“That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent,” Gorsuch wrote.
The Court explained why Kennedy’s prayer is not government speech, even though he was a government employee. The opinion stated that his words were not “pursuant to a government policy,” he was not “seeking to convey a government-created message,” and he was not acting in the normal scope of his duties because the game was over, he was not providing instruction or game strategy, and that he prayed at a time when he was free to do other things like “attend briefly to personal matters.”
Justice Samuel Alito also recognized in an concurring opinion that Kennedy prayed “while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities.”