Punished for Private Prayer? Supreme Court Hears the Case of Coach Kennedy and Faith on the Field
Coach Kennedy is also supported by a group of current and former NFL players including Minnesota Vikings quarterback Kirk Cousins, Chicago Bears quarterback Nick Foles, and former NFL quarterback Drew Stanton.
On Monday morning the Supreme Court heard oral argument in Kennedy v. Bremerton School District. Its decision – involving a Christian high school football coach banned from praying on the 50-yard line after games – will tell us whether the Justices have a balanced understanding of the freedoms of speech and the exercise of religion as well as a proper understanding of the Establishment Clause.
After Monday's argument, it seems clear that most of them do.
Some background: Joseph Kennedy is a former U.S. Marine who in 2008 became an assistant football coach at Bremerton High School in Bremerton, Washington – the same school he graduated from in 1988. He is a devout Christian who believes he is compelled by his faith to “give thanks through prayer” at the end of each game. For years, Kennedy has knelt on the 50-yard line and said a short prayer after games. After first, he prayed alone. Eventually, some players asked if they could join him. “This is a free country,” he told them.
Kennedy prayed after games for seven years. Sometimes players from the opposing team did as well. In the fall of 2015, an employee from another school congratulated Bremerton’s principal for permitting their coach to give witness to his faith in such an unlikely public setting.
That supportive comment set off a firestorm.
The school district opened an investigation into Kennedy’s practice. It amended its policies and enacted a sweeping new ban on “demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” As an “accommodation,” the district said that Kennedy could pray after games in a “private location within the school building, athletic facility, or press box.” It was unclear how the school district planned to “accommodate” Kennedy’s religious expression after away games.
Undeterred by the school district’s authoritarian tactics, Coach Kennedy continued his private prayer on the field after games. The school district placed him on administrative leave and gave him a poor performance evaluation after the 2015 season ended. They advised against rehiring him. Kennedy has not returned to the field since.
Coach Kennedy filed suit in federal court, claiming that Bremerton violated his constitutional rights to free speech and the free exercise of religion. He lost in both the lower district court and court of appeals. And then went to the highest court in the land.
One of the country’s most skilled appellate advocates, Paul Clement, represented Kennedy before the Supreme Court on Monday morning. Clement, now a partner at a top private law firm, served as U.S. Solicitor General from 2004 to 2008. As such, he was responsible for conducting and supervising all Supreme Court litigation on behalf of the United States. He has argued over one hundred times in the Supreme Court in some of the most important religious freedom cases in recent history. Monday’s argument was Clement’s 110th.
The justices kept Clement at the podium for over an hour peppering him with questions and hypotheticals. He was up against the secularist pressure group Americans United for Separation of Church and State, which represented the school district before the high court – a disturbing indication of just how unwelcome religious expression is in Bremerton.
Kennedy’s case involves rights that are protected under the free speech and free exercise guarantees of the First Amendment. As Paul Clement pointed out, the coach's prayer is therefore “doubly protected.”
With two constitutional rights at play, what standard should the Court apply? Bremerton’s lawyer urged the Court to apply a deferential balancing test of interests used in cases involving only speech rather than a more exacting standard of review used when religious exercise is muzzled.
A majority of the Justices seemed unpersuaded.
It is true that the government in its role as employer has more power to restrict the speech of its employees than it does over the general public. Nevertheless, public employees’ expression that falls outside their official job duties is protected speech. Kennedy certainly engaged in government speech as a coach, but the relevant speech here – his prayer after games had ended – was clearly private expression.
Both Justices Clarence Thomas and Samuel Alito focused on this religious nature of Kennedy’s prayer, asking whether Bremerton could fire coaches who, say, knelt in opposition to racism or the Russian invasion of Ukraine.
The district court and a three-judge panel of the Ninth Circuit ruled that even if Kennedy’s prayer was “private” speech, Bremerton had a compelling reason to censor it — namely, avoiding a violation of the Establishment Clause by “endorsing” it. Clement skillfully explained that “a public school does not endorse religion merely by declining to censor religious expression.”
It was significant that Bremerton’s lawyer challenged the factual finding of the lower courts that the sole reason Kennedy was fired was that the school district objected to his display of religious belief. The school now claims it also wanted to protect students from undue “coercion” to join Kennedy in prayer.
Justices Elena Kagan and Sonia Sotomayor picked up this after-the-fact concern and ran with it. “What about pressure on students to pray against their parents’ wishes?” asked Sotomayor.
Justice Brett Kavanaugh stepped in. In response to his questions, Clement responded that the record was “crystal clear” that the school district disciplined Kennedy out of mistaken concerns that it was endorsing his prayer.
The Becket Fund for Religious Liberty filed an amicus brief in support of Kennedy on behalf of the United States Conference of Catholic Bishops. Their brief offers a historical look at the practices and understandings of what constitutes religious establishment under the Establishment Clause. Specifically, they note that prayers causing feelings of discomfort are not the sort of coercion prohibited by the Establishment Clause. Further, they argue that elevating such feelings can lead to discrimination against religious viewpoints.
Kennedy is also supported by a group of current and former NFL players including Minnesota Vikings quarterback Kirk Cousins, Chicago Bears quarterback Nick Foles, and former NFL quarterback Drew Stanton. They advocate for the “robust protection for the First Amendment rights of both coaches and student athletes at public high schools and universities across the Nation.” Each of the amici athletes played football for at least one public high school or university before becoming a professional player – and each of them “voluntarily exercised his constitutional right to pray before, during, and after games” and “can testify first hand to the power of prayer.”
A host of anti-religious freedom and government organizations filed briefs in support of Bremerton. Joining them were two organizations that would once have upheld the rights of Joseph Kennedy: the ACLU and two of the nation’s largest teachers’ unions. Judging by Monday's proceedings, they will not be happy with the eventual decision in Kennedy v. Bremerton School District, which is expected before the Court’s term ends in early July.