Joseph Kennedy was fired from his job as a football coach in Bremerton School District for kneeling in silent prayer at the fifty-yard line after his team’s high school football games.

He sued in federal court, alleging his First Amendment rights to freedom of speech and free exercise of religion were violated. He moved for a preliminary injunction requiring the District to reinstate him.

The District defended its action on the grounds that Coach Kennedy was causing them separation of church and state migraines.

The District court denied Kennedy’s motion for injunction and the Ninth Circuit Court affirmed. The parties engaged in some discovery and then filed cross motions for summary judgment.

The District court granted the District’s motion and the Ninth Circuit affirmed. The Ninth Circuit denied a motion to rehear the case en banc over the dissenting votes of 11 judges. Several dissenters argued that the Court had applied a flawed understanding of the First Amendment’s Establishment Clause as reflected in the case of Lemon v. Kurtzman, which the Supreme Court had largely abandoned as an ahistorical, a-textual approach to Establishment Clause jurisprudence.

Coach Kennedy appealed to the U.S. Supreme Court.

The Supreme Court held that the District had violated Coach Kennedy’s constitutional rights under the First Amendment’s Freedom of Speech Clause and Free Exercise Clause. This was so because those Clauses protect an individual engaging in personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to regulate such religious expression.

Where the Free Exercise Clause protects religious exercises, the Free Speech Clause provides overlapping protection for expressive religious activities.

Once an individual has established that her First Amendment rights have been violated, the focus shifts to the defendant to show that its actions were nonetheless justified and appropriately tailored.

The Court held that Coach Kennedy carried his burden of persuasion to demonstrate an infringement of his constitutional rights. Just as there are many paths to the top of Mt. Fuji, so there are multiple ways one can establish a free exercise violation, including by showing that a government entity has burdened her sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.”

If the government fails either the “neutrality” or “general applicability” test, then “strict scrutiny” is triggered. Under strict scrutiny, a government entity must show that its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

No one questioned the sincerity of Coach Kennedy’s personal religious conduct. The District did not discipline Kennedy for leading his team in prayers. They terminated him for persisting in quietly praying at midfield without his students after three games in October 2015.

The Court found that in terminating Kennedy, the District’s policies were neither “neutral” nor “generally applicable.” The District conceded that it had sought to restrict Kennedy’s activities at least in part because of their religious character. The District seemed to believe it could not allow Coach K to engage in religious conduct even though it allowed other employees to engage in on duty personal secular conduct. This, its policies were not applied even-handedly.

The Court also held that Kennedy had carried his burden of proving a Free Speech violation. The Court noted that teachers and students do not shed their constitutional rights at the schoolhouse gate. Nevertheless, teachers and coaches are government employees paid in part to speak on the government’s behalf and convey its intended messages.

The Court has developed a two-part test to account for the complexity involved in the interplay between free speech rights and government employment.

The first step involves a threshold inquiry into the nature of the speech at issue. When an employee “speaks as a citizen addressing a matter of public concern”, the First Amendment may be implicated, and the Courts should proceed to the second step of the analysis.

At the second step of the so-called Pickering-Garcetti inquiry (named after the two cases that spawned the test) the court should engage in a “delicate balancing of the competing interests surrounding the speech and their consequences.”

In Coach Kennedy’s case, at the center of the Pickering-Garcetti analysis lay one central question: were Kennedy’s prayers offered in his capacity as a private citizen or did they amount to government speech attributable to the District?

After reviewing all the circumstances surrounding the prayers, the Court concluded that they were not government speech. Coach Kennedy used time after the games in which school officials were allowed a few moments to attend to personal affairs. He was not instructing players, discussing strategy, encouraging better on field performance, or otherwise engaging in the kind of speech the District paid him to produce as a coach. He did not offer the prayers within the scope of his duties as a coach.

The Court reasoned that to hold otherwise was to posit “an excessively broad job description” by treating everything teaches and coaches say in the workplace as government speech subject to government control.

But wait, there is more. Don’t touch that dial or press that “go back” arrow. You may be tempted to think that law is an easy peasy lemon squeezy enterprise. But, if so, you forgot the second step of the Pickering-Gorcetti analysis, you forgetful soul you. And you will fail to cherish and savor to the utmost degree the very ambiguities and subtle distinctions and multi-pronged analyses that are a lawyer’s stock in trade. So do not lay down your law books just yet, buckaroo. You must, I repeat must, read this blog to its excruciating or possibly exciting conclusion no matter how much that task may tax your patience. Oh, who am I kidding — it’s a free country. Go back to your web-surfing if you like. But be forewarned that to do so will inevitably result in a terrible case of blog-skimmer’s remorse.

Besides, there actually may be a genuine lemon squeeze later on in this blog if you have the perseverance to keep bushwhacking your way through the dense vegetation of this tropical legal rainforest to get to it. So c’mon, little campers, let’s finish exploring!

The remaining step to consider is where that in which the government may seek to prove that its interests as a government entity outweigh even an employee’s private speech on a matter of public concern.

The Court concluded that whether one looks at the case at this point the ought the lens of the free exercise of religion or the free speech clause of the First Amendment, the result is the same.

Under the Free Exercise Clause, the government normally at this point must satisfy strict scrutiny, showing that its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end. A similar test generally prevails under the Free Speech clause.

The District urged the Court to apply intermediate level scrutiny, or the more lenient second prong of the Pickering-Gorcetti test. Intermediate scrutiny in where the government must show its action is substantially related to an important government objective.

But the Court held that the District could not justify its actions under any standard.

The District, like the Ninth Circuit, insisted that Coach Kennedy’s free exercise and free speech rights must yield to the District’s interests in avoiding an Establishment Clause violation under the Lemon case and its progeny.

Lemon created an Establishment Clause test that looked at a law’s purposes, effects, and possibilities for entanglement with religion. As the Lemon test evolved, it came to embrace a consideration of whether a reasonable observer would view a government action as an endorsement of religion.

The Court stated that, despite Lemon’s ambitious goal of creating a grand unified string theory of Establishment Clause jurisprudence, it simply had too many shortcomings. These included an all too abstract and ahistorical approach to religion clause jurisprudence. As a result, the Court made clear that it had long ago abandoned Lemon and its offshoots as a means of deciding Establishment Clauses cases.

So, there you have it. Lemon has been squeezed dry. It enjoyed its day in the sun. It was sometimes mixed with sugar and served as lemonade on a hot summer’s day to cool the heat arising from zealously mixed concoctions of church and state. At times it was simply placed as an unadorned wedge in a tall glass of ice water to add flavor to an otherwise bland judicial milieu. Its seeds fell into the surrounding soils and sprang up as offshoots of their mother lemon. These were gradually grafted together into a grand lemon tree that sought the ability to quench the thirst of all weary travelers vexed by the often heat-generating controversies of church and state.

But perhaps the Lemon tree had simply grown too big with the capacity to shoot forth too many branches and twigs. Maybe it’s endorsement branch, not part of the original pristine lemon, grew too proud of its gaudy appearance and began sucking more than its fair share of marrow from its life-giving roots. Maybe its fruit, though gorgeous in appearance, began to lose its nutritional value.

Maybe it had begun to offer up such a varied and unpredictable array of rich dishes, whether it be lemon pies, lemon bars, lemon sorbet, lemon cupcakes, lemon custard, pastries with lemon filling and the like, that we became bewildered by our own creation and began seeking alternative culinary concoctions, returning to the fruit of the lemon tree only when we were in the mood for an exotic dessert. Perhaps predictability is the comfort food of the law, providing us a core nutritional value that the ever-expanding gourmet menu of Lemon could never offer.

Maybe it had long-since withered away, escaping our notice until we just now observed its decrepit appearance, which had come about so gradually that we could not see it clearly until it was too late. The tree had not been properly pruned or fertilized with new life-giving ideas or adaptations for so long that it had simply shuffled off its mortal coil without so much as a whimper to warn us.

It was like a fashionable boutique shop that thrived wonderfully for a season, but one that was located in an out of the way Cul de sac, far from the main arteries and thoroughfares that make up the life blood of the law. Without proper and consistent care, that Cul de sac decayed and became overgrown with a heterogeneous urban jungle of dandelions, morning glory, ever expanding ivy with its grasping tendrils, and gnarled unsightly old trees and underbrush. When we went to dine out there occasionally, we were repulsed by its weather-beaten appearance and tended to shun it in favor of more vibrant locales, even restaurants whose menus were not as avant-garde, but offered us the predictability and basic nutrition that we craved. Perhaps its constitution, unlike the Constitution from which it inexplicably sprang, was simply not built to last for generations to come.

Howsoever it came about, the Lemon tree now has been chopped down and its fruit discarded into a rotten fruit bin, where it has been carried away and jettisoned from the tailgate of a dump truck into a gigantic compost pile of once vibrant but now defunct organic judicial waste where it has biodegraded into the constituent parts of a latent soil fertilizer. Regardless of whether or not it rises again in its springtime splendor, its molecules may still serve to cool the passions of extremes on either side of a delicate and difficult issue.

Wow. I surprised even myself with that elaborate eulogy. RIP, Lemon.

Okay, full disclosure. I wrote a paper on the Lemon case in law school nearly three decades ago. I remember being somewhat frustrated with the inconsistent and sometimes absurd results that it seemed to produce. But when I challenged myself to replace it with something better, I failed miserably. The best I could come up with was a kind of modified Lemon test that would have allowed government to endorse religion in general in an appropriate setting in which there was a historical precedent or analogy for the action and so long as there was a secular purpose in doing so and no particular sect or religion was favored over another, and so long as no degree of compulsion was exercised over an individual’s conscience.

I cannot remember if my test would have allowed prayers at high school football games, but I think it might have as long as there was a tradition for it, such as in the Deep South, and so long as different sects and religions, including atheism, were allowed to participate on a rotating basis.

It is a difficult and sensitive issue to say the least. It is hard not to offend anyone at all times. Even extreme inoffensiveness is deemed offensive to some. For example, eradicating a long-standing tradition in certain areas may be seen as actively hostile to religion. So, in my mind, looking back to some of the historical practices and traditions prevailing at the time of the adoption of the First Amendment, and in particular to some of the actions of the Founders themselves, can help shed light on what kinds of government actions do not run afoul of the Establishment Clause.

But back to the case at hand.

The Court noted that it had long ago replaced Lemon and its endorsement test with an interpretive approach that looks to historical practices and understanding. The Court now eschews an approach which sees the two religion clauses of the First Amendment as constantly warring with each other, with one always sure to prevail over the other. An analysis focused on original meaning and history, the Court explains, is now the rule rather than the exception.

The Court continued to analyze the District’s defense. The District next justified its action by claiming that failure to terminate Kennedy would have been to coerce the students to pray. The Court noted that the record itself was bereft of any evidence of coercion. But the District argued that any visible religious conduct by a teacher or coach should be deemed impermissibly coercive as a matter of law.

The Court rejected this argument. To require government role models to eschew any visible religious expression would undermine a long constitutional tradition in which learning how to tolerate diverse expressive activities is “part of learning how to live in a pluralistic society.”

The Court found that there was no conflict between the religion clauses in this case, but the mere shadow of a conflict. But a government entity’s concerns about a mere phantom constitutional conflict does not justify its actual violation of a person’s constitutional rights.

The Court opined that respect for religious expression is indispensable in a free and diverse republic. In this case the government sought to punish an individual for religious expressions while tolerating similar kinds of secular expressions. The Constitution neither permits nor mandates this type of discrimination. The Court awarded summary judgment to Joseph Kennedy.

The dissent felt that the Court had not adequately considered the coach’s entire course of conduct. The coach had previously led the team in locker room prayers. Moreover, on some occasions he had been joined at midfield at various times by opposing team members, players on his own team, and spectators.

He had given motivational speeches in connection with the prayers and had held up football helmets during the prayers. He had invited members of the media to witness the prayers when they had become controversial, and the school district had expressed concerns and given him guidelines on what to do.

In short, the dissent felt that Kennedy had placed the school district in a difficult bind by his very public behavior. According to the dissent, the majority had focused too narrowly on the three seemingly innocuous prayers in October 2015, without due consideration of the entire course of conduct leading up to them.

I sometimes find it interesting that some, but certainly not all, of these public prayer situations are a little reminiscent of the scriptural injunction to pray in secret and not in showy displays on street corners or other prominent public locations (e.g., perhaps at the 50-yard line of a football field shortly following a publicly attended football game?). See Matthew 6:5. Admittedly, that probably has little or nothing to do with the constitutional issue.

The dissent lamented the overturning of Lemon v. Kurtzman, finding ongoing value and relevance in that precedent.

See Kennedy v. Bremerton School District, 597 U.S. ___________ (2022).

What do you think?