Few constitutional rights are held dearer by Americans than those contained in the First Amendment to the United States Constitution. The U.S. Supreme Court has held these protections equally dear, having declared that “the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Seems straightforward enough. But applying the First Amendment’s dictates to real-life situations has confounded our federal courts for decades.
The First Amendment protects religious freedom in two ways: first, by prohibiting state-sponsored religion (the “establishment clause”); and second, by assuring the freedom to practice the religion of one’s choice or none at all (the “free exercise clause”). In public settings, like school districts, the establishment clause forbids not just the official designation of a government-sponsored religion but a wide range of activities that effectively endorse one religion or another, or religion over non-religion. The free exercise clause requires school districts and other government employers to reasonably accommodate employees’ religious practices.
One clear challenge in determining what constitutes government “endorsement” of religion is that religion has played such a prominent role in our history, art, music and culture. Courts have struggled to distinguish religious-themed activities and symbols that cross the line from those with enough secular significance to pass constitutional muster.
Consider, for example, that our New Jersey State Constitution expresses gratitude “to Almighty God,” and “look[s] to Him for a blessing upon our endeavors[.]” Our state statutes require the recitation of the Pledge of Allegiance in New Jersey’s public schools, including the words “under God.” Indeed, even U.S. Supreme Court arguments open with the solemn plea, “God save the United States and this Honorable Court.” On the face of it, these might seem like overt endorsements of religion, but they merely reflect religion’s historical role in the founding of our government institutions.
For many years, the federal courts applied the so-called “Lemon test” to determine whether government-sponsored symbols or practices constituted an “establishment of religion,” based on the Supreme Court’s 1971 decision in Lemon v. Kurtzman. That test, in its original form, looked at whether there was a secular purpose, whether the activity promoted or inhibited religion, and whether there was excessive entanglement between church and state. As the Lemon test came to be refined over the years, the courts also considered whether reasonable observers in the public might think the government agency was endorsing a particular religion, or religion in general.
The Lemon test, particularly the “reasonable observer” standard, has come under fire by some scholars and individual members of the Supreme Court over the years but had never been explicitly overruled. Until now. The changing composition of the court over the past few decades has had no greater impact than in cases involving religious freedom, and a decision at the end of the court’s term this past spring has rewritten the ground rules for religious expression by public school employees.
Joseph Kennedy was terminated as a football coach at Bremerton High School in Washington for refusing to obey a directive to stop kneeling at midfield, after games, to say a brief prayer. It is unclear whether he was still officially “on duty.” The games were over. Players had either left the field or were off singing the school fight song. Coach Kennedy and his staff were still on site but free to attend to personal matters like checking their phones or greeting family and friends. Although the coach did not invite others to participate in his post-game ritual, it was not unusual for players, and even members of the other team and their coaches, to join in.
The district felt it was in a no-win situation. On one hand, it owed its employees a duty to reasonably accommodate their religious beliefs. On the other hand, its administration feared that the public spectacle of groups of students and coaches participating in a prayer session at least initiated by Mr. Kennedy, even if not formally led by him, would be perceived as a district endorsement of religion. It was decided that the most prudent course of action was to direct Coach Kennedy to stop his practice of praying on the field. When it became clear that the coach would not heed the direction to stop, he was removed.
The coach sued the district in federal court, arguing that his termination violated his rights under both the free exercise and free speech clauses of the First Amendment. After all, he argued, he was merely engaging in a brief moment of private prayer. For a while, he incorporated short motivational speeches when others were present, and at times engaged in pregame or postgame prayers with his players in the locker room, but he had voluntarily ceased these activities. As the court noted, the sole reason cited by the district for removing him was praying alone on the field.
The federal trial court agreed with the district and dismissed Kennedy’s claim, as did the intermediate appeals court. But the coach’s arguments got a more sympathetic reaction when his case finally reached the Supreme Court, which has grown more welcoming of religion in public life in recent years. Justice Neil Gorsuch, writing for a six-member majority, rejected the “reasonable observer” standard that many federal courts had applied in the past.
Pointing to several earlier court decisions that have chipped away at the Lemon test, he wrote that, for all intents and purposes, “this Court long ago abandoned Lemon and its endorsement test offshoot.” In its place, the court ruled that the establishment clause must be interpreted by reference to “historical practices and understandings.” In other words, it is irrelevant what today’s “reasonable observer” might view as government endorsement if a particular practice would not have been perceived that way in the era of the Founding Fathers.
By that measure, the court held that Coach Kennedy was engaging in a private prayer that was none of the district’s business. He did not directly pressure anyone to participate, and there was no concrete evidence in the record that any player felt subtly coerced to do so. The fact that these events occurred in the presence of others did not concern the majority. Yes, Kennedy may have been still technically “on duty,” and his prayer ritual visible to others still on the grounds. But it was not part of his official job duties, and the court held that his right to exercise his First Amendment rights should not be compromised because of others’ subjective perceptions. After all, Justice Gorsuch wrote, if that were what mattered, districts could “fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice.”
So, what are the takeaways for New Jersey school districts? Clearly, the Kennedy v. Bremerton School District holding extends beyond the football field. Equally clearly, Kennedy must be applied consistent with the facts as the Supreme Court found them; that is, that the prayer at issue was not coercive, and took place alone during quiet personal time. Nothing in the court’s decision thus would permit staff to use the power of their official position to proselytize to a captive audience, or to pressure students to engage in religious activity. Nor did the court suggest that staff could lead students in prayer, even without coercion. But when employees have time to themselves during their workday, they may engage in personal prayer or other types of religious expression as long as they do not disrupt the orderly operations of the school or ignore their assigned job duties.
The greatest challenge for local districts will be to define the parameters of private time during the workday. Ask yourself how that definition may vary based on the staff member’s role and job responsibilities. It seems clear, for example, that a silent private prayer before a lunch in the faculty lounge would be permissible under the Kennedy holding. But how would you define private time during the remainder of a staff member’s day?
Should a teacher be permitted to start class with a private prayer, with students present in the classroom? Many would contend that this sort of religious expression would feel coercive to students, or at a minimum, leave them with the impression that their school endorsed their teacher’s particular faith. Indeed, three dissenting justices in Kennedy suggested that the coach’s players may have felt coerced into participating in his moment of prayer.
There was no evidence in this case that the coach affirmatively pressured them to pray with him, but doesn’t it stand to reason that some team members may have felt that they had no choice but to join in, both to please their coach and to feel a part of the team? The majority’s response was simply that there was no evidence of any coercion in this case, subtle or otherwise, leaving open the question what sort of evidence would suffice to show coercion in a future case.
It is also clear that districts cannot allow religious expression by adherents of one religion but not another. We do not know from the court’s decision in Kennedy what particular religion the coach was practicing there, but one can surmise he was not of the Muslim, Hindu or Jewish faiths. In our current polarized climate, districts will need to be protective of all staff’s right to engage in the activities protected by the court’s decision, even if their religious practices are unwelcome to some in the community.
And so, in addition to all their other societal responsibilities, our local school districts must stand guard at that high and impregnable wall that divides church and state. Kennedy adds to the confusing body of case law that attempts to guide schools in their good faith efforts to do so. But one thing is plain from Kennedy’s holding; that wall is not so high that it precludes religious expression in a school setting under the right set of facts.
David B. Rubin, of counsel to the Busch Law Group, has devoted his practice to education law, commercial disputes, professional responsibility matters and appellate litigation. He has argued numerous precedent–setting cases at all levels of the state and federal court system, generating over 50 published judicial opinions. He has achieved national prominence in the field of education law.
Ellen Bass, of counsel to the Busch Law Group, is a retired chief judge and acting director of the New Jersey Office of Administrative Law. Prior to her appointment to the bench, Judge Bass served as assistant counsel to the New Jersey Association of School Administrators and worked in private practice as counsel to numerous local public-school districts.
