Written by Don Byrd

The U.S. Supreme Court today declined to take up the case of Kennedy v. Bremerton School District. The dispute surrounds a high school football coach’s desire to pray on the field with his team, a practice ruled unconstitutional by the 9th U.S. Circuit Court of Appeals in 2017. The Supreme Court’s decision leaves in place that appeals court decision.

Notably, the case was decided not as a religious liberty case but as a free speech dispute. The appeals court found that coach Joseph Kennedy’s First Amendment right to Free Speech was not violated when the school district ordered him to cease praying after games on the field with his players, and subsequently placed him on leave when he refused.

Why was it not adjudicated as a case involving the free exercise of religion? That is a question some Supreme Court members took pains to address in an opinion concurring with the decision not to hear the case. Here is an excerpt from the concurrence, authored by Justice Alito, and joined by Justices Gorsuch, Kavanaugh, and Thomas.

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964…. Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

Specifically, Alito noted, in Employment Division v. Smith, the court “drastically cut back on the protection provided by the Free Exercise Clause.” Smith is a 1990 case in which the court held that a generally applicable, neutral law that happens to impose a burden on religious exercise is not subject to the high-threshold compelling interest test*. Alito’s statement is being interpreted by some experts as an invitation to argue that Smith should be overturned to increase the protections afforded religious exercise.

*As a response to the Smith decision, Congress passed the Religious Freedom Restoration Act (RFRA), which restored the compelling interest test for the scrutiny of federal action that substantially burdens a person’s religious exercise.