When it comes to striking a balance between the religious rights of government employees and the government’s duty to avoid Establishment Clause violations, “context matters.”

In Kennedy v. Bremerton School District, 991 F.3d 1004 (9th Cir. 2021), the Ninth Circuit held that the public prayer by Joseph Kennedy, a football coach employed by the Bremerton School District, at the fifty-yard line immediately after football games violated the Establishment Clause and was not protected speech. This result was driven in large part by the following circumstances:

• Kennedy spoke as a public employee rather than as a private citizen. Public employees who make statements pursuant to their official duties speak for the government rather than for themselves. Kennedy engaged in a public demonstration where he audibly prayed while kneeling in the middle of a football field, in the course of his duties as a football coach who was tasked with providing motivational speeches at the end of games, and in full view of his students and the public. Thus, Kennedy spoke as a public employee and his speech was not protected.

• The school district had a compelling interest to avoid Establishment Clause violations. The government may not convey a message that a religion is favored or preferred, and the courts are particularly vigilant about monitoring for Establishment Clause violations in public schools. Kennedy had a long history of on-field religious activity, engaged in media blitzes to generate publicity regarding his on-field prayers, was intent on sending a message to students and the public, and allowed students to join in his prayers. Given these circumstances, an objective observer would believe that Kennedy’s actions were endorsed by the school district, and the school district was justified in limiting his speech to avoid an Establishment Clause violation.

• The school district attempted to accommodate Kennedy’s religious beliefs. The school district, as Kennedy’s employer, attempted to engage in an interactive dialogue to accommodate his beliefs while avoiding Establishment Clause violations. It suggested praying in private locations or praying on the field after the stadium had emptied. Kennedy did not respond but indicated through the media that the only acceptable outcome would be for the school district to allow him to pray on the fifty-yard line immediately after games. The school district was not required to accommodate his request because it would constitute an Establishment Clause violation and, therefore, impose an undue hardship on the school district.

The U.S. Constitution enshrines and protects the right to free speech and religious liberty, but these rights are not boundless. The Establishment Clause compels government neutrality between religions, as well as between religion and non-religion, and may limit public employees’ rights when they are government actors. On the other hand, the Establishment Clause may not quash all of a government employee’s religious expression. The religious words and actions of public employees create scenarios that challenge government bodies to craft unique solutions by balancing the rights of the individual with the interests of the state.

Although federal, state, and local governments have additional requirements to consider, both public and private employers must tread carefully when encountering and accommodating their employees’ religious practices. Jackson Lewis attorneys are available to help guide employers through this process.