A majority of Supreme Court justices appeared sympathetic to a fired former high school coach who held post-game prayers on the football field. File Photo by Kevin Dietsch/UPI | License Photo
April 25 (UPI) -- A majority of Supreme Court justices appeared sympathetic Monday to a former Washington state high school football coach who was put on leave from his job years ago because he made a routine of praying on the field after games.
Attorneys involved in the case presented their arguments before the high court bench.
The court's conservative justices, who hold a 6-3 majority, suggested that they agreed with former coach Joseph Kennedy, who argues his First Amendment rights were violated when the Bremerton, Wash., school district put him on leave in 2015 for leading on-field prayers at the end of each game.
Opponents, however, say Kennedy violated the First Amendment's establish clause, which forbids government endorsement of religion, by praying on the field while as performing his official work duties.
During the hearing, conservative Justice Samuel Alito told the school district's attorney that Kennedy was effectively dismissed for "unlawful" reasons and asked hypothetically if he would have been disciplined for making public political statements, such as taking a knee to protest racial injustice.
Justice Neil Gorsuch suggested that the district may have "misunderstood" Supreme Court precedents on the establishment clause, while Justice Brett Kavanaugh likewise indicated the court could find in favor of Kennedy without contradicting earlier rulings upholding the right of schools to limit the practice of religion.
Chief Justice John Roberts seemed to question whether Kennedy's actions on the field amounted to the practicing of religion. He asked, "What if the activity on the field did not consist of kneeling down briefly, but something more extensive?"
Prayer on field
Kennedy began quietly praying on the field in 2008 after watching the Christian sports film Facing the Giants. Eventually, other players and members of the opposing team decided to join in as he began to deliver motivational speeches that referenced religion.
"It seems so simple to me: It's a guy taking a knee by himself on the 50-yard-line, which to me doesn't seem like it needs a rocket scientist or a Supreme Court justice to figure out," Kennedy told CBS News. "I didn't want to cause any waves, and the thing I wanted to do was coach football and thank God after the game."
The Bremerton School District raised opposition to the practice seven years later when an opposing team's coach told Bremerton High's principal that Kennedy asked his players to join him for a prayer after a game in 2015 and that he "thought it was pretty cool" the district would allow him to do that, according to court records.
The brief explains that the prayers sometimes posed a risk at games.
"Spectators jumped over the fence to reach the field and people tripped over cables and fell," the district wrote in its brief. "School band members were knocked over."
Kennedy was approached by an athletic director after the game who expressed disapproval about the prayer, at which point Kennedy posted on Facebook, "I think I just might have been fired for praying."
The post and the controversy drew "thousands of emails, letters and phone calls from around the country," the documents said.
Bremerton School District Superintendent Aaron Leavell ultimately sent a letter to Kennedy advising him that he could continue delivering speeches, but that "they must remain entirely secular in nature."
The coach temporarily complied, but informed the school a month later that he would resume praying at the 50-yard-line and asked for a religious accommodation under Title VII of the Civil Rights Act, which prohibits religious discrimination. His lawyers said Kennedy was "engaged in private religious expression upon which the state may not infringe."
Later, after the homecoming game, members of the public and a state legislator joined Kennedy, his players and members of the opposing team on the field for the post-game prayer. Kennedy was ultimately suspended without pay and received his first negative evaluation.
During the suspension, Kennedy's contract expired and he didn't apply to return. Instead, he filed the lawsuit and ultimately moved to Florida with his wife to care for her father. But in a sworn statement to the Supreme Court, he said that if he were allowed to return to his old job coaching the team, he could "do so within 24 hours."
Kennedy's legal journey
U.S. District Judge Ronald Leighton ruled against Kennedy, stating that "while public schools do not have unfettered discretion to restrict an employee's religious speech, they do have the ability to prevent a coach from praying at the center of the football field immediately after games."
Kennedy appealed the ruling to the 9th U.S. Circuit Court of Appeals, where it was upheld by a slim majority in favor of the school district. That court cited a Supreme Court precedent limiting the speech rights of on-duty public employees.
A group of 24 Republican U.S. senators and 32 representatives issued a brief condemning the appellate court's ruling.
"The 9th Circuit's reasoning weaponizes the establishment clause, concluding that it requires a school to root out any religious expression by its employees -- even to fire teachers, coaches and staff who will not leave their faith at home," the brief states. "If left uncorrected, this ruling threatens religious liberty ... for all public employees."
In 2019, Kennedy turned to the U.S. Supreme Court to overturn the ruling. Initially, the high court declined -- but Alito issued a statement with conservative Justices Clarence Thomas, Gorsuch and Kavanaugh and warned that the 9th Circuit's "understanding of the free speech rights of public school teachers is troubling and may justify review in the future."
Kennedy was handed a series of losses in lower courts following additional proceedings and a three-judge panel on the 9th Circuit ruled in March 2021 that the district's efforts to prevent him from coaching did not violate his constitutional rights, as he was acting as a government employee during his postgame speeches.
After the 9th Circuit declined to rehear the case, Kennedy again appealed to the Supreme Court. This time, it agreed to take up the appeal.
Supreme Court case
Lawyers for the school district argued in filings with the Supreme Court that it acted within its authority to regulate Kennedy's "very public speech" and that its interest in protecting students from religious coercion and preventing employees from "commandeering government events" holds greater weight than Kennedy's interest in praying with students.
A group of former professional football players and collegiate athletes supporting the school district warned in the filing that the relationship between a coach and a high school athlete is "highly susceptible to being coercive."
In the 9th Circuit proceeding, the school's principal testified that at least one parent complained that his son "felt compelled to participate" in the postgame prayer out of fear of losing playing time.
The district also accused Kennedy of painting the situation as a "breathless tale of authoritarian government forbidding private religious expression" that relies on "creative remodeling of both facts and the law." It said it only intervened when it determined that Kennedy's postgame prayers became demonstrations of faith that reflected on the district.
"Public school coaches can and do help students 'be better people,' but spiritual guidance should come from students' families and houses of worship, not the government," the district argued in its brief.
Kennedy's lawyers argued in their brief to the Supreme Court that the 9th Circuit's reasoning "is incompatible with this court's precedents and the traditions of religious liberty they embody."
"Teachers and coaches remain individuals with First Amendment rights on school premises, and the suspension of the individual religious expression of teachers and coaches is not permitted, let alone required, by the First Amendment," it states.
A friend of the court brief from Minnesota Vikings quarterback Kirk Cousins, Chicago Bears quarterback Nick Foles, former NFL quarterback Drew Stanton and others supports Kennedy and cites the practice of kneeling on the field during the national anthem to protest racial injustice.
"That practice, like Kennedy's prayers, is controversial -- courageous to some and offensive to others," they wrote. "But if Joe Kennedy had taken a knee to protest racial injustice, the district almost certainly would not have argued that his speech was somehow the state's. Rather there would have been no question that it was protected private speech."