Today the U.S. Supreme Court ruled that a school district cannot prohibit football coach’s on-field prayer.
The nation’s highest court previously heard the case in which a high school football coach was fired for silently praying on the field after games. Most of the Justices seemed favorable to Coach Kennedy’s arguments during oral arguments and, today, they upheld his First Amendment rights.
Coach Joe Kennedy, an 18-year Marine veteran, lost his job for praying at the 50-yard line after games and the Supreme Court ruled that the school district violated coach Joe Kennedy’s First Amendment rights.
“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,” Justice Neil Gorsuch wrote in the Court’s opinion. “Religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s,” Gorsuch wrote. “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.”
Chief Justice John Roberts, Justice Clarence Thomas, Justice Brett Kavanaugh, Justice Samuel Alito and Justice Amy Coney Barrett joined the majority opinion in its entirety.
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Justice Sonia Sotomayor dissented, joined by Justice Stephen Breyer and Elana Kagan.
In her dissent, Sotomayor introduced the case as being “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,” and wrote, “The Constitution does not authorize, let alone require, public schools to embrace this conduct.”
The case focused on two questions: (1) Whether a public school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.
In his argument, Kennedy framed the question before the justices as whether his “brief, quiet prayer” at the 50-yard line is protected by the First Amendment and, if it is, whether public schools can nonetheless prohibit it to avoid violating the establishment clause. The Constitution protects prayer and both public school teachers and their students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”
Bremerton School District countered with the argument that when Kennedy prayed at the 50-yard-line after games, everyone saw him as a coach and serving as a “mentor and role model.” Since Kennedy was acting as a government employee at that moment, the district argues that his speech was government speech not protected by the First Amendment.
During oral arguments, the attorney for Bremerton High School had a difficult time responding to Justice Gorsuch’s question about whether a coach doing the sign of the cross was government speech which the district could restrict. Justice Thomas and others pressed the question of whether the district would censor a person kneeling for non-religious reasons.
In 2008, Bremerton High School football coach Kennedy made a promise to God that he would pray and give thanks after each game he coached, regardless of the outcome. Coach Kennedy would simply drop to one knee and pray for 15-30 seconds on the 50-yard line at the end of games to “offer a silent or quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” Initially, Kennedy prayed quietly and alone. After several games, some students took notice and joined him. If students gathered, Kennedy began offering short motivational speeches to players, ending with a brief prayer. Sometimes no players gathered, and he prayed alone. He did this for seven years without any complaints by school officials. Then in 2015, the school district ordered Kennedy to stop, stating his practice violated the Establishment Clause of the U.S. Constitution. When he refused, the district terminated him.
“It was my covenant between me and God that after every game, win or lose, I’m going to do it right there on the field of battle,” Kennedy told ABC News of his ritual, which he said typically lasted less than a minute.
“This is a right for everybody. It doesn’t matter if you’re this religion or that religion or have no faith whatsoever,” he said. “Everybody has the same rights in America.”
A federal district court in Washington and then the Ninth Circuit Court of Appeals sided with the school district. In 2019, the U.S. Supreme Court declined to review the case but four justices — Alito, Thomas, Gorsuch, and Kavanaugh — signaled that the Court would be open to hearing the case at a future time. They wrote, “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
Kennedy returned to the Supreme Court in September 2021, telling the justices that the Ninth Circuit’s ruling used “imagined Establishment Clause concerns to inflict real Free Exercise Clause damage.” The High Court finally took the case on January 14, 2022.
Bremerton School District’s defense states it wants to avoid the perception that it approves of Coach Kennedy’s religious speech. However, Liberty Counsel’s amicus brief illustrates it is illogical to believe the school district was endorsing religion by permitting Coach Kennedy to silently pray on the field after the game. He did not lead a group in prayer during the game; he did not say a prayer over the intercom; and he did not compel team members to join him in prayer. Rather, as a private individual who happened to be the coach, he went to the fifty-yard line to quietly say a prayer. Since school officials would have permitted him to engage in other speech on the field, censoring his religious expressive speech is viewpoint discrimination and demonstrates hostility toward religion.
