The Supreme Court heard arguments in a religious liberty case on Monday regarding a high school football coach who was fired for praying on the field after games.
The case surrounds high school football coach Joseph Kennedy and Bremerton School District in the state of Washington. Kennedy, a devout Christian who began working at Bremerton High School in 2008, was fired from his role as varsity assistant coach and as the junior varsity head coach after he refused to quit praying on the 50-yard line in full view of the public following games.
Kennedy asserted that the school district violated the Free Speech and Free Exercise Clauses of the First Amendment of the U.S. Constitution. The district also used the First Amendment to justify its argument, claiming that Kennedy’s prayers in view of the public and students following a school sanctioned event violate the Establishment Clause because his actions could be perceived as a district endorsement of religion. Ultimately, Kennedy asked the Court to decide whether a public school employee who “says a brief, quiet prayer by himself while at school and visible to students” is engaged in government speech that lacks First Amendment protections, and whether the Establishment clause “compels public schools to prohibit it.”
Monday’s arguments revolved heavily around whether Kennedy’s public prayer constituted government endorsement of religion and whether he could potentially coerce students into participating in his prayers because of his influential position at the school.
Kennedy’s attorney Paul Clement pointed out that the school district made no coercion claims in its case against Kennedy and only cited concerns about Establishment Clause violations as the basis of Kennedy’s firing.
“There’s no evidence of coercion in this record. But, worse still, my client has already waited six years to get his job back,” Clement said.
The court’s conservative majority seemed more sympathetic to Kennedy’s case, asking probing questions of both Clement and the school district’s attorney Richard Katskee and posing various hypothetical scenarios.
Justice Brett Kavanaugh questioned the nature of Kennedy’s actions to point to the fact that Kennedy’s prayers took place after games, not during games or in a locker room.
“This wasn’t, you know, ‘huddle up, team,’ you know, which is a common coach phrase,” Kavanaugh said. “That wasn’t this, right?”
Kavanaugh also posed a hypothetical to Katskee about a coach who makes the sign of the cross before a game and asked how the district would handle such an action from an employee.
“If the coach is doing it while not making himself the center of attention at the center of the field, it’s perfectly fine,” Katskee responded.
“I don’t know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game,” Kavanaugh said in reply.
Chief Justice John Roberts asked Katskee to strip away the drama between Kennedy and the school district and look at the bare bones of Kennedy’s actions.
“What if all that were off the table? It’s simply the coach going out to midfield, kneeling — taking a knee, and that’s it?” Roberts posed.
Justices Clarence Thomas and Samuel Alito posed hypotheticals as well — Thomas asked Katskee whether school officials would have disciplined Kennedy if he had knelt down during the national anthem to protest racism. Justice Alito likewise asked if school officials would be up in arms over overtly political speech from a public employee.
[What if] “when Coach Kennedy went out to the center of the field … all he did was to wave a Ukrainian flag. Would you have fired him?” Alito asked.
Overall, Katskee argued that Kennedy was praying as a coach and not as a private citizen. If he were engaging in private speech, Katskee argued that the coach’s rights “would still have to be balanced against the district’s interest in controlling its events and messages, protecting the religious freedom rights of the students and their parents, and managing the workplace.”
Clement argued that Kennedy’s midfield prayer as “private religious expression was doubly protected by the Free Exercise and Free Speech Clauses.”
“When the School District fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it — it ignored a veritable wall of this Court’s precedents that make clear that a school does not endorse private religious speech just because it fails to censure it,” he argued.
“As much as the District would like to change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices,” he continued. “And the record is equally clear that the District’s sole reason for its actions was out of endorsement concerns, not concerns for band members’ safety or how many players joined the coach in the prayer.”
The United States Court of Appeals for the Ninth Circuit — widely considered the most liberal federal appeals court — previously ruled against Kennedy. In what could be described as an Orwellian decision, the Ninth Circuit said Kennedy’s prayers were not protected speech or protected exercise of religion. The court instead argued that the school district would have violated the U.S. Constitution via the Establishment Clause if it had not fired Kennedy because he appeared to endorse religion as a public employee.
Then, in 2018, First Liberty filed a petition for writ of certiorari with the U.S. Supreme Court to reverse the Ninth Circuit’s decision. While the Supreme Court declined to hear the case in 2019, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh said in a statement that the Ninth Circuit’s reasoning was “troubling” and that the Court would likely take the case if lower courts could first answer whether Kennedy had been fired because of his religion.
Both the district court and the Ninth Circuit again sided with the school district in 2021, though the Ninth Circuit confirmed Kennedy had been fired because he refused to stop praying on the field after games. Subsequently, Kennedy refiled at the Supreme Court, and this time, the justices agreed to hear the case.
The justices further debated what the Supreme Court’s standard should be for determining whether the Establishment Clause has been violated. Justices Neil Gorsuch and Kavanaugh specifically criticized the Lemon Test created in 1971 and the updated Coercion Test, calling them outdated and largely disused.
Both the Lemon Test and the subsequent Coercion Test are used to check whether government action is coercing religious conduct. The Coercion Test was notably created and used in the 1990s by then-Justice Anthony Kennedy, who said public school students were “coerced to participate in state-sponsored religious events when public schools invited clergy to deliver invocations and benedictions at events such as graduation,” according to Middle Tennessee State University.
Katskee argued that the Court should remand the case to the Ninth Circuit for the application of the Lemon Test or the Coercion Test. Clement argued, in light of the fact that the district never explicitly said it was worried about coercion, that the Supreme Court should potentially do away with the Lemon Test altogether.
“I think the fact that school districts continue to make this mistake even though you have said over and over and over again that tolerating private religious speech is not endorsement is an excellent, excellent reason to be as emphatic as possible in overruling endorsement cases. If it requires formally overruling Lemon and the endorsement tests that come from that, I think that would be very helpful,” he said.
The justices are expected to make a decision on the case by the end of June.
The case is Kennedy v. Bremerton School District, No. 21-418 in the Supreme Court of the United States.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.
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