A few days ago, the Supreme Court handed down its decision in Carson v Makin, 596 US ___ (2022), holding a State program that funded secular but not parochial schools unconstitutional. In Kennedy v Bremerton School District, 597 US ___ (2022), issued on June 27, the Supreme Court held that a school district that fired a football coach because he insisted on praying at the 50-yard line after each game violated his rights under the Free Exercise and Free Speech Clauses of the First Amendment.
The Court noted its Free Exercise precedents permitted a plaintiff to prove a violation in multiple ways, including by showing the government had burdened a sincere religious practice pursuant to a policy that was not “neutral” toward religion or not “generally applicable” irrespective of religion. There was no question, in the Court’s view, the school district had prohibited the coach’s prayers precisely because they involved a religion and the school district was concerned about an Establishment Clause violation. Thus, the coach easily prevailed on his Free Exercise claim.
The Court’s Free Speech analysis presented difficulties. Here, the Court relied on an analysis developed in two earlier cases called Pickering and Garcetti. Under these cases, the first step is to determine whether the employee was speaking as an employee of the government or as a citizen on a matter of public concern. If so, then the second steps calls for determining whether the government’s interest in addressing the employee’s speech, in its role as employer, outweighed the speaker’s interests as a citizen. Here, looking at the first step, the Court concluded the coach’s prayers were private and not part of his job, even though he had certain post-game responsibilities. Turning to the second step, the Court concluded the school district’s concern about violating the Establishment Clause did not justify prohibiting the coach’s prayers and might be interpreted as hostility toward religious expression. The Court also dismissed, as irrelevant to its analysis, the school district’s concerns that: a reasonable observer might conclude the school district endorsed the prayers or the players might feel subtly coerced into participating to stay in the good graces of the coach or other team members.
The Court clearly rejected the Lemon standard for evaluating Establishment Clause disputes, as if it had not already been clear on that point. Instead, the Court articulated its future intention to analyze First Amendment cases based on history and custom. This may prove interesting, though uncertain. As those familiar with our constitutional history are aware, a great deal has changed since the founding. So, if the Court is going to draw its analysis from history and custom, the question becomes which history and which custom. The history and custom at the time of the founding? Or the history and custom that developed during the second half of the twentieth century. Until the answer to this question is clear, states and local governments will be required to tread carefully.