subsequently sued the district, alleging it violated both the Free Exercise and Free Speech Clauses of the First Amendment.

Compliance Insights

The Supreme Court’s opinion provides little insight into its decision-making process and is notable to the extent that the Court concluded the coach prevailed without the need of a jury trial.

What is clear is that the Court disagreed with the district disciplining the coach for engaging in prayer and wanted to send a strong signal to all employers about the importance of providing accommodations for sincerely held religious beliefs.

In finding for the coach, the Court found that the district’s policies were not neutral or generally applicable and therefore burdened the coach’s sincere religious practices. The Court also characterized the coach’s prayer as private and personal, and concluded that there was no evidence that the coach was coercing others into following his religious practices. The Court did not address the fact that at least one parent expressed their child felt forced to participate to curry favor with the coach and get playtime on the field. If there was stronger evidence of coercion, this case may have turned out differently.

Public employers can still regulate workplace speech but should be cautious in light of the Court’s willingness to downplay employer rights in favor of religious expression. Ultimately, the Court concluded that the coach’s conduct was protected First Amendment speech and not government speech that could be regulated because (a) he was momentarily on a break and not on the job when he prayed; and (b) his prayer, which the Court concluded was private and personal, was also protected speech on matters of public concern. These findings indicate public employers should carefully review matters of religious expression in the workplace and draft robust, neutral policies on religion in the workplace.

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For questions about responding to requests for accommodations based on religion, contact the Barran Liebman team at 503-228-0500.