Posted on 04/25/22
| News Source: Washington Post
The Supreme Court’s conservative justices seemed sympathetic Monday to a former high school football coach who lost his job after leading postgame prayers at midfield, but the path to a decision is complicated by both the coach’s actions and the school district’s purported reason for disciplining him.
Joseph A. Kennedy’s lawyer said the coach was asking only for a private moment to take a knee and express gratitude to God on the gridiron after a game. But lawyer Paul D. Clement acknowledged that Kennedy’s actions at Bremerton High School near Seattle had at times gone far beyond that, including leading players and others in prayer.
And Richard B. Katskee, representing the Bremerton school district, said officials had an obligation to protect students from being coerced into religious activity they did not want. But justices said that might be rationalization, because the officials’ complaint to Kennedy was that his actions would be seen as government speech, violating constitutional commands against government endorsement of religion.
“This may be a case about facts and not really much about law,” said Justice Stephen G. Breyer, beginning his last week of oral arguments before his scheduled retirement at the end of the term.
In general, Breyer and the court’s other two liberals seemed to think Bremerton officials had tried to accommodate Kennedy’s request to pray silently after games, but that what he really wanted was a public platform to involve players and the greater community.
Questions from the court’s conservatives indicated they believe the school district has misread the court’s precedents regarding government endorsement of religion, and perhaps were hostile to such demonstrations.
Justice Clarence Thomas questioned whether Kennedy would have been disciplined if he had taken a knee during the national anthem to protest racism. Justice Samuel A. Alito Jr. questioned Katskee, legal director at Americans United for the Separation of Church and State, about other political activism.
Suppose “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.
Katskee said the school district could discipline a coach for such actions because it “doesn’t want its event taken over for political speech.”
“Where is the school district rule that says that?” Alito demanded.
The case brings complicated questions about the ability of public employees to live out their faith and the government’s competing responsibility to protect schoolchildren from coercion and to remain neutral on the subject of religion. It calls for examining the interplay between the First Amendment’s establishment clause, which forbids government endorsement of religion, and its free speech and free exercise clauses, which prohibits government restraints on the private observance of religion.
The U.S. Court of Appeals for the 9th Circuit sided with the school district. The judges cited Supreme Court precedent that public employees give up some of their First Amendment rights, because their speech can be construed as being that of the government. And the appeals court said that even if Kennedy’s prayers could be seen as private speech, the district could take action to avoid the appearance of an establishment clause violation.
Clement said that was a mistake.
“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, adding “when the school district fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but 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.”
Clement acknowledged Kennedy had at times gone much further than that: leading locker room prayers, holding up the helmets of the two opposing teams at midfield and audibly praying, and inviting supporters and legislators onto the field. But he said the school board was not allowing the simple act of taking a knee, and demanding the prayers take place away from players.
Justice Elena Kagan indicated there was good reason for school officials to be concerned. She said it would not matter to a student if he thought a request to join in prayer was the official view of the school district, or simply the personal belief of a coach who controls playing time, or a math teacher who runs the class.
“That seems to me to be coercive of 16-year-olds regardless if they know that it’s him and not the school district,” she said. “He’s the one who’s going to give me an A or not.”
Katskee said that was what the school district was trying to avoid.
“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” he told the court. “But that wasn’t good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people.”
Katskee said Kennedy was functioning as a coach, not a private citizen. But even if it were private speech, he said, under Supreme Court precedent “Kennedy’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.”
Justice Brett Kavanaugh questioned that view of Kennedy’s actions. The events took place not in a locker room or during a game, but afterward, when players were dispersing. “This wasn’t, you know, ‘huddle up, team,’ you know, which is a common coach phrase,” Kavanaugh said. “That wasn’t this, right?”
And Chief Justice John G. Roberts Jr. tried to pull the focus back, away from disagreements between Kennedy and the school officials. “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 asked.
Katskee said that was the case for years, and the school district had not objected to – or even really noticed – Kennedy’s actions. But he said the school still must worry about student-athletes who would feel coerced to join.
Justices on both sides had plenty of hypotheticals, about coercion and about the rights of teachers and coaches. Praying or reading the Bible allowed before the bell rings? Saying a blessing? Holding religious youth meetings while a teacher is off duty?
Kavanaugh asked Katskee about a coach who makes the sign of the cross before a game.
“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 replied.
“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.
And Clement said that would not capture “real world examples anyway,” mentioning soccer and football players who made religious demonstrations on the field part of their routine.
“Right after Mohamed Salah scores the goal, he is of course the center of attention and he engages in a religious exercise,” Clement said. “Right after Tim Tebow scores the touchdown, he’s absolutely the center of attention. Yet, he engages in religious exercise. It’s private, it’s permissible, and the government can’t stop it.”
Alito, Thomas, Kavanaugh and Justice Neil Gorsuch sympathized with Kennedy a couple of years ago when the case first reached the Supreme Court, but it was deemed premature for consideration. In its current form, it has divided constitutional scholars, red states and blue states, and more friend-of-the-court briefs than any case at the Supreme Court this term, except for the controversies over abortion and gun control.
It is also the fourth case this term the court has considered religious rights. Earlier, it decided a Texas death row inmate must be accompanied by a spiritual adviser who will play an active role in praying and comforting him at the time of his execution. It has yet to rule in a case from Maine that make it easier for parents to use public funds to send their children to religious schools. And it heard a complaint from a Christian group that it was discrimination for Boston to disallow its flag to fly in a city plaza, when other organizations were allowed.
Monday’s case is Kennedy v. Bremerton School District.