Supreme Court Should Flag School District for Personal Foul Over Coach’s Postgame Prayer

COMMENTARY: In ‘Kennedy v. Bremerton School District,’ the nation’s highest court will clarify the Constitution’s protection of the religious expression of teachers, coaches and other public servants.

Coach Joseph Kennedy is shown kneeling in prayer at Bremerton High School in Washington state. He was fired for doing so. Now, his case will go before the U.S. Supreme Court.
Coach Joseph Kennedy is shown kneeling in prayer at Bremerton High School in Washington state. He was fired for doing so. Now, his case will go before the U.S. Supreme Court. (photo: First Liberty Institute; republished with permission)

The Supreme Court has agreed to hear the case of Joseph Kennedy, an evangelical Christian high-school football coach from Washington state. For the last seven years, he has knelt and prayed on the 50-yard line after games — what professional football players and coaches have been doing for the last few decades or more. 

This has aroused the curiosity of onlookers, persuaded some Christian students to join him in prayer — and infuriated liberal educationalists and their supporters. 

And now the controversy has escalated to the point where, in Kennedy v. Bremerton School District, the nation's highest court will clarify the Constitution’s protection of the religious expression of teachers, coaches and other public servants. 

Coach Kennedy “lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended,” explains Kennedy’s counsel of record, former Solicitor General Paul Clement, in papers filed with the Supreme Court. Lawyers at Americans for Separation of Church and State are representing the Bremerton School District. They see things differently. “[T]he School District never imposed the restrictions that the petition asserts,” they write. Kennedy's prayer wasn't private. He was “often surrounded by students and he invited opposing coaches to join,” and “the District later heard from players’ parents that their children felt ‘compelled to participate.’” What’s more, they assert, the school district benevolently offered Kennedy an adequate accommodation: “time and space to pray before and after games, in the press box or elsewhere [so] that Kennedy would not be surrounded by the team.”

Parties in a conflict typically describe the facts of a case differently. What’s interesting here is that judges reviewing the dispute are similarly divided. 

“At the outset, we address Kennedy’s repeated contention that the practice he sought to engage in was a brief, personal, and private prayer. While his prayer may have been brief, the facts in the record utterly belie his contention that the prayer was personal and private,” wrote a three-judge panel of the 9th Circuit Court of Appeals that ruled in favor of the school. The 9th Circuit declined Kennedy’s request that the full court rehear his case en banc over the objection of 11 members of that court. One of them, senior Judge Diarmuid O’Scannlain, set out the “constitutionally relevant” facts of the case that, he believed, required a rehearing. One judge on the initial panel responded with a lengthy opinion that included a four-page chart challenging O’Scannlain’s summary of the facts and warning of “the Siren song of a deceitful narrative of this case.” 

But the reason the Supreme Court granted review of Kennedy's case likely has nothing to do with this kerfuffle over one or two disputed factual wrinkles. Every year the court receives more than 8,000 requests for review, but hears only about 80. And it’s well understood by Supreme Court litigators that the court is unlikely to review cases where it would have to resolve some difficult factual question in order to decide the question presented. 

Indeed, when the Supreme Court denied Kennedy’s initial request for emergency relief, Justice Samuel Alito, joined by Judges Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, noted that the court could not reach the important free-speech issue raised by Kennedy “until the factual question of the likely reason for the school district’s conduct is resolved” by the lower district court. Since then, the district court ruled that the school district’s concern for the “risk of constitutional liability associated with Kennedy’s religious conduct was the ‘sole reason’ the District ultimately suspended him." 

Does such a reason violate the Constitution? Although the 9th Circuit wasn’t convinced, I’m betting a majority of the justices understand that it does.

Free speech, the free exercise of religion, and the prohibition on government establishment of religion are three important First Amendment protections threatened by the Ninth Circuit’s treatment of Coach Kennedy’s case that the court will be addressing. The 9th Circuit panel’s most egregious mistake relates to Kennedy’s free-speech rights. The government “as employer” has more power to restrict speech of its employees than it does over the citizenry at large. But, in the school setting, as in any other government job, public employees’ expression that falls outside their official job duties is protected speech. 

“Millions of Americans give thanks to God, a practice that has nothing to do with coaching a sport,” noted Judge O’Scannlain. Claiming that Kennedy’s time of prayer after a game was finished interfered with his job as a coach is ridiculous — and thus disciplining him for praying is unconstitutional.

The 9th Circuit panel also offered an alternative basis for ruling in the school district’s favor. Even if Kennedy’s speech was “private” speech, the panel asserted, the district had a compelling reason to censor it — namely, avoiding a violation of the Establishment Clause. 

There are two problems here. First, the panel forgets that the Establishment Clause’s supposed separation of church and state is limited by the Free Exercise Clause. As Judge O’Scannlain aptly pointed out, the panel’s opinion “reaches the troubling conclusion that the Constitution not only permitted, but required, the school district to punish Kennedy’s private prayer.” This, he lamented, “subverts the entire thrust of the Establishment Clause, transforming a shield for individual religious liberty into a sword for governments to defeat individuals’ claims to Free Exercise.” A second problem is that the opinion ignores the simple rule underlying the court’s Establishment Clause cases: Just because the government doesn’t censor someone doesn’t mean it endorses what the person says. 

Let’s be clear about one thing: The Supreme Court’s ruling in Kennedy v. Bremerton School District will not be about whether it’s appropriate that coaches lead sessions of prayer after games. Even some Christians think Joseph Kennedy’s prayer sessions should be conducted at another time and in a different place. But, if you’ll excuse the cliché, this is a free country. Despite what Bremerton school officials say, I don’t believe for a second that anyone was compelled to join in his prayers. On the other hand, children in public schools across the country are compelled to attend lessons in which many subjects, and especially history, are distorted by quasi-religious gender and racial ideology. Does the predominantly liberal 9th Circuit have anything to say about that? 

Back in the other Washington, meanwhile, oral argument is set for April, and the court’s decision will be handed down before the end of the court’s term in early July — well before the 2022-23 football season begins. If you miss the ruling, there will be a simple way to find out whether our constitutional freedoms have been protected: Just look at the 50-yard line after a Bremerton football game.