Former Bremerton High School assistant football coach Joe Kennedy.

Supreme Court backs praying coach Joseph Kennedy who knelt on the 50-yard line after games

A 6-3 majority said that the coach’s prayers were a form of private speech, protected by the First Amendment. The court’s liberal justices said the decision weakens the separation of church and state.

June 27, 2022

By John Fritze

Reprinted from USA Today

KEY POINTS:

• Kennedy lost his job after kneeling midfield after games at a public high school.
• The ruling could change how courts review religious actions by government employees.
• It was the latest Supreme Court decision in which the vote split along ideological lines.

WASHINGTON – In a decision with sweeping implications for the separation of church and state, the Supreme Court on Monday sided with a former high school football coach who lost his job for offering prayers at the 50-yard line after games despite objections from the school district that students felt compelled to take part.

In the latest instance of the nation’s highest court backing a religious freedom claim, a majority of the justices said that assistant coach Joseph Kennedy’s prayers were a private matter and did not amount to the school district’s endorsement of Christianity.

Associate Justice Neil Gorsuch wrote the 6-3 majority opinion. The court’s three liberal justices dissented, asserting that the majority had effectively abandoned a 1971 precedent that had once set the standard for how such cases should be resolved.

“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,” Gorsuch wrote. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by” the First Amendment.

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The decision came on the heels of a series of rulings in which the court has significantly shifted the interpretation of the Constitution toward a conservative viewpoint. Chief among those was the court’s decision on Friday to overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

Also last week, in another 6-3 opinion, the court struck down a century-old New York gun law that limited the ability of residents to obtain licenses to carry guns in public. In doing so, the court set a new standard for reviewing Second Amendment cases that could have a profound impact on other gun regulations across the nation.

Though less high profile than those cases, the decision Monday siding with the “praying coach” had implications not only for the practice of religion in schools but in other government contexts as well. In recent weeks, the court has repeatedly sided with religious plaintiffs challenging government policies that were crafted in response to the constitutional prohibition on public entities favoring one religion over another.

“Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired,” said Kelly Shackelford, president of First Liberty, which represented Kennedy. “We are grateful that the Supreme Court recognized what the Constitution and law have always said – Americans are free to live out their faith in public.”

Associate Justice Sonia Sotomayor, in a dissent joined by the court’s other two liberal justices, said the decision weakens the barrier between church and state.

“This case is not about the limits on an individual’s ability to engage in private prayer at work,” Sotomayor wrote in her dissent. “This case is about 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.”

Kennedy was placed on administrative leave in 2015 from his job at Bremerton High School, a public school near Seattle. The San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled last year that Kennedy was acting as a public employee when he offered the prayers and so his actions were not protected by the First Amendment.

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The high court rejected that argument, asserting that Kennedy’s prayer’s were separate from his official duties as a coach and employee at the school.

“He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the district paid him to produce as a coach,” Gorsuch wrote.

For decades, the court’s guiding doctrine for deciding cases dealing with the intersection of government and religion was the “Lemon test,” named after a 1971 decision in which the court ruled government policies must have a secular purpose, cannot advance or inhibit religion and cannot excessively entangle church and state.

In a 1984 concurring opinion that some lower courts have read as part of the Lemon test, Associate Justice Sandra Day O’Connor raised the idea that the justices should consider whether a policy amounts to an endorsement or disapproval of religion. But in recent years the court has bypassed Lemon, and Monday’s opinion openly dismissed it.

“This court long ago abandoned Lemon and its endorsement test offshoot,” Gorsuch wrote. In the dissent, Sotomayor asserted the court had “overruled” Lemon.

“In some ways, the court’s ruling … is unexceptional,” said Abner Greene, a professor at Fordham University’s School of Law. “But this Court again reaches more broadly than necessary, in its apparent mission to return us to understandings of our Founding Fathers.”

Rachel Laser, president of Americans United for Separation of Church and State, which represented the school district, said the decision dispenses with the way courts have for decades looked at disputes over religion in the public square.

“It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish,” Laser said. “As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.”

School officials said they offered Kennedy the option of praying elsewhere. They said they heard from players’ parents who were concerned their children felt compelled by peer pressure to participate. Kennedy countered that the accommodations were impractical because the spaces that officials offered were “insanely far away from my players.” And he said he never asked and pressured anyone else to pray with him.

During the April oral arguments in the case, several of the conservative justices indicated they thought the prayers were a private matter and different from a teacher praying in a classroom with students present. The Supreme Court ruled in 1962 that public schools could not offer prayers, even if participation by students is voluntary.

Several of the court’s liberal justices raised concerns during arguments this year about whether students might feel pressured to take part not because of any mandate from Kennedy but because it was important to their coach. Gorsuch waved those concerns off, saying there was no evidence that players felt they had to take part in the prayer.

That interpretation, Gorsuch said, would cause other problems in schools.

“Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice,” he wrote. “Under the district’s rule, a school would be required to do so.”

The court has looked favorably on religious freedom claims in recent disputes over the First Amendment’s establishment clause, which prohibits the government from becoming entangled with religion, and the amendment’s free exercise clause, which guarantees the right to practice religion free of government interference.

In 2014, the court upheld a centuries-old tradition of offering prayers to open government meetings, even if those prayers are overwhelmingly Christian. In 2019, the court ruled that a Latin cross on government land outside Washington, D.C., did not have to be moved or altered in the name of church-state separation. In May, the Supreme Court ruled that Boston could not deny a Christian group the ability to raise a flag at City Hall alongside secular organizations that are encouraged to do so to celebrate the city’s diversity. The court also struck down a state prohibition in Maine on using public money to attend schools that offer religious instruction.

“I’m still trying to process it,” Kennedy told the Kitsap Sun, part of the USA TODAY Network. “I haven’t stopped smiling once and it feels like my whole soul is vibrating. It’s awesome, it hasn’t settled in, but it’s awesome.”

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