On Monday, the U.S. Supreme Court heard oral arguments for Kennedy v. Bremerton School District. The case centers on whether a public high school football coach has a First Amendment right to pray with his players after games. Several of the justices seemed supportive of Joseph Kennedy, who was an assistant football coach at Bremerton (Wash.) High School between 2008 and 2015.
Kennedy ran afoul of school district administrators when his postgame activities included kneeling at the 50-yard line and praying for about 15 to 30 seconds. Some of Kennedy’s players joined him. Kennedy often referenced his Christian faith and expressed gratitude for player safety and sportsmanship. The administrators objected, reasoning his prayer could suggest the district had endorsed his views. Attorneys for the district also contend players might have felt coerced to join.
Kennedy left his job, sued and lost. A federal district court and the U.S. Court of Appeals for the Ninth Circuit reasoned that the Establishment Clause, which is part of the First Amendment, barred Kennedy, as a representative of a public school, from endorsing or sponsoring a religion.
On Monday, several members of the Supreme Court seemed troubled by those rulings and their depiction of First Amendment rights.
Attorney Paul Clement, who argued on behalf of the NFL in Tom Brady’s Deflategate case, advocated for Kennedy. As Clement saw it, Kennedy had engaged in a form of expression “entirely of his own” through his “brief prayer of thanks.” Clement further maintained that “when the school district fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment,” it also “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.”
Several of the justices focused on whether the players might have felt implicitly pressured. Their core question: Did the players fear that if they didn’t pray, Kennedy would hold a grudge and sideline them on the bench?
“Every player’s trying to get on the good side of the coach,” Justice Brett Kavanaugh observed. “And every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera.”
Clement agreed but argued that concern is not limited to religion and can also be mitigated.
“If the coach is always wearing a Packers jersey,” Clement suggested, there’s an “incentive” for “the players to follow on” and wear Packers attire as well. Clement said the school could adopt a policy that makes clear playing time can’t “turn” on whether players adhere to coaches’ expressions or routines.
Kavanagh, who has coached girls’ basketball, didn’t seem entirely convinced.
“I guess,” he offered, “the problem at the heart of is it you’re not going to know because the coach is probably not going to say anything, like the reason I’m starting you is that you were–you knelt at the 50-yard line. You’re never going to know, and that–that leads to the suspicions by parents, I think.” But Kavanaugh conceded there is no real way to fully remedy those suspicions.
Justice Amy Coney Barrett asked Clement about a hypothetical in which Kennedy hosts Christian youth group meetings at his home. “You know,” she imagined, “a lot of the players come because they think they’re going to get more playing time if they” attend. “I take it your position,” Barrett asked, “would be that that’s entirely private speech, and even if there’s a coercive component to it, that the school can have nothing to say?”
Clement responded that if the school had concerns, it could forbid teachers and coaches from hosting events at their houses. But he emphasized such a policy must be “neutral” and not targeted at specific individuals or groups.
Justice Elena Kagan sought clarity from Clement on when a coach crosses the line. “You’re not contesting,” she asked, “the right of the school district to discipline Coach Kennedy if he had been praying during the official, if you will, postgame talk?” When Clement essentially concurred, Kagan pivoted to say Kennedy was asking “a lot of a school board” to figure out when the Establishment Clause applies and when it doesn’t. She said the focus should be on risk of “coercion on students” and measures to prevent students from feeling “that they have to join religious activities that they do not wish to join [and] that their parents do not wish them to join.”
Attorney Richard Katskee argued on behalf of Bremerton School District. He attempted to distinguish Kennedy’s postgame prayer from more private settings in the workplace.
“No one doubts,” Katskee insisted, “that public school employees can have quiet prayers by themselves at work even if students can see.” Katskee maintained that Kennedy went a step further. “He insisted on audible prayers at the 50-yard line with students.”
Justice Samuel Alito seemed particularly unpersuaded by Katskee’s reasoning. Alito emphasized that the relevant legal question is not a coach telling their players “you better pray . . . and agree with my religious beliefs or you’re not going to get a starting position on the team.” It is instead, he surmised, the circumstances in which a coach can engage in a form of expression.
“Suppose,” Alito asked Katskee, “the coach has got all sorts of political signs on the front lawn of the coach’s house. Can they fire him for that reason?” Katskee said no since “no one would view that as government speech.” However, Alito wondered aloud, “No student could think that if—boy, if I don’t agree with—if I don’t say things in class, write things in my papers, that agree with the coach or if I—the teacher or I say something that’s contrary to what this teacher feels really strongly, that’s going to hurt me?”
The Court’s ruling on the case is expected this summer.