Coach prayer on school field OK’d by court; freedom to express religion cited in 6-3 majority opinion

FILE - Joe Kennedy, a former assistant football coach at Bremerton High School in Bremerton, Wash., poses for a photo March 9, 2022, at the school's football field. (AP/Ted S. Warren, File)
FILE - Joe Kennedy, a former assistant football coach at Bremerton High School in Bremerton, Wash., poses for a photo March 9, 2022, at the school's football field. (AP/Ted S. Warren, File)

WASHINGTON -- The Supreme Court ruled Monday that a high school football coach had a constitutional right to pray at the 50-yard line after his team's games.

The vote was 6-3, with the court's three liberal members in dissent. It was the latest in a long line of decisions expanding the place of religion in public life, particularly in education.

Justice Neil Gorsuch, writing for the majority, said the prayers of Joseph Kennedy, an assistant football coach at Bremerton High School in Washington state, were protected by the First Amendment.

"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," he wrote. "Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance."

In dissent, Justice Sonia Sotomayor wrote that the majority had gone astray.

"Today's decision," she wrote, "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."

"In doing so," she wrote, "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."

Kennedy said he was delighted by the decision.

The case, Kennedy v. Bremerton School District, No. 21-418, pitted the rights of government workers to free speech and the free exercise of their faith against the Constitution's prohibition of government endorsement of religion and the ability of public employers to regulate speech in the workplace. The decision was in tension with decades of Supreme Court precedents that forbade pressuring students to participate in religious activities.

For eight years, Kennedy routinely offered prayers after games, with students often joining him. He also led and participated in prayers in the locker room, a practice he later abandoned and did not defend in the Supreme Court.

In 2015, after an opposing coach told the principal at Kennedy's school that he thought it was "pretty cool" that Kennedy was allowed to pray on the field, the school board instructed Kennedy not to pray if it interfered with his duties or involved students. The two sides disagreed about whether Kennedy complied.

A school official recommended that the coach's contract not be renewed for the 2016 season, and Kennedy did not reapply for the position.

The majority and dissenting opinions offered starkly different accounts of what had happened in Kennedy's final months.

Gorsuch wrote that Kennedy had sought only to offer a brief, silent and solitary prayer. Sotomayor responded that the public nature of his prayers and stature as a leader meant that students felt forced to participate, regardless of their religion and whether they wanted to.

Gorsuch wrote that the coach, at least after the games at issue in the case, "offered his prayers quietly while his students were otherwise occupied."

Sotomayor gave a different account of the facts, taking account of a longer time period.

"Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer," she wrote. The dissent included photographs showing Kennedy kneeling with players and others.

Gorsuch wrote that Kennedy was not speaking for the school when he prayed.

"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," Gorsuch wrote.

Instead, he wrote, Kennedy merely took a moment to pray while others checked their text messages or greeted friends. Not everything school employees do during work hours is official conduct, Gorsuch wrote.

If it were, he said, "a school could fire a Muslim teacher for wearing a head scarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria."

LEMON TEST

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett joined all of Gorsuch's majority opinion. Justice Brett Kavanaugh joined most of it.

In dissent, Sotomayor said Kennedy effectively coerced students into praying with him.

"Students look up to their teachers and coaches as role models and seek their approval," she wrote. "Students also depend on this approval for tangible benefits. Players recognize that gaining the coach's approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting."

Gorsuch responded that he rejected "the view that the only acceptable government role models for students are those who eschew any visible religious expression."

In the process of ruling for Kennedy, the majority disavowed a major precedent on the First Amendment's establishment clause, Lemon v. Kurtzman.

That ruling, in 1971, set out the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.

In Gorsuch's account, the Lemon test had already been discarded. But Sotomayor wrote that the majority had just now overruled it.

She acknowledged that the test had been subject to frequent criticism by various members of the court.

"The court now goes much further," she wrote, "overruling Lemon entirely and in all contexts."

Justices Stephen Breyer and Elena Kagan joined Sotomayor's dissent.

The Roberts-led court has recently been protective of religious rights, and advocates said the case was another opportunity to transform decades of Supreme Court jurisprudence that started 60 years ago with the admonition that government cannot organize and promote prayer in public schools.

As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment's prohibition of government establishment of religion.

"The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship," Justice John Stevens wrote for the majority in that case.

Gorsuch wrote that those precedents did not apply to Kennedy's conduct.

"The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience," he wrote. "Students were not required or expected to participate."

Gorsuch said the message of the decision in favor of Kennedy was straightforward.

"The Constitution and the best of our traditions," he wrote, "counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike."

DELIGHT, DISMAY

Kennedy was represented by First Liberty Institute, a conservative religious group that has brought other religious rights challenges to the Supreme Court.

Paul Clement, who argued Kennedy's case at the Supreme Court, said, "After seven long years, Coach Kennedy can finally return to the place he belongs -- coaching football and quietly praying by himself after the game."

The group also offered a statement from Kennedy: "This is just so awesome. All I've ever wanted was to be back on the field with my guys. ... I thank God for answering our prayers and sustaining my family through this long battle."

Rachel Laser, president of Americans United for Separation of Church and State, which represented the school board in the case, lamented what she called the latest in a series of mounting setbacks.

"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," she said in a statement.

Kennedy and his wife retired, sold their house and moved to Pensacola, Fla. The school district said that should make the case moot, since it is unlikely Kennedy would move back to Bremerton for a job that provides an annual stipend of just over $5,000.

But Kennedy told the Supreme Court in a sworn statement that if he were allowed to return to his old job, "I can do so within 24 hours of reinstatement."

Kennedy v. Bremerton School District is the fourth case this term in which the court has considered religious rights.

Earlier, it decided a Texas death row inmate can be accompanied by a spiritual adviser who will play an active role in praying and comforting him at the time of his execution. It ruled for parents in Maine who want to use public tuition grants to send their children to religious schools.

The Supreme Court also agreed with a Christian group that it was discrimination for Boston to reject a Christian group's request to fly its flag at city hall for fear it would appear to be an endorsement of religion, if other groups are given the privilege.

Information for this article was contributed by Adam Liptak of The New York Times and by Robert Barnes of The Washington Post.


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