WASHINGTON (CN) — A high school coach is bringing his fight to pray after football games to a Supreme Court audience on Monday, setting its conservative supermajority up for a test on the separation of church and state.
In 2015 Joseph Kennedy posted on Facebook, “I think I just might have been fired for praying.” The Bremerton High School football coach‘s game-day prayers at the 50-yard line were nothing new. At first, Kennedy prayed alone but soon some of his players and players and coaches from other teams in Washington state began to join him. A solitary prayer evolved into motivational speeches often including religious content.
Bremerton’s athletic director eventually told the coaching staff to end the practice but Kennedy didn’t listen. The school board has a policy that prohibits employees from encouraging or discouraging students from prayer, giving religious messages, or engaging in religious rites or indoctrination at school-sponsored activities. Kennedy was told he could continue his post-game prayers but just not with students at school activities.
After initially complying with the board’s instructions, Kennedy sent a letter to the district demanding that it rescind the recommendations and stating that he would return to praying at the 50-yard line after games with students. These prayers started to gain more attention as students, reporters and a state legislator, among others, ran onto the field to join him.
The state superintendent claimed Kennedy’s post-game prayers put students in an awkward position because they may feel compelled to join even if they don’t share the same faith. This led the school superintendent to again tell Kennedy to stop his public prayers while on duty. After he failed to comply, Kennedy was placed on paid administrative leave. Without Kennedy there to lead them, the players did not hold post-game prayers.
Kennedy sued the district but was denied injunctive relief by the trial court, the court of appeals and the Supreme Court. A federal judge later found that the school had been justified in putting Kennedy on administrative leave, and the Ninth Circuit affirmed. The Supreme Court agreed in January to take up the case.
School officials claim that Kennedy’s First Amendment rights were not violated because, when government employees speak as employees, they are not shielded from employer regulation.
“Kennedy tells a breathless tale of authoritarian government forbidding private religious expression, insisting that unless the Court applies his preferred legal test, religious practice will be quashed across the country,” Richard Katskee, an attorney representing the district, wrote in their brief. “But his argument relies on creative remodeling of both the facts and the law. Hypothetical constructs are no basis for adopting sweeping new constitutional rules.”
Katskee, who is with Americans United for Separation of Church and State, claims the district’s interests in protecting students outweigh Kennedy’s interest in praying with students.
“Under this Court’s long-standing jurisprudence, the District’s interests in protecting students from religious coercion and in preventing employees from commandeering government events outweigh Kennedy’s interest in praying with the students on the 50-yard line,” Katskee said.
The district doesn’t even believe Kennedy has a case anymore because he now lives in Florida. But Kennedy said he is ready and willing to return to his job if he wins the case.
“Even supposing that there were some genuine possibility that petitioner might decide to leave his home in Pensacola, Florida, and move approximately 2,800 miles back to Bremerton, Washington, for a $5,304 part-time coaching job, this Court has ‘made clear that such a speculation cannot ‘shield [a] case from a mootness determination,’” Katskee said.
Kennedy's case rests on claims that his speech reflected his personal religious expression and is protected by the First Amendment.
“When Joseph Kennedy knelt at the 50-yard line to say a brief personal prayer of thanksgiving, he did not do so as a mouthpiece for the school district,” Paul Clement, an attorney for the coach with Kirkland & Ellis, wrote in his brief. “His personal religious expression — as opposed to any earlier conduct he discontinued as soon as the district asked him — was about as far removed from government speech as a coach and teacher can get while still on school premises. It was thus doubly safeguarded by the First Amendment, as both protected speech and protected religious exercise.”
The case could upend nearly 60 years of established law. In Engel v. Vitale the court for the first time said that it was unconstitutional for state officials to create formal religious practices at public schools. They have maintained that stance since, but this case could challenge that thinking.
Faith leaders, states, members of Congress, football coaches and others have weighed in on the case.
The Rev. Douglas Avilesbernal, who is executive minister of the Evergreen Association of American Baptist Churches, which oversees Washington and several surrounding states and has a church in Bremerton, said he is worried about what will happen if government practices get intertwined with religion.
“There are many examples in history of what happens when religion is mixed with government — people are harmed and faith is sullied. That’s why Baptists have been such strong supporters of the separation of church and state since the founding of America,” Avilesbernal said in a statement.
Even former NFL football players have weighed in on the case, with retired punter Chris Kluwe and others warning of the influence coaches can have on their players.
“The coach has the power to decide whether kids get to play and has influence over how they get along with teammates,” Kluwe, now a high school football coach, said in a statement. “It’s deeply wrong for any coach to put high school students in the position of turning their backs on the team family if they don’t want to join the coach’s very public prayers on the 50-yard line after games. That’s why the law is so clear that coaches, as authority figures, cannot and should not compel athletes under their care to engage in prayer, either explicitly or implicitly.”
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