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Coach prevails at Supreme Court on game-time prayers

Monday's ruling pushed the three Democrat-appointed justices to complain in dissent about the continued erosion of the separation of church and state.

WASHINGTON (CN) — Public school officials in Washington State who tried to prevent a football coach from leading prayers on the 50-yard line after games violated the First Amendment, the Supreme Court ruled 6-3 on Monday.

Writing for the conservative supermajority, Justice Neil Gorsuch said that school board in Bremerton, just outside Seattle, tried to punish coach Joseph Kennedy for his prayer because of a “mistaken view” that it was supposed to suppress religion. 

“The Constitution neither mandates nor tolerates that kind of discrimination,” Gorsuch wrote. 

In yet another ruling split on ideological lines, Justice Sonia Sotomayor scolded in a dissent joined by Justices Stephen Breyer and Kagan that the court has put one person’s religious interests above society’s interest in protecting the separation of church and state. 

“Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection,” the Obama appointee wrote. “In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.” 

Coach Kennedy’s post-game prayers at the 50-yard line started off as a solitary ritual, but the Bremerton school board cracked down as players, local lawmakers and the media began to take notice and the prayers also evolved into motivational speeches with religious content. 

Kennedy initially complied with the board's request that he stop including students in his prayers, and that the prayers no longer coincide with school activities, but the school superintendent put Kennedy on paid administrative leave when he began ignoring those instructions.

The coach's bid for injunctive relief went all the Supreme Court in 2019 but was unsuccessful. He found relief Monday on the merits, however, after the conservative justices appeared primed in oral arguments to expand prayer at public schools. 

“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 for the majority this morning. 

Kennedy’s attorney, Paul Clement with Kirkland & Ellis, did not respond to requests for comment. He had argued before the court that the punishment of his client on leave for praying violated the free speech and free exercise clauses of the First Amendment. 

As the school district saw it, however, Kennedy’s rights cannot get priority over the rights of the students. Richard Katskee, the attorney for Bremerton who is with Americans United for Separation of Church and State, said some students felt pressured to pray with Kennedy fearing they wouldn’t get fair playing time if they didn’t. 

Gorsuch said the Free Exercise Clause protects the right to hold religious beliefs both in private and in public. 

“The Clause protects not only the right to harbor religious beliefs inwardly and secretly,” Gorsuch wrote. “It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.’” (Parentheses in original.)

The majority claims the issue before them does not involve Kennedy leading prayers with students and instead only prayers after three games in October of 2015. Gorsuch wrote that Kennedy engaged in these prayers during the post-game period when coaches can greet family and express other forms of free speech, so his prayer should be classified as private speech and not a part of the duties of his government job. 

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“When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach,” Gorsuch wrote. “He did not speak pursuant to government policy. He was not seeking to convey a government-created message. 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. Simply put: Mr. Kennedy’s prayers did not ‘ow[e their] existence’ to Mr. Kennedy’s responsibilities as a public employee.” 

Sotomayor said the majority misconstrued the facts of the case and erred by looking at issues in the case divorced from the context and history of Kennedy’s prayer practice. 

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field,” Sotomayor wrote. “Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.” 

Gorsuch meanwhile rejects the insinuation that the Establishment Clause limits the Free Exercise and Free Speech Clauses, insisting that the clauses are not at odds. 

“A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others,” Gorsuch wrote. 

The majority said there was no evidence to support claims that Kennedy was coercing students to pray. Gorsuch said that while students might have seen or heard Kennedy pray after games, learning how to tolerate this kind of speech is part of living in a pluralistic society. 

“This Court has long recognized as well that ‘secondary school students are mature enough ... to understand that a school does not endorse,’ let alone coerce them to participate in, ‘speech that it merely permits on a nondiscriminatory basis,’” Gorsuch wrote. “Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But ‘[o]ffense . . . does not equate to coercion.’” 

Sotomayor referred to the majority’s analysis on this point as “toothless.” 

“Even on the Court’s myopic framing of the facts, at two of the three games on which the Court focuses, players witnessed student peers from the other team and other authority figures surrounding Kennedy and joining him in prayer,” Sotomayor wrote. “The coercive pressures inherent in such a situation are obvious.”

The dissent says public school teachers leading religious practices violates core constitutional protections. 

“Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment,” Sotomayor wrote. 

Following the ruling, the Bremerton School District said its focus has always been to protect students and that it will continue to focus on protecting students’ rights and safety.  

“In light of the court’s decision, we will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff,” the school district said in a statement. “We look forward to moving past the distraction of this 7-year legal battle so that our school community can focus on what matters most: providing our children the best education possible.”

Americans United for Separation of Church and State, which represents the school district, said the ruling represented a loss of religious freedom and focused on the demands of “far-right Christian extremists.” 

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” Rachel Laser, president and CEO of AU, said in a statement. “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. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.” 

Bremerton's loss on Monday comes as the Supreme Court finishes out the current term before summer recess. On Friday, the 6-3 conservative supermajority sparked nationwide protests by overruling its precedent in Roe v. Wade cementing the federal right to abortion. Earlier last week, the court opened the door for religious schools to get state money under a tuition assistance program. 

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