Summary
Highlights
Kennedy v. Bremerton reinforced the Free Exercise Clause by outlining how government actions can violate it, such as expressing hostility towards religion, discriminating against it, prohibiting religious conduct while allowing similar secular conduct, or providing individualized exemptions. Lower courts are applying this framework in various contexts, like a Native American student's right to wear an eagle feather at graduation.
The Kennedy decision notably overruled the Lemon test for the Establishment Clause, which had been criticized for creating 'chaos.' The new approach requires courts to interpret the Establishment Clause by looking at historical practices and understandings. This has led to rulings, such as one affirming that opening court sessions with prayer does not violate the Establishment Clause.
Kayla Tony, Associate Counsel at First Liberty Institute, discusses the article 'A Chord of Three Strands: How Kennedy versus Bremerton School District changed free exercise establishment and Free Speech Clause Doctrine.' The Supreme Court's June 2022 decision protected Coach Joseph Kennedy's right to pray, with the opinion being cited over 80 times by lower courts.
Under the Free Speech Clause, the Court determined that Coach Kennedy's prayer was private, not government speech, and thus protected by the First Amendment. This decision clarifies that religious expression is not 'second-class speech,' protecting actions like a Muslim teacher wearing a headscarf or a Christian aide praying over lunch. A lower court, for example, extended this to a university coach displaying a religious poster.
The Kennedy v. Bremerton decision has proven to be highly influential in a short period, significantly impacting First Amendment doctrine across free exercise, establishment, and free speech clauses, with its effects expected to extend beyond the immediate context of the case.