USA TODAY International Edition
Supreme Court leans toward ousted coach
Justices ponder questions of prayer and free speech
WASHINGTON – The Supreme Court’s conservative majority appeared to be leaning against a public school that ousted a football coach for praying on the 50- yard line after games as some justices suggested Monday that they saw the prayers as a private matter.
In one of several cases before the court this term testing the limits of Americans’ ability to exercise religion in public, former assistant coach Joseph Kennedy sued Bremerton High School for violating his First Amendment rights when officials declined to re- up his contract after some players joined him midfield to take part in the prayers.
The justices are being asked in part to sort out whether the prayers are a form of government speech, given that Kennedy was a public school employee. Such a finding would give the school district the edge. Another question the court debated: whether players felt coerced to take part in the prayers to curry favor with Kennedy.
Members of the court’s conservative wing pressed the lawyer for the school district with hypotheticals indicating skepticism of the government- speech argument.
“It’s not audible to all players,” said Associate Justice Brett Kavanaugh. “They’re not all there. They don’t have to be there. It’s not a team event. ... You’re relying on it being visible, and then the question is, how far does that go? The coach does the sign of the cross right before the game. Could a school fire the coach for the sign of the cross?”
Such a display would be “perfectly fine,” said Richard Katskee of Americans United for Separation of Church and State, which is representing the school district – so long as the coach wasn’t addressing the team or making himself the center of attention.
“I don’t know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game,” Kavanaugh said.
The Bremerton School District near Seattle told the Supreme Court last year that school officials had heard from players’ parents who said their children felt compelled to join in the prayers.
Several of the court’s liberal justices raised concerns about whether students might feel pressured to take part not because of any mandate from Kennedy but because it was important to their coach. Associate Justice Elena Kagan asked Kennedy’s lawyer to assume the school district had raised that argument initially.
“We’re worried that the students will feel he gets to put me into a football game, or not,” Kagan said, intoning how the school might have put it. “He gets to give me an A in math class, or not. And this is a kind of coercion that’s improper for 16- year- olds.”
Paul Clement, representing Kennedy, said that would be a valid concern if the coach was praying as part of a postgame pep talk but not when he is “by himself at the midfield giving a 15- second, fleeting prayer.”
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. But in recent years the court has bypassed Lemon, and some conservative groups want it thrown out.
In a 1984 concurring decision 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.
Kavanaugh and other conservative justices shot down the idea Monday that the so- called endorsement test should apply in Kennedy’s case.
“That has not been applied by this court in several decades,” Kavanaugh said. “I don’t think there is such a test in our case law anymore.”
“Sure,” Clement responded. “But it’s a stubborn fruit.”
The U. S. Court of Appeals for the 9th Circuit in San Francisco ruled last year that Kennedy was acting as a public employee and that his prayers were not protected by the First Amendment.
The dispute made Kennedy, who was placed on administrative leave in 2015, a cause celebre among religious conservative groups who asserted he was denied his free speech rights as a private citizen. As the controversy built, Kennedy was joined on the field after games by media and lawmakers. School officials said the hullabaloo on the field was reason enough to shut down the prayers as a public safety matter.
Kennedy’s case made it to the Supreme Court once before, in 2019, as he sought to reclaim his job while the case continued. The court denied his appeal, but four conservative justices wrote at the time that a lower court’s ruling in favor of the school was “troubling” and that Kennedy’s claims “may justify review in the future.”
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 centuriesold 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. This term, the Supreme Court is considering a case about a religious group that wants to raise a flag outside Boston’s City Hall just as some secular groups do.
A decision in Kennedy’s case is expected this summer.