WASHINGTON (CN) — The Supreme Court appeared to tee up the expansion of prayer at public schools on Monday while hearing about a Christian football coach who says his on-campus expressions of faith have constitutional protection.
The case comes as the country undergoes a national debate over what students are learning in public schools and how to deal with divisive speech. The justices leaned into some of these controversial debates, using them as hypotheticals.
“If the coach, instead of taking a knee for prayer, took a knee during the national anthem because of moral opposition to racism, how would your school district respond,” Justice Clarence Thomas asked Richard Katskee, an attorney representing the school district of Bremerton, Washington, just west of Seattle.
Justice Samuel Alito traded domestic politics for international, invoking the war by Russia in Ukraine.
“Suppose that everything about this case is exactly the same as it was in reality," the Bush appointee asked, "with this one difference: When coach Kennedy went out to the center of the field on these two occasions, all he did was wave a Ukrainian flag — would you have fired him?”
The liberal justices seemed to side with the school district.
“They were willing to let him pray anywhere he wanted in the school … I don't know of any religion that requires you to get at the 50-yard line — the place where postgame victory speeches are given,” Justice Sonia Sotomayor said. “What religion requires you to do it at that spot?”
It was at the 50-yard line where Joseph Kennedy, the football coach at Bremerton High School, routinely took a knee at the conclusion of team games to pray to God. Kennedy at first prayed alone, but soon his team and other teams began to join him, and the prayers turned into motivational speeches often including religious content. These prayers continued until a coach from another team mentioned them to a board member. The school’s athletic director tried to stop the practice, but Kennedy refused.
Because Bremerton is a public school, its employees represent the state and therefore are held to certain standards. Employees can’t encourage or discourage students from prayer, give religious messages, or engage in religious rites or indoctrination at school-sponsored activities. Schools nevertheless must also make accommodations for employees to be practice their rights. In this case, the school said Kennedy didn’t have to stop his post-game prayers; he just couldn’t continue them with students while conducting his official duties.
When Kennedy ignored the orders from Bremerton's superintendent to stop his public prayers while on duty, he was put on paid administrative leave and filed suit.
His attorney, Paul Clement with Kirkland & Ellis, told the Supreme Court this morning that the district violated the First Amendment’s free speech and free exercise clauses.
“When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own,” Clement said. “That private religious expression was doubly protected by the free exercise and free speech clauses.”
The school district claims it wasn’t trying to take away Kennedy’s right to prayer but instead trying to protect the religious freedom rights of students and their parents. The district says students felt pressured to pray with Kennedy in fear that they wouldn’t get as much playing time if they didn’t comply. If Kennedy were to win, the district claims the court would be disregarding its earlier precedents.
"To win, Mr. Kennedy would need this court to whittle Garcetti to nothing and toss Pickering aside and disregard students' rights and ignore the need to maintain control over school events,” said Katskee, the attorney for Bremerton who is with Americans United for Separation of Church and State. “Doing any of that on Kennedy's hypothetical facts would be ill-advised. To do all of it would be extraordinary.”
Some of the justices noted how far apart the two sides were just on the facts in the case.
“Is that the question of this case, whether the facts are my facts or your facts,” Justice Elena Kagan asked.
Justice Stephen Breyer echoed that point. “This may be a case about facts and not really much about law,” the Clinton appointee said.
Some of the justices were particularly interested in what the case could mean for its 1971 precedent in Lemon v. Kurtzman, which created a test for violating the Establishment Clause. Justice Brett Kavanaugh seemed to say the test didn’t exist anymore because it hadn’t been used in decades. Justice Neil Gorsuch seemed to back this thinking, while Breyer called for a more cautious approach.
“If you see Lemon, despite its imperfections, as an effort … to prevent the country from becoming more divisive,” Breyer said. “Certainly [its] an effort that remains valid. To prevent it from being more divisive there on the basis of religion — if that's reconsidered … how many cases will we be calling into question if that part of it is reconsidered?”
Faith leaders and members of Congress spoke outside the court before arguments to express concern over what a ruling in the case could mean for the separation of church and state.
“The foundational American principle of separation of church and state is the cornerstone of religious freedom,” said Ouida Brown, general counsel at the Christian Methodist Episcopal Church. “It ensures that the government can't tell us how to practice our faith or whether we have to practice anything at all.”
She continued: “It is unconstitutional for public school coaches to pressure students to pray with them. When Coach Kennedy did that, he violated his players' religious freedom. He also pressured them to pray in a distinctly Christian way. but Muslims, Jews, Hindus, Buddhists, and others don't pray that way, in fact, neither do all Christians.”
Representative Jamie Raskin, who filed an amicus brief in the case along with other members of Congress, said he didn’t think this was a tough case for the justices.
“I think it's an open-and-shut case,” Raskin said. “The problem is, of course, we've got a cultural war going on in the country. I hope that the Supreme Court justices will act like Supreme Court justices and follow the very clear precedent, which establishes that no government employee has the right essentially to take over the job and then violate clear First Amendment precedent.”
Kennedy previously lost bids for injunctive relief from a trial court, the court of appeals and the Supreme Court. A federal judge ruled that the district was within its rights to put Kennedy on leave, and the Ninth Circuit affirmed. The Supreme Court agreed in January to hear the case on the merits.
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