This new article [UPDATE: link fixed] is here. The Introduction:
Over the past decade, the Roberts Court has sought to disrupt two major domains of the First Amendment: the Religion Clauses and free speech. These interests have recently merged to yield a flurry of cases raising complex questions at the intersection of free speech and religious liberty. This Article argues that the Court's emerging approach to such cases threatens to unravel longstanding free-speech doctrine and the core values underlying it.
These dangers are on full display in the Court's analysis of a recent case addressing the constitutional quandary posed by the religious speech of public employees. Kennedy v. Bremerton School District involved Joseph Kennedy, a high-school football coach and devout Christian who, after each game, knelt in prayer at midfield, joined by players, adult community members, and the media. After repeatedly requesting that Kennedy refrain from this so-called "demonstrative prayer," Bremerton School District placed Kennedy on administrative leave due to its concerns about the consequences of his behavior, including the difficulty of ensuring security at the games and the risk that the District would be violating the Establishment Clause by allowing Kennedy to continue. Kennedy refused to reapply for his coaching job and alleged that the District had violated his free-speech and free-exercise rights.
The Supreme Court has long recognized that public employees like Kennedy enjoy some degree of free-speech protection. In recognizing this qualified protection, the Court seeks to strike a careful balance. On one hand, employee-speech doctrine vindicates public employees' free-speech rights. On the other, it aspires to vest in school districts, government agencies, and other public institutions the leeway to manage themselves—and their workforces—effectively. To negotiate this fundamental tension, for public-employee speech, the Court has eschewed the stringent review typical of other areas of free-speech doctrine in favor of a more flexible balancing test: When a public employee speaks as a citizen on a matter of public concern, the Court balances the "interests of the [employee] … in commenting upon matters of public concern" against "the interests of the State … in promoting the efficiency of the public services it performs through its employees." However, when an employee speaks as part of her public employment, the employee is owed no free-speech protections at all because it is, in effect, the government—not the employee—speaking.
Kennedy appreciated little of this fragile détente. Taking up both Kennedy's free-speech and free-exercise claims, the Court granted certiorari on the questions of "whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection" and "whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it." Justice Gorsuch authored an opinion for a six-Justice majority holding that the District's actions violated Kennedy's free-speech and free-exercise rights, and that the District's Establishment Clause interest failed to save its otherwise unconstitutional action.
