What just happened?
On Monday the Supreme Court heard oral arguments in the case of a Washington state high school football coach who lost his job because he prayed silently on the 50-yard line after a football game.
What is the case about?
According to court filings, the superintendent of the Bremerton School District wrote to assistant coach Joseph Kennedy in 2015 saying that the school district found his praying on the field after a recent football game to be unacceptable. The letter gave two reasons.
First, that during the time he was praying on the field after the game, Kennedy was neglecting his responsibility to supervise what his players were doing. The second reason was that his conduct would lead a reasonable observer to think the district was endorsing religion because he’d prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”
After two subsequent games, Kennedy again kneeled on the field and prayed, and the superintendent then wrote to inform him that he was being placed on leave and was forbidden to participate in any capacity in the school football program. The superintendent’s letter reiterated the two reasons given in the previous letter.
A federal court found the firing to be justified, as did the Ninth Circuit Court of Appeals.
The case was appealed to the Supreme Court in 2019, but the justices said it was unclear whether Kennedy had been fired for neglect of duties or because he was praying. Still, Justice Alito said, “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” The school district later did agree that the coach had lost his job solely because of his religious expression, but the Ninth Circuit still upheld the termination.
The Ninth Circuit ruling deemed that virtually all speech by public school employees was government speech, and thus lacked any First Amendment protection. The determination implied that even if Kennedy’s prayer was private expression protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless required its suppression. This determination was what Justice Alito had clearly said was as misreading of legal precedent, which is why they Court agreed in 2021 to hear the case.
What are the legal questions being considered in this case?
The questions the Court is being asked to consider are
1. 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 any First Amendment protection; and
2. whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.
What was the reaction of the justices during the oral arguments?
When the court was asked to consider the case in 2019, Chief Justice John Roberts joined liberal Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg in declining to hear the case, while Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh expressed a willingness to hear Kennedy’s arguments. Since that time, Justice Amy Coney Barrett replaced Ginsburg (Breyer will still hear the case since it will come before his retirement).
Observers of the Court who watched the oral arguments were generally in agreement that the justices seem to align in the same way they did in 2019. This would leave Amy Coney Barrett as the swing vote in deciding the case.
Why is this case important?
Almost everyone involved with the case agrees that the coach has a right to pray as an individual and not as a representative of the public school. The question is whether his being seen praying on the field would coerce students into a religious practice. Would students feel they wouldn’t get playing time if they didn’t join the coach in praying, as one atheist student claimed?
Public school students should not feel coerced into a religious practice. But as Lori Windham, a religious liberty attorney at Becket Law says, that’s not the only problem. “Religious liberty isn’t a right to be weird in the corner. It’s a right to bring the deepest, most important truths to public,” says Windham. “The district thinks it’s just fine to fire that coach for praying. That too, is divisive. What message does that send to students of faith?”
Chelsea Patterson Sobolik of the Ethics and Religious Liberty Commission makes a similar point:
As Christians, our faith shapes the totality of how we live and the structure of our lives, and the government must allow people of faith to live out their convictions according to their religious beliefs. A teacher, administrator, student, or coach does not shed their religious beliefs simply because they enter the schoolhouse door, or as in this case, the field of play. Kennedy was living out his faith in public, and he should have the ability to do so without being punished.
When will the case be decided?
A ruling in the case will likely be decided before the end of June.
The Gospel Coalition