Praying Coach Wins Supreme Test in String of Religious Liberty Wins - The American Spectator | USA News and Politics
Praying Coach Wins Supreme Test in String of Religious Liberty Wins
by
Joseph Kennedy, August 17, 2021 (PromiseKeepers/YouTube)

The Supreme Court ruled Monday that a Washington state high school football coach had his First Amendment rights violated when he was fired for leading a prayer at midfield after football games in which he coached were finished.

Joseph Kennedy, who was, until 2015, an assistant football coach at Bremerton High School, was told to halt his postgame, 50-yard-line prayer because the school district feared his prayers gave the appearance that the district was endorsing a religion. When he didn’t stop praying after games, the Bremerton School District let him go.

The Court, by a 6–3 vote, ruled along ideological lines that Kennedy’s prayer was private speech protected by the First Amendment on both free speech and free exercise grounds. It rejected arguments from the school district that Kennedy was acting in his job as a district-employed coach and that his players were pressured to join him in his prayers (in reality, participation was fully voluntary).

Writing for the majority, in which he was joined in full by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett and in part by Justice Brett Kavanaugh, Justice Neil Gorsuch wrote that, in his prayers, Kennedy was “not engaged in speech ‘ordinarily within the scope’” of his duties as a coach. The prayers occurred after the game, at a time when “school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.” While school employees — and players and parents — were all doing their own thing, Kennedy chose to get down on a knee and pray. It would entail an “excessively broad job descriptio[n],” Gorsuch wrote, to treat “everything teachers and coaches say in the workplace as government speech subject to government control…. That Mr. Kennedy chose to use the … time to pray does not transform his speech into government speech.”

As per the free exercise component of the case, Gorsuch continued,

Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.

Not only were the majority and minority in disagreement about the implications of the First Amendment, but they also offered differing versions of the facts of the case.

After taking inspiration from a movie (Facing the Giants) that he saw in 2008, in which the football coach of the losing team turns his season around and, in thanks, praises God after every game, Kennedy pledged to do the same. “I … promised God that I would take a knee by myself in quiet prayer at the 50-yard line following every game, win or lose,” he wrote in the Wall Street Journal.

This quiet, private prayer of thanks soon drew a crowd, as his players asked to join him, and they invited their opponents, some of whom also joined. Because word had spread through the community of his postgame prayer, eventually many spectators and members of the press surrounded him as he took a knee after football games.

This eventual gathering is what Justice Sonia Sotomayor, in her dissent, joined by Justices Stephen Breyer and Elena Kagan, said caused “severe disruption to school events.” Kennedy, she wrote, did not conduct prayers that were “private and quiet” at all; instead, he “consistently invited others to join his prayers and for years led student athletes in prayer.”

She said Kennedy was, in the eyes of any reasonable observer, “a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given [his] prior public conduct, overtly religious conduct.”

She lamented that the Court, in this decision, “yet again [pays] almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”

Kennedy, for his part, was ecstatic at the ruling: “This is just so awesome,” he said. “All I’ve ever wanted was to be back on the field with my guys. I thank God for answering our prayers and sustaining my family through this long battle.”

This opinion, coming near the end of the term’s decisions, entails an added benefit, as the ruling principle in such cases, Lemon v. Kurtzman, called, unironically, the Lemon test, came in for resounding criticism. This 1971 ruling, of which Gorsuch said the “Court attempted a ‘grand unified theory’ for assessing Establishment Clause claims,” is a three-pronged test in which a contested display, motto, or activity, in order to be constitutional, must have a secular purpose, must not principally advance or inhibit religion, and cannot induce an excessive government entanglement with religion. Gorsuch indicated the test had “long ago been abandoned” and was not applied in the ruling, while Sotomayor said the majority’s decision in Kennedy killed it. Either way, its demise is not mourned by conservatives.

The Kennedy decision also caps off a very positive term for proponents of religious liberty.

A week ago Tuesday, the Court ruled that the state of Maine could not deny parents wishing to take part in a government-funded tuition assistance programs simply because they wanted to apply the monies to religious schools. Maine, the most rural state in the Union, claims many residents who live in areas not served by public schools. The state offers tuition assistance to parents in these locations to send their children to the private school of their choice. But private “sectarian” schools — that is, religious schools — were barred from receiving such funds because of state concerns regarding violation of the establishment clause.

Two sets of parents who wanted to apply the tuition assistance to religious schools sued the state. After a number of defeats at lower courts, the parents’ case was granted cert by the high court. The Court ruled, again along 6–3 ideological lines, that the parents had been discriminated against.

Chief Justice John Roberts wrote in his opinion:

The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimina­tion against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

That case, Carson v. Makin, along with the Kennedy decision, put a bow on this term’s religious liberty cases. When taken in context of a ruling made earlier this year in favor of a group wishing to fly a Christian flag in front of Boston’s city hall, along with other victories for religious liberty in the past year or two — the Fulton case and the Masterpiece Cakeshop case come to mind — religious liberty seems to be in the midst of an impressive winning streak.

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