First Amendment Fumble: Public Employers Must Balance Constitutional Obligations
The Supreme Court issued a number of newsworthy decisions last week sparking interest and debate nationwide. Particularly noteworthy for employers is its decision in Kennedy v. Bremerton School District, No. 21-418 (S. Ct. June 27, 2022). In that case, the Court found that a school district’s suspension and ultimate nonrenewal of a football coach’s contract related to his visible offering of prayer after football games infringed on the coach’s rights under the First Amendment to the United States Constitution.
In general, the Establishment Clause contained in the First Amendment prohibits schools and other public entities from sponsoring or endorsing religion. In some cases, a public employee’s religious speech or activity could be seen as such sponsorship or endorsement if that employee is carrying out the activity in an official capacity. In those situations, a public entity may restrict the speech or activity to avoid sponsoring or endorsing religion. But, it cannot restrict a public employee’s ability to associate and practice religion freely in their personal lives.
Before Bremerton, the Supreme Court leaned heavily on this endorsement analysis and analyzed whether an activity would pressure students into participating in a religious activity. In Santa Fe Indep. School Dist. v. Doe, the Supreme Court found that a school violated the Establishment Clause when it allowed a student to deliver a religious message over the school's public address system at the beginning of a football game while under the supervision of school faculty. 530 U.S. 290 (2000). Taking these facts into consideration, the Court found that an objective person would likely view the message as being sponsored and endorsed by the school. The Court explained that while attendance at a football game is largely voluntary, some students must attend (band, cheerleaders, football players) and others are likely to feel socially pressured into attending. Because the prayer was spoken over the speakers, there was a high risk that some students would feel coerced into participating in a religious exercise.
But unlike the approach in Santa Fe, the Court in Bremerton explained that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings’” and that “[n]o historically sound understanding of the Establishment Clause begins to ‘mak[e] it necessary for government to be hostile to religion’ in this way.” The Court recognized that the coach was on duty during the game, attended to official duties afterwards, and served as a role model for the players and students watching the game. However, according to the Court, the coach was not acting in his official capacity when he offered a “quiet personal prayer” and did not coerce students or others to join him. The Court specifically noted that this case was different than Santa Fe, because the prayers “were not publicly broadcast or recited to a captive audience.”
Schools and public employers must keep this decision in mind when confronted with an employee’s engagement in religious activities on public grounds, and balance its interests in not violating the Establishment Clause with not violating a public employee’s freedom of speech and religion. Private employers should also keep this decision in mind due to the interest it has sparked nationally, as it may fuel an influx of religious accommodation requests from employees.
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