Supreme Court coach prayer case could open door to prayer in public schools

HUNT VALLEY, Md. (TND) — A conservative supermajority in the Supreme Court and a prayer on the 50-yard line of a high school football field could fundamentally change the way religious exercise is treated in public schools.

The story centers around Joseph Kennedy, a former assistant high school football coach at Bremerton High School in Washington. He often went out to the 50-yard line after his team’s games to take a knee, say a prayer and thank God. He also said prayers with students in the locker room. But it wasn’t until an opposing coach told the principal of Bremerton after a game in 2015 it was “pretty cool” Kennedy was allowed to pray on the field that the school district told Kennedy to cut it out.

So, Kennedy quit praying in the locker rooms, and for one game, waited until all the crowds had left to pray by himself at the 50-yard line after the game. But he said in an interview with NPR it didn’t feel right to do it alone.

The coach then decided to lawyer up and, ahead of the big homecoming game, his attorneys wrote to the school that Kennedy has a constitutional right to pray on the 50-yard line after the game, and students should be allowed to join him.

Kennedy publicized the tension between the district and his prayers, which led to a homecoming game with double the usual crowd and several TV stations showing up to document the event. Surrounded by a crowd mostly made up of players and TV cameras, the coach knelt to pray on the field after the game while a state representative placed his hand on the coach’s shoulder in support.

Two weeks later, Kennedy was put on paid administrative leave for failing to listen to school officials, and the coach did not apply for a new contract for the following season.

Kennedy was respected and admired by many in the community for his beliefs. Yet, his background proves to be dark and difficult. In an interview with the New York Times, Kennedy shared he was adopted at birth by parents who were unable to have biological children at the time. However, they were later able to have children, so Kennedy and his adopted sister were “thrown by the wayside.”

He was placed into foster care when he was 8 years old and said he was a troublemaker who jumped from foster home to foster home. At age 15, he was living on his own, couch surfing and sleeping in his car. Kennedy barely graduated high school but went on to serve two decades in the Marines. He returned to Bremerton in 2006 and began working at the shipyard. He described being in a complicated marriage and said he turned to his faith at a low point.

“I went up to the altar and just lost it, right? Bawling like a baby and said, ‘God, I need help. I can’t do this. You help me with this, I’m in forever.’ Just totally surrendered myself to him,” Kennedy said.

A couple of years later, he was offered the assistant football coaching position at Bremerton High School. As he was considering the offer, he watched a Christian football movie called “Facing the Giants.” Kennedy said he was inspired by the coach in the movie, who thanked God after each game, win or lose. Thus, the veteran took the job and started to emulate the main character by praying after the games, but only by himself.

“A couple of the kids came over months later. They said, ‘Hey, Coach, what are you doing out there?’ And I said, ‘Just thanking God for what he did.’ And they were like, ‘Well, can we join you?’ And I said, ‘Well, yeah, I mean, it’s America. It’s a free country. You do whatever you want to do,’” Kennedy told the Times.

The coach maintains he never required a student to pray with him, and he never favorited one player over another for praying with him. His lawyers say the only issue at hand, in this case, is his post-game prayers on the field, and not his earlier prayers in the locker room. But a lawyer for the school said, “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.”

During the Supreme Court justices’ oral arguments, Justice Neil Gorsuch said, “one of the difficulties of this case is getting one’s hands around the district’s rationale.”

He was referencing the tension between the free exercise clause, which protects the religious freedom of people like Kennedy in this case, and the establishment clause, which requires separation of church and state. Nelson Tebbe, a law professor at Cornell Law School, said over time, the Supreme Court has been narrowing the establishment clause so more religion is allowed in public life.

“It used to be that the Supreme Court had something called the endorsement test, which said that if the government appears to be endorsing a particular religion, that’s unconstitutional,” Tebbe said. “But more recently, the court has moved to more of a coercion test...So, it’s OK for the government to endorse religion as long as it’s not coercing anyone.”

This shift has allowed for certain scenarios, like the government saying, “In God we trust,” or for the court to open its sessions with a sectarian invocation.

The district initially argued it could stop Kennedy from praying on the grounds that it was endorsing religion, but then moved to the fear of coercion, and Kennedy’s lawyers challenged that shift as a rationalization after the fact. Tebbe said it’s likely a tactic on their part, but he sees it as a red herring because the school can still prohibit the coach from praying even if the establishment clause doesn’t require it.

The justices also struggled to hash out the facts of the case. Douglas Laycock, a professor of religious studies at the University of Virginia School of Law said Kennedy gave the court a version of the facts in which he was off by himself praying and can’t help it if a few students wanted to join.

“It just didn’t happen that way,” Laycock said. “Kids were going out there with him all the time, the whole team. He’s kneeling around them, he’s raising helmets to show where the center is and to bring people out there. And, you know, after the whole dispute erupted, there were several weeks when he prayed quietly by himself and the school didn’t object. If he was content with that, this case wouldn’t be at the Supreme Court. He was not content with that. He wants to be leading students in prayer. He said he wants to help these kids be better adults and leading them in prayer is the way to do it. Well, a lot of people believe that, but we get to make our own individual and family choices about religion.”

The Marine veteran said after praying alone once all the crowds and players had left, “I fought and defended the Constitution and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody — that’s just not America.”

Another layer of the case justices toiled over is the question of when a teacher or coach sheds their First Amendment protections. Both Tebbe and Laycock co-authored amicus briefs in favor of the school district in this case, and they both argue in the briefs Kennedy was praying on duty.

“The school has an obligation to protect the religious liberty of the players from people in positions of authority, and when he’s acting as a coach, he’s a representative of the state, of the government,” Laycock said. “His theory is he goes back and forth between being the coach and just a private citizen, kind of any time he wants.”

Laycock said when he’s a private citizen, his speech is protected, but not when he’s coaching. Tebbe agreed this is a hard line to draw. The coach’s lawyers argue Kennedy was conducting a “private” moment of prayer, but Tebbe said that’s not necessarily accurate.

“He was on the job, right? This was right after a game, and a moment where people are paying attention. Coaches often use that time to say something important to the team,” Tebbe said. “He has a duty that he recognizes to make sure the players get off the field after that happens, and then also to debrief the game in the locker room afterwards. So, it’s during the period of time which he’s kind of on duty, and it’s in a physical space in which he’s on duty.”

Justice Brett Kavanaugh is a basketball coach himself, and in oral arguments, expressed concern for the coercion aspect of the case.

“What about the player who thinks, ‘If I don’t participate in this, I won’t start next week?’ I don’t know how to deal with that, frankly,” Kavanaugh said, adding “every player’s trying to get on the good side of the coach.”

This is the top concern of the two law professors, as well. Tebbe said the worry is twofold: “First, that students that don’t share his convictions would be kind of relegated to a subordinate standing in the community because he’s a school official embracing one faith above others. And then second, that they would be coerced, because the football coach, even if he’s just an assistant coach, has significant power over them — and over whether they start, whether they play at all, how they get recommended into colleges.”

Laycock added the religious rights of the students must be considered just as much as Kennedy’s rights, and just because they may not say they feel coerced doesn’t mean they’re not being coerced.

“You cannot expect football players to complain about their coach. It just doesn’t happen,” Laycock said. “The coach is trying to present this as religion against the bureaucracy or religion against the secular world. There’s freedom of religion issues on both sides of this case, and the students are the weaker set of parties here and we’ve got to protect them.”

Kennedy’s lawyers hope to make the case the school district is being hostile toward his religion, referencing a letter from Bremerton’s superintendent that said he may not “engage in demonstrative religious activity” that is “readily observable” to students and the public. One of his lawyers said it makes it seem like Kennedy’s praying is “something almost shameful that you have to go do in a private booth.”

While both Tebbe and Laycock filed amicus briefs in favor of the school district, Tebbe anticipates the Supreme Court’s 6-3 conservative supermajority will back the coach. Laycock said the conservatives on the bench are more concerned about free exercise, but “clearly they were troubled by it.”

“All had at least one question that suggested they were looking for a way to decide this very narrowly, so it didn’t expand the ways in which students can be pressured with respect to their religious commitments,” Laycock said. “I think they would prefer to rule for the coach, and maybe they will, but I think they’re looking for a way to do it very narrowly. And if they can’t find that way, they may still rule for the school. I don’t think this case is hopeless.”

But if the high court does rule in favor of Kennedy and his religious rights, the law professors warned it will be a backward move from the separation of church and state. They predict more public displays of faith at sporting events and more teachers who could try to explain their faith to students and get them to pray with them. Prayer in public schools has been outlawed since 1962.

“The court decided a long time ago schools can’t create an atmosphere that pressures kids to join in religious observances, and I think that was the right decision,” Laycock said. “This case threatens very seriously to undermine that.”

Tebbe added, “There’s an equality concern about the standing of students who don’t subscribe to his beliefs and also a liberty concern about whether they’d be coerced or pressured into joining him in prayer or subscribing to his beliefs...For both reasons of equality and also reasons of liberty, I am concerned about a decision that starts to allow religion to become part of the public school culture.”

A decision on the case is likely to come by the end of June, before the Supreme Court’s summer recess.