Supreme Court Rules In Favor of High School Football Coach Who Was Fired Over Postgame Prayers

What’s the story?

• The Supreme Court on Monday ruled in favor of a former high school football who was fired by a public high school in Washington state because he prayed on the field after games. The case, known as Kennedy v. Bremerton School District, concerned Joseph Kennedy, who was a high school football coach at Bremerton High School from 2008 through 2015. 
• After he was hired, Kennedy continued a tradition of pregame prayers that predated his tenure, and would also kneel on the field in prayer postgame. He later began to kneel in prayer alone at the 50-yard line after the game. As time went on, players from his team asked to join him, to which he replied, “This is a free country. You can do what you want.” On some occasions, most of the team would join, as would players from the opposing team, and Kennedy would deliver motivational speeches that included prayer.
• The school district learned of Kennedy’s prayers in 2015 after an employee from another school commended his actions in a conversation with the superintendent. District officials then asked Kennedy to stop the prayers to avoid what they believed would be a violation of the Establishment Clause. They also claimed that any religious conduct by a teacher or coach that wasn’t “nondemonstrative” was impermissibly coercive on students. 
• Kennedy stopped the pregame prayers and dropped religious references from the postgame speeches, but asked to be able to pray alone once all the players had left and not to be forced to “flee the scene if students voluntarily came to the same area” because district policy also prohibited him from “discourag[ing]” independent student decisions to pray. The district forbade him from engaging in “any overt actions” that could be perceived as endorsing prayer while on duty and tried to ban parents in the district and the public from accessing the field postgame.
• Kennedy offered a brief prayer by bowing his head alone at midfield after the game, although players from the other team and community joined him before he finished. District officials expressed appreciation for his effort to comply and admitted that his fleeting prayer began alone, but they informed him that it wasn’t enough and he would have to pray in private in a non-observable location. After the next game, he knelt and bowed his head at the 50-yard line where no one joined him, which he did after the final game.
• The coach was then put on administrative leave for “public and demonstrative religious conduct while still on duty” during those final three games. The district didn’t allege that he prayed with students and acknowledged they occurred while students were engaged in unrelated postgame activities, such as singing the school fight song. District officials later admitted that they had “no evidence that students have been directly coerced to pray with Kennedy.” The district then gave him a poor performance evaluation and didn’t extend his renewable contract.
• Kennedy sued in federal court seeking reinstatement. The district court and the Ninth Circuit Court of Appeals ruled in favor of the Bremerton School District. That prompted an appeal by Kennedy to the Supreme Court. Amici curiae (“friend of the court”) briefs supporting Kennedy’s stance were filed by Bremerton High School community members; religious liberty groups, including Jewish and Islamic groups; and several prominent current or former football players and coaches. Groups advocating for stronger interpretations of the separation of church and state, like the Freedom From Religion Foundation, filed briefs supporting the Bremerton School District.
• In a 6-3 ruling with conservative justices in favor and liberals opposed, the Court held that Kennedy’s postgame prayers were protected by the Free Exercise and Free Speech Clauses of the First Amendment as personal religious observances; and because the Constitution neither mandates nor permits the government to suppress religious expression.

What did the majority opinion say?

• Justice Neil Gorsuch wrote the majority opinion and was joined by Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and Justice Amy Coney Barrett, while Justice Brett Kavanaugh joined in part. The majority opinion rejected the argument that the Bremerton School District would be endorsing religion and violating the Establishment Clause by allowing Kennedy to pray postgame.

“Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period 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. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

• The majority opinion explained that not permitting Kennedy, or any other teacher or coach, to pray during a personal moment afforded by their role would be to treat religious expression as second-class speech:

“In reaching its contrary conclusion, the Ninth Circuit stressed that, as a coach, Mr. Kennedy served as a role model “clothed with the mantle of one who imparts knowledge and wisdom.” The court emphasized that Mr. Kennedy remained on duty after games. Before us, the District presses the same arguments. And no doubt they have a point. Teachers and coaches often serve as vital role models. But this argument commits the error of positing an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control. [Garcetti v. Ceballos (2006)]. On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria. Likewise, this argument ignores the District Court’s conclusion (and the District’s concession) that Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities. Others working for the District were free to engage briefly in personal speech and activity. That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [Tinker v. Des Moines (1969)].

• Gorsuch’s opinion concluded:

“Respect for religious expressions is indispensable to life in a free and diverse Republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”

• In addition to joining Gorsuch’s opinion, Justice Clarence Thomas and Justice Samuel Alito filed concurring opinions.

What did the dissenting opinion say?

• Justice Sonia Sotomayor filed a dissenting opinion which was joined by Justice Stephen Breyer and Justice Elena Kagan. The dissenting opinion argued that allowing a public school official to pray while performing their duties would violate both the Establishment Clause and the Free Expression Clause of the First Amendment:

“This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale, 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.”

• Sotomayor’s dissenting opinion concluded:

“The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” Trinity Lutheran Church of Columbia, Inc. v. Comer (2017).

Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent.”

— Eric Revell

(Photo Credit: dbking via Flickr / Creative Commons)