Joseph Kennedy coached football at Bremerton High School, a public school in Washington State. After football games, Kennedy led prayers at the 50-yard line among players, coaches, fans, and, sometimes, politicians. The Bremerton School District, believing that Kennedy’s prayers might be coercing students, suspended Kennedy after he continued conducting post-game prayers. Kennedy sued, alleging that his suspension violated his First Amendment rights under the Free Speech and Free Exercise Clauses. The School District argued that Kennedy’s prayers would be a prohibited government “endorsement” of religion under the Supreme Court’s decision in Lemon v. Kurtzman, 403 U. S. 602 (1971).

The Ninth Circuit found in favor of the School District, determining that a reasonable observer would consider Kennedy’s prayers to be government action endorsing religion. The Supreme Court, however, disagreed and found that the Ninth Circuit’s “endorsement” analysis was incorrect. Instead, the Court instructed that questions about a government employee’s First Amendment rights “must be interpreted by reference to historical practices and understandings, ” not the Lemon (i.e., “endorsement”) test. Indeed, the Court expressly held that it has “abandoned Lemon and its endorsement test.”

The Supreme Court’s 6-3 decision in favor of Kennedy alters the analysis of First Amendment rights of government employees. Instead of determining whether a reasonable person will view an employee’s actions as a government endorsement of religion, courts must now ask whether the action is historically considered an establishment of religion. This approach seemingly results in more protections offered to a government employee’s religious activities, even if conducted on government grounds.

The decision, found here, applies only to public employers. Under Title VII (and state law equivalents), private employers are prohibited from taking adverse action against an employee because of his/her religion. Title VII also provides employees a right to request a reasonable accommodation for religious reasons. An accommodation must be given unless it would create an undue hardship (which is considered more than a minimal burden on operation of the business).  

All employers – public and private – should consider their policies and the applicable legal standard when faced with an employee’s exercise of religion in the workplace and consult counsel as needed.