OPINION ANALYSIS
Justices side with high school football coach who prayed on the field with students
By Amy Howe
on Jun 27, 2022 at 11:24 am
This article was updated on June 27 at 1:59 p.m.
The Supreme Court on Monday ruled in favor of a high school football coach who lost his job because of his post-game prayers at the 50-yard line. By a vote of 6-3, the justices ruled that Joseph Kennedy’s conduct was protected by the First Amendment.
The court rejected the public school district’s argument that allowing Kennedy’s prayers to continue would have violated the Constitution’s establishment clause, which bars the government from both establishing an official religion and preferring one religion over another. And it pushed back against the argument that students might have felt obligated to join Kennedy’s prayers, stressing that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’”
The decision by Justice Neil Gorsuch was joined in full by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Justice Brett Kavanaugh joined most of Gorsuch’s opinion. The three liberal justices dissented. It was the second major ruling on religion and schools in less than a week. On June 21, along the same 6-3 ideological lines, the court struck down a Maine law that banned the use of public funds for students to use at private schools that provide religious instruction.
In 2015, Kennedy had been a part-time coach at Bremerton High School, a public school in Washington state, for seven years. During that time, he prayed at midfield after each game – first alone, but later with players and even some members of the opposing team joining him. When the school district learned about Kennedy’s prayers in September 2015, it expressed disapproval, and Kennedy briefly stopped his prayers.
On Oct. 14, 2015, Kennedy notified the school district that he intended to resume his prayers at the next game. After a scene that the school district describes as chaotic, with spectators and reporters knocking down members of the band in an effort to join Kennedy at midfield, the school district told him that his prayers violated the district’s policy, and it offered him other options to pray – for example, after the crowd had left. But Kennedy continued to pray at the next two games, prompting the district to place him on administrative leave and, eventually, decline to renew his contract for the following season.
Kennedy went to federal district court, where he argued that the school district’s actions had violated his rights under the free speech and free exercise clauses of the Constitution. The U.S. Court of Appeals for the 9th Circuit ruled for the school district, but on Monday the justices reversed that ruling. In a 32-page decision, Gorsuch agreed that Kennedy had met his part of the test for showing that the decision not to renew his contract ran afoul of both clauses. For his free exercise claim, Gorsuch explained, there was no dispute that Kennedy’s desire to pray was sincere, and the district’s prohibition on prayer targeted Kennedy’s religious conduct, rather than applying a neutral rule. And for his free speech claim, Gorsuch continued, Kennedy’s prayers were not part of his duties as a coach. Rather, Gorsuch observed, Kennedy’s prayers occurred “during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech.”
By contrast, Gorsuch wrote, the school district’s only real justification for its decision to fire Kennedy was that allowing the prayers to continue would have violated the establishment clause. But that argument, Gorsuch said, rested on a 1971 case, Lemon v. Kurtzman, that outlined a test for courts to use to determine whether a government law or practice violates the establishment clause. Under the Lemon test, the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.” Members of the court have long criticized Lemon, but Monday’s ruling expressly dismissed Lemon as having been “long ago abandoned.” Instead, Gorsuch continued, courts should determine whether a law or practice violates the establishment clause by looking at history and the understanding of the drafters of the Constitution – which the court of appeals failed to do.
Gorsuch similarly rejected the school district’s argument that it could prohibit Kennedy’s post-game prayers so that students did not feel compelled to join him in praying. “There is no indication in the record,” Gorsuch noted, “that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension.” Gorsuch distinguished Kennedy’s case from cases “in which this Court has found prayer involving public schools to be problematically coercive.” Unlike those earlier cases, Gorsuch reasoned, Kennedy’s prayers “were not publicly broadcast or recited to a captive audience,” and students “were not required or expected to participate.”
The school district’s actions “rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” Gorsuch concluded. “The Constitution neither mandates nor tolerates that kind of discrimination.”
As they did last week in Carson, the court’s three liberal justices dissented. In an opinion that was joined by Justices Stephen Breyer and Elena Kagan, Justice Sonia Sotomayor complained that Gorsuch had “misconstrue[d] the facts” of the case, depicting Kennedy’s prayers as “private and quiet” when the prayers had actually caused “severe disruption to school events.”
More broadly, Sotomayor continued, although Gorsuch had portrayed the case as whether and when Kennedy could pray privately, the key question in the case was in fact “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.” For Sotomayor, the answer was no. Particularly when it comes to schools, she explained, the government must remain neutral about religion, because of the important role that schools play and because children are especially susceptible to feeling compelled to join in prayer. Indeed, she noted, students did feel obligated to join Kennedy and, later, their teammates in prayer.
Monday’s ruling, Sotomayor concluded, “weakens the backstop” that the establishment clause provided to protect religious freedom. “It elevates one individual’s interest in personal religious exercise,” she contended, “over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”
Kelly Shackelford, the president and CEO of First Liberty Institute, which represented Kennedy, hailed the decision as “a tremendous victory for all Americans.” Paul Clement, who argued in the Supreme Court on Kennedy’s behalf, added that “[a]fter seven long years, Coach Kennedy can finally return to the place he belongs – coaching football and quietly praying by himself after the game.”
Rachel Laser, the president of Americans United for Separation of Church and State, which represented the school district, took a different view. She called the decision “the greatest loss of religious freedom in our country in generations” and she warned that Kennedy’s supporters would “try to expand this dangerous precedent – further undermining everyone’s right to live as ourselves and believe as we choose.”
This article was originally published at Howe on the Court.
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Cases: Kennedy v. Bremerton School District
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