One of the Christian right’s top policy priorities is to effectively create two different codes of law in the United States. The first code, which applies to people who do not hold conservative religious views, is rigid and unmoving. The second code, which would apply primarily to Christian-identified conservatives, contains broad exceptions for people who hold the right religious beliefs.
The endgame is a world where Christian conservatives can treat much of the law as optional — applicable only to people who are not like them. Think of the Supreme Court’s recent decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where an anti-gay business owner claimed that he could refuse to follow his state’s civil rights laws because his religion taught him not to serve same-sex couples at their weddings.
The four most conservative members of the Supreme Court signaled on Tuesday that they are itching to turn this agenda into law. Indeed, Justice Samuel Alito’s opinion in Kennedy v. Bremerton School District suggests that the Court’s right flank would give conservative Christians such broad immunity from the rules that govern all other Americans that it is unclear that the government would be allowed to manage its own workforce — at least when some members of that workforce identify with the Christian right.
Kennedy involves a former high school football coach who was fired because he would conclude football games by walking out to the 50-yard line and performatively praying in front of his players and the crowd. The school superintendent instructed him not to do so for two reasons — by walking out to the 50-year line, the coach abandoned his players at a time when he was supposed to be supervising them, and by praying “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees,” the coach falsely gave the impression that the school district endorsed a religious viewpoint.
Despite the superintendent’s instruction, Coach Joseph Kennedy continued to pray at the 50-yard line after games. The district eventually forbade Kennedy from participating in its football program. Kennedy responded by filing a lawsuit claiming that the district violated his free speech rights and his religious freedom.
As a matter of law, school districts are allowed to regulate what kind of speech their own employees engage in when those employees are on the job. A district may require teachers to teach the state curriculum, and not whatever topic the teacher feels like teaching that day. A school district may order its teachers not to belittle their students. It may order a coach not to use curse words in front of their players. If a high school math teacher decides to ignore math to teach their students about the Bible, the school may fire that teacher.
As the Supreme Court held in Garcetti v. Ceballos, “government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Thus, while government employees do retain many First Amendment protections, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Think of Coach Kennedy’s case this way. Suppose that, instead of walking out to the middle of the field to pray, Kennedy concluded each game by walking out to the 50-yard line and announcing to the crowd that his high school’s biggest rival is a better high school with a better football program. As a citizen, Kennedy is allowed to hold this view and the First Amendment protects his right to say it. But as an employee of the school district, his bosses may conclude that they do not want one of the district’s most visible representatives proclaiming a message that the district does not want to associate itself with — and to do so while Coach Kennedy is acting in his official capacity as a coach.
The content of Kennedy’s speech, in other words, is irrelevant. The question is whether a school district may control the messages its own spokespeople convey to the public on the school district’s behalf.
Should the Supreme Court buy Kennedy’s religious liberty arguments, moreover, that could have consequences that even Alito would find reprehensible. The Constitution does not permit the government to discriminate among religions. So if a Christian coach has the right to perform his religion while acting as a representative of the school district, a Devil-worshiping coach has the right to run out into the middle of the field and call out “HAIL SATAN!”
Nevertheless, Alito’s opinion in Kennedy — joined by Justice Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh — goes out of its way to minimize the impact of a high school football coach ostentatiously associating the school district with a religious viewpoint during a highly public event. Alito compares Coach Kennedy’s actions to a coach who briefly steps away from his duties to make “a reservation for dinner at a local restaurant.”
Alito concludes his opinion, moreover, by suggesting that two previous Supreme Court decisions — one of which is over 40-years-old — should be overruled to make it much easier for plaintiffs who have religious objections to the law to defy those laws and get away with it. The opinion is brief — less than six pages in total — but it leaves little doubt that at least four members of the Supreme Court believe that the ordinary rules laid down in Garcetti should not apply to the Christian right and that much of the law should be optional for people like Coach Kennedy.
It’s worth noting that Alito and his three colleagues ultimately conclude that the Court should not hear the Kennedy case. According to Alito, there is a factual dispute over whether Kennedy was really fired for his religious statement, or whether he was fired for leaving his players unsupervised. Alito ultimately concludes that this factual dispute muddles the case too much to warrant Supreme Court review.
Yet it is clear from Kennedy that, when a cleaner case that does not involve such a factual dispute arises, at least four members of the Court are eager to immunize Christian conservatives from much of the law. Moreover, while Chief Justice John Roberts did not join Alito’s opinion in Kennedy, he joined a 2016 Alito opinion calling for a similar expansion of the rights of religious objectors to defy the law.
And just in case there is any doubt, the Court’s majority has made it quite clear that their extreme solicitude for conservative Christians does not extend to other faiths. Though the Court did side with a Muslim inmate who wanted to grow a beard while he was still incarcerated, the Court more recently upheld the Trump administration’s efforts to ban many Muslims from entering the country.
It is very likely, in other words, that the Supreme Court is poised to create a world with two different codes of law — one set for people like Coach Kennedy and another set for everyone else. The Court’s majority is just waiting for the right opportunity to do so.