It is debatable whether a claim by a public school football coach that he is compelled by religious belief to pray at the 50-yard line following each game is a good vehicle for addressing either free exercise or workplace religious accommodation. However, it does appear Justice Alito and at least three other justices have concerns about the effect of Hardison and Smith on the ability to even raise Title VII religious accommodation and Free Exercise Clause claims. With Patterson v. Walgreen Co., the Supreme Court has the opportunity to revisit religious accommodation claims under Title VII.
By Michael D. Peabody –
After every football game, public high school coach Joseph Kennedy would walk to the 50-yard line, kneel, and “offer a silent or quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” At first, he prayed alone, but after several games, some team members asked to join him. Kennedy said, “This is a free country. You can do what you want.” (See Kennedy v. Bremerton School District, Petition for Certiorari.)
Soon the prayers grew to include most of the team. Then Kennedy would give post-game speeches which his attorneys characterized as nonsectarian and non-proselytizing. When the school district in Bremerton, Washington found out about the prayers, which the district acknowledged were voluntary, it concluded that Kennedy’s activity violated the district policy which stated that “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.” The district wrote to Kennedy asking him to stop offering group prayers in violation of the policy, which he did.
After he stopped offering the group prayers, according to his attorneys’ Petition for Certiorari, Kennedy felt “dirty” for “having broken his commitment to God.” On October 14, 2015 he wrote to the District and said that he felt compelled by religious duty to pray following each football game and requested religious accommodation under Title VII of the Civil Rights Act of 1964 that would “affirm his right to engage in a brief, quiet, solitary prayer at midfield at the conclusion” of games.
Then, at the next game, on October 16, 2015, he waited until students were “physically separate” from him and walked to the midfield and prayed – and coaches and players from the opposing team and members of the public joined him. On October 23, 2015, the District denied his request for “religious accommodation” and said the Establishment Clause prohibited it as “overtly religious conduct.” On October 26, when he prayed again, the District placed him on administrative leave and prohibited him from engaging in the football program.
Theories of the Case: Free Speech, Free Exercise, Title VII Accommodation
Kennedy filed suit under the Free Speech and Free Exercises as well as Title VII of the Civil Rights Act of 1964. The School District responded that it did not doubt the sincerity of his beliefs, but that when he was working as a teacher or a coach, he was not entitled to First Amendment Protections. The District said, “We are buying every bit of your behavior while you’re around the students because they are always watching you,” and that his actions violated the Establishment Clause because it would make it appear that they were endorsing his religious beliefs.
Kennedy lost his case at every level, from the trial court through the Ninth Circuit.
Kennedy v. Bremerton was Appealed Only on a Free Speech Theory
He appealed the case to the United States Supreme Court, relying on a Free Speech theory. The Court declined to hear the case on January 22, 2019. Justice Alito, joined by Justice Thomas, Justice Gorsuch, and Justice Kavanaugh wrote a response concurring with the denial of certiorari. Justice Alito stated that there were “unresolved questions” that would make it difficult for the Supreme Court to review the free speech issues raised in Kennedy’s Petition for Certiorari. Specifically, the Court said there were two competing reasons why the District disciplined Kennedy and it wasn’t clear which one dominated; either he was suspended for “neglecting” his job duties to supervise the players while he was engaging in the prayer, OR his activities amounted to endorsing a religion. Both rationales were given throughout the proceedings and neither was emphasized over the other so it wasn’t clear if it had to do with whether he was actually doing his job or because of his religious activity. This should have been clarified at the trial level because the Supreme Court isn’t the place to try to sort out the basic facts of the case.
Alito did express some concern about the lower courts’ broad interpretation of the Garcetti v. Ceballos, 547 U.S. 410 (2006) case which permits a public employer to regulate employee speech that is part of an employee’s job duties so long as the public employer is not “creating excessively broad job descriptions.” Alito was concerned that a school district might inappropriately expand restrictions to any manifestation of religious faith, including when the employee was off duty. But again, the neglect of a job duty would be different from discipline for following a religious practice.
Supreme Court Justices Decline to Hear on Free Speech but Hint that Free Exercise of Religion or Title VII Religious Accommodation Would Be Stronger Arguments
Although the Free Speech argument did not take this case very far, the Alito response did note that it would have been difficult for Kennedy to pursue the Free Exercise and Title VII claims at the Supreme Court because Supreme Court precedent makes it difficult to assert these claims.
Concerning Free Speech, Alito wrote, “In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause.”
With respect to Title VII religious accommodation claims, Alito wrote, “[I]n Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden.”
Alito concluded, “In this case, we have not been asked to revisit those decisions.”
Patterson v. Walgreen Co. Directly Addresses Title VII Religious Accommodation and Hardison
It is debatable whether a claim by a public school football coach that he is compelled by religious belief to pray at the 50-yard line following each game is the best vehicle for addressing either Smith or Hardison. However, it does appear that the justices who signed onto Alito’s response have concerns about the chilling effect of Hardison and Smith on the ability to even raise Title VII religious accommodation and Free Exercise Clause claims.
The Supreme Court will soon be deciding whether or not to hear Patterson v. Walgreen which addresses Hardison squarely. Founders’ First Freedom has filed an amicus brief in support of the case which presents the Court with the opportunity to uphold a reasonable Title VII religious accommodation standard.
Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled.