The Supreme Court on Monday seemed inclined to rule for a Washington state high school football coach who lost his job after he refused to stop praying on the field immediately after games.
Joseph Kennedy said the school district violated his religious freedom by telling him he couldn’t pray so publicly after the games, but the district said it was trying to avoid the appearance that the school was endorsing a religious point of view.
The case presented an important test of the current court’s notion of the separation between church and state. During nearly two hours of courtroom argument, the conservative majority seemed prepared to rule that the coach was expressing his own private religious views and was not speaking for the school district.
“The government doesn’t endorse all private speech just because it takes place on school grounds,” Kennedy’s lawyer, Paul Clement, told the court.
One factor in the case appeared to be whether the coach’s decision to pray in such a prominent place, on the 50-yard line, amounted to a private moment of giving thanks or a public demonstration of his religious faith that his players may have felt compelled to join.
Kennedy became an assistant coach of the varsity football team at Bremerton High School in 2008 and later began offering a brief prayer on the field after games ended and the players and coaches met midfield to shake hands. The school district eventually told him he should find a private location for praying, but he declined and continued his practice of dropping to one knee and praying silently on the 50-yard line.
“I was just doing the free exercise of my religion and wasn’t going to go hide it because I work for the government,” he said in an NBC News interview. “No one in America should have to hide who they are or that they have faith.”
The school district said his prayer was anything but private. He announced his plans to continue praying and invited journalists and a state legislator to watch. The district gave him a poor performance evaluation, and he did not apply to renew his contract after the 2015 football season.
“He’s the one who insisted on giving audible prayers that students could join, and then he created a zoo on the field,” said Richard Katskee, the lawyer for the school district.
Some of the court’s liberals seemed to agree. “He chose to publicize his prayer, and he got down on one knee on the 50-yard line,” said Justice Sonia Sotomayor.
Other members of the court said even if the prayers were not seen as an endorsement of religion, they could still be viewed as subtly pushing members of the team to join in.
Prayer by teachers and coaches “kind of puts undue press on student to participate when they may not wish to,” said Justice Elena Kagan. “They feel like they have to join religious observations they don’t wish to join.”
Justice Brett Kavanaugh wondered about the player “who thinks, if I don’t participate in this, I won’t start next week. Every player is worried about playing time.”
But he said there’s a difference between a prayer in the locker room or the huddle and when players are disbursing after a game. “If a coach kneels down and prays, doesn’t invite or discourage players to join him, but is visible to people in the stands, he can be fired for that?”
Justice Samuel Alito said school should treat religious expression by teachers no differently than they do expression of political views. “Suppose what Coach Kennedy did was go out on the field after the game and wave the Ukrainian flag?”
After he wasn’t asked back, Kennedy filed a lawsuit claiming violations of his right to free expression and religious freedom. But the lower federal courts said because he chose to say his prayers in such a prominent place, he was acting as a public employee and his conduct was therefore not protected by the First Amendment.
He was dressed in school colors, still on the job, and responsible for the conduct of his players, a lower court ruling against him said, and a reasonable observer would have seen his actions as a coach “participating in, in fact leading, an orchestrated session of faith.”
Those rulings cited past Supreme Court decisions that said when public employees act in their official capacities, they are speaking more for the government than for themselves.
After Monday’s argument, it appeared that a majority of the Supreme Court did not agree that his conduct could be considered an official endorsement of religion.
The case attracted an unusual amount of attention, with 60 friend-of-court briefs, including from former professional football players — some supporting the coach, others supporting the school district.
The justices will issue their decision by the end of June.