THE PRIMACY OF FREE EXERCISE IN PUBLIC-EMPLOYEE RELIGIOUS SPEECH.

• Author: Grandpre, Nicholas J.

INTRODUCTION

Last Term, the Court decided Kennedy v. Bremerton School Districts (1) The decision, in which the Court finally overruled Lemon v. Kurtzman, (2) elicited significant commentary. (3) Critics chastised the Court for playing fast and loose with the facts (4) and inviting the reintroduction of prayer in public schools--thus further eroding the separation of church and state. (5) While the Court's jettisoning of Lemon rightfully received the bulk of the attention, Kennedy is also notable for its treatment of the Free Exercise and Free Speech Clauses in tandem.

Writing for the Court, Justice Gorsuch made clear that Kennedy's conduct was "doubly protected by the Free Exercise and Free Speech Clauses." (6) The assertion was not novel: the Court had previously held that some religious expression is simultaneously protected by the Free Exercise Clause and other First Amendment protections--namely, speech or press." But under the Free Speech and Free Exercise Clauses, courts apply varying levels of scrutiny to government action infringing on those rights. For instance, under the Free Exercise Clause, the government must meet strict scrutiny if a plaintiff demonstrates that "a government entity has burdened his sincere religious practice pursuant to a policy that is not 'neutral' or 'generally applicable.'" (8) Government action that is both neutral and generally applicable does not violate one's free exercise rights even if the action imposes a substantial burden on one's ability to freely exercise his or her religion. (9) Under the Free Speech Clause, viewpoint-based restrictions are subject to strict scrutiny, (10) while content-neutral statutes are subject to the somewhat less demanding intermediate scrutiny. (11)

The above levels of scrutiny apply to private citizens' expression. Under the Free Speech Clause, public employees' expression is less protected. Public-employee expression is subject to the "Pickering-Garcetti framework." (12) Under Pickering-Gnrcetti, the government can fire or otherwise discipline an employee for his or her speech without running afoul of the First Amendment if the employee's speech is either (1) made pursuant to official job duties or (2) not regarding a matter of public concern. (13) In other words, such speech receives no First Amendment protection from adverse employment action. But public-employee speech (1) not pursuant to official job duties and (2) on a matter of public concern is subject to Pickering balancing. Under Pickering balancing, courts balance the individual's speech interests against the state's interests. If a court decides that the individual's speech interests outweigh the suite's interests, then the speech is protected.

Kennedy, a high school football coach employed by the Bremerton School District in Washington State, was a public employee. (14) The Court concluded that Kennedy's on-field prayers were (1) not pursuant to his official job duties and (2) on a matter of public concern. (15) Therefore, Kennedy's speech was not per se unprotected by the First Amendment. (16) Instead, his expression was subject to the Pickering balancing test. (17) But Kennedy's expression was also protected by the Free Exercise Clause, and the Court determined that the District's conduct was not neutral and generally applicable. (18) Government action deemed not neutral or generally applicable is generally subject to strict scrutiny. (19) Thus the question: when expression is protected by both the Free Speech and Free Exercise Clauses, what level of scrutiny do courts apply? Pickering balancing, the existing free exercise scrutiny regime, or something else entirely?

The Court did not answer the question. (20) Instead, the Court ruled for Kennedy because "[t]he District [could not] sustain its burden under any [potentially applicable level of scrutiny]." (21) In his concurrence, Justice Thomas highlighted the Court's sidestepping: "the Court also does not decide what burden a government employer must shoulder to justify restricting an employee's religious expression." (22) And as Justice Thomas noted, "the Court has never before applied Pickering balancing to a claim brought under the Free Exercise Clause." (23)

This Note addresses the question left open by the Court and highlighted by Justice Thomas: under what standard of review should courts review public-employee religious expression protected by both the Free Speech and Free Exercise Clauses? This Note begins by introducing the doctrine of government-employee speech. Then, this Note surveys proposals within existing scholarship that address how courts ought to treat public-employee religious expression. In doing so, this Note evaluates the following proposals: (1) applying Pickering balancing as is; (2) applying a modified version of Pickering balancing; (3) replacing Pickering balancing with intermediate scrutiny; (4) the Holmesian approach: deeming public-employee religious expression wholly unprotected; and (5) free exercise primacy: applying the existing free exercise scrutiny regime to public-employee religious expression.

This Note argues in favor of the last approach--free exercise primacy. Courts should apply the existing free exercise scrutiny regime to public-employee religious expression. Each alternative is seriously flawed. Pickering balancing should not be extended to free exercise claims for reasons both general to Pickering balancing and particular to religious exercise. As a general matter, Pickering balancing is overly malleable, as it asks judges to balance incommensurate goods against one another. Additionally, by essentially constitutionalizing the heckler's veto, the doctrine runs counter to fundamental First Amendment values. Furthermore, aspects of Pickering balancing are particularly illsuited for free exercise claims. Pickerings public-concern inquiry is built to capture audience-centric free speech justifications--not individual-centric religious liberty justifications. Modified versions of Pickering balancing and intermediate scrutiny fail to improve upon the doctrine's malleability. Deeming public-employee religious speech wholly unprotected--the Holmesian approach--unjustifiably singles out religious expression as particularly unworthy of protection. Applying the existing free exercise scrutiny regime is not a perfect solution, but it is better than any viable alternative.

1. THE DOCTRINE OF GOVERNMENT EMPLOYEE SPEECH

   Free speech claims of government employees are governed by the two-step "Pickering-Garcetti framework." (24) First, the Court conducts a threshold inquiry. To be eligible for First Amendment protection from adverse employment action, the speech must (1) not be made pursuant to a public employee's official duties and (2) be regarding a matter of public concern rather than purely personal matters. (25) If both threshold inquiries are cleared, then the speech is subject to a balancing test, in which the state's interests are balanced against the individual employee's speech interests.

   1. Official Duties

      Public-employee expression receives no First Amendment protection from adverse employment action if made pursuant to one's official job duties. The Court laid down this bright-line rule in Garcetti v. Ceballos. (26) There, the Court considered whether "an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech," (27) and concluded that the memorandum was unprotected. (28) The Garcetti Court relied on the distinction between speech "as a citizen" and speech "pursuant to... official duties." (29) When a public employee speaks "as a citizen," the employee's speech is subject to First Amendment protection. (30) But when a public employee speaks "pursuant to... official duties," his or her speech is not subject to First Amendment protection. (31) In other words, "those two categories of speech are mutually exclusive such that an employee's official-duties speech can never be characterized, for First Amendment purposes, as also expressing the employee's views as a citizen." (32) Garcetti drew a bright line between protectable and unprotected public-employee expression. (33)

      Garcetti raised the stakes for determining whether employee speech qualifies as on the job or private. If not pursuant to official duties, the speech is at least possibly protectable. If pursuant to official duties, the speech is not protected. As the Garcetti Court made clear, whether public-employee expression is on the job (and therefore wholly unprotected) or private (and therefore protectable) is a factintensive inquiry. Garcetti may have set forth a bright-line rule but determining when a public employee is acting pursuant to his or her official duties is not a purely formal inquiry. The speech's location is not dispositive, (34) and employers cannot "restrict employees' rights by creating excessively broad job descriptions." (35) Instead, "[t]he proper inquiry is a practical one." (36) The fact-intensive nature of this inquiry has led, as one might expect, to varying approaches in the lower courts. (37)

      The Court's analysis in Kennedy is somewhat instructive. Seemingly important to the Court's determination that Kennedy was not acting pursuant to official duties when he prayed at midfield was die fact that the prayers occurred at a time when "coaches were free to attend briefly to personal matters--everything from checking sports scores on their phones to greeting friends and family in the stands." (38) Thus, the Court may be suggesting that the extent to which one is allowed to engage in nonwork activity is at least partially determinative of whether the employee's speech is pursuant to official duties.

   2. Public Concern

      Public-employee speech must also be made regarding a matter of public concern in order to receive protection from adverse employment action. Speech regards a matter of public concern when "it can 'be...