Does a football coach at a public high school have the right to pray, visibly for players and fans to see, after football games in which he coaches?
The Bremerton School District, in Washington state, says no; Joseph Kennedy, the coach in question, says yes; and now the U.S. Supreme Court will decide who is right.
In oral arguments Monday, the Court took up Kennedy v. Bremerton School District. This is the second time the case has come before the body. In 2019, on appeal from the Ninth Circuit Court of Appeals, the Court declined to get involved but remanded the case back to the lower court. Kennedy returned after another Ninth Circuit ruling against him, and this time the Court granted cert.
Kennedy, who was fired because of the brouhaha, wants both to return to the sidelines at Bremerton High School football games and to champion the freedoms of worship and speech he fought for as a U.S. Marine.
The case has implications for three constitutional rights, all from the First Amendment: the right of free exercise of religion, the right to free speech, and the right of students not to be subjected to school officials imposing religion on them.
The facts of the case are murky, with both sides proffering opposing rationales for the dispute. Kennedy says he was fired for conducting a private, silent prayer at the 50-yard line after games; the district says he was suspended for “refusing to stop holding public prayers at the 50-yard line.”
Kennedy traces the case back to a movie he saw one night in 2008 while channel surfing: Facing the Giants. In the movie, a football coach of a losing team turns his season around and, in thanks, praises God after every game from then on. Kennedy was inspired by this and 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.
While initially taking a knee by himself, soon, not by Kennedy’s bidding, his players asked to join him, and they invited their opponents, some of whom also joined. The school district objected, citing their fear of lawsuits because of violation of the establishment clause of the First Amendment and the unwelcome, albeit tacit, pressure they felt this prayer exerted on players to join him.
A back-and-forth ensued between Kennedy and school officials about possible solutions to the issue. Kennedy says he complied with district requests but that administrators kept moving the goalposts. “Eventually,” he wrote, “they said I had to refrain from any ‘demonstrative religious activity’ visible to students or the public. They suggested instead I walk across the field, up the stairs, across a practice field, into the main school building, down the hall and into the janitor’s office if I wanted to pray after games.”
This, he said, was not the proper message to send about the power and efficacy of prayer. He returned to the 50-yard line after the next game, and because word had spread through the community of the dispute, many spectators and the press surrounded him as he prayed. The district characterized this as a safety concern, for the rush of participants from the stands, and alerted media, constituted a “stampede” to the center of the field, as a federal appeals court put it, endangering a marching band, among others. (So many people wanting to pray after a football game seems like the sort of “problem” public school officials would worry about.)
The issues at stake are numerous: Is Kennedy praying as a private citizen or as a government employee? He maintains the former — the game is over when he kneels for prayer; coaches and players and parents and friends congregate after games and converse with each other casually; he simply chooses to talk to God during that time. He is entitled as a private citizen to practice his faith. The district says he’s still acting in the capacity of a coach employed by the school at the time of his prayer — everybody who sees him on the field after the game sees him as the coach; it’s his job. As a government employee at the time of the prayer, his speech is government speech and can be curtailed by the district, and to avoid violating the Constitution’s establishment clause, the district is correct in restricting the coach’s religious freedom. (READ MORE from Tom Raabe: Ohio Professor Wins Settlement in Preferred Pronoun Case)
Another question is, are the players having religion imposed on them? Kennedy says players joined him of their own accord, and no player who didn’t join the prayer group was penalized for not doing so; in fact, two who did not pray — one said he was an agnostic and the other that he did not believe in God — became captains of one of his teams. The district, meanwhile, says some parents said their kids felt pressure to “pray to play.”
Conservatives on the Court are already on record as bothered by the case. In a statement written for the 2019 denial of cert, Justice Samuel Alito said the Ninth Circuit’s “understanding of the free speech rights of public-school teachers is troubling.” He added, “What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith — even when the coach is plainly not on duty.” He was joined in the opinion by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh.
Court watchers seem in agreement that on Monday the conservative justices leaned Kennedy’s way in their questioning and that their liberal counterparts went the other direction.
The justices broached analogous scenarios to the opposing counsels, asking whether, for example, a coach who crosses himself before a game would be within the law, or a teacher who reads the Bible aloud before class, or coaches or teachers who conduct their school duties with ashes applied to their foreheads on Ash Wednesday. Or, for that matter, as Alito asked, are coaches permitted to make political statements, like a baseball coach going into center field and waving a Ukrainian flag?
Wrote Kennedy, “I was fired for taking a knee in prayer by myself at the 50-yard line for 15 to 30 seconds after high-school football games. Unless the U.S. Supreme Court rules in my favor, teachers could be fired for praying over their lunch in the cafeteria if students can see them. That doesn’t seem like the Constitution I fought for in the Marine Corps.”
A ruling is expected before the Court takes its summer recess.