Former Bremerton High School Assistant Football Coach, Joseph Kennedy, never wanted public attention.[2] Rather, he wanted to coach football and say a short, internal prayer on the fifty-yard line after each game.[3] Specifically, he wanted to thank God for his players and for the opportunity to coach them.[4] Despite his religious beliefs, the coach recently found himself standing in front of the Supreme Court after losing his job because he refused to stop praying.[5]
High School Football Coach Tests the Supreme Court
Coach Kennedy argued the school district violated his religious freedom by forbidding him to publicly pray after games.[6] Paul Clement, representing Kennedy, advocated to the justices that the 50-yard line prayers at the end of the games were “private religious expressions[,]” protected by the First Amendment of the Constitution’s guarantee to free speech and free exercise of religion.[7] He stated the prayer was analogous with a player crossing himself after scoring a touchdown, or teammates taking a knee during a player injury.[8]
In contrast, Richard Katskee, a lawyer representing the Bremerton School District, asked the justices to enforce Thomas Jefferson’s ideology of separation between church and state.[9] He argued that the coach’s prayers were a form of coercion and endorsement.[10] In particular, Katskee argued that because Coach Kennedy determines who makes varsity, gets playing time, and provides recommendations for college scholarships, he and the other coaches pressure athletes to pray to ensure a better high school football career.[11] In addition, the school district noted that Coach Kennedy’s conduct created safety concerns, recalling that the prayers sparked students to storm the field and caused individuals to get knocked down.[12]
During the argument, the conservative Court majority seemed prepared to rule Coach Kennedy exercised his private religious beliefs and was not endorsing or speaking for the school district.[13] Justice Brett Kavanaugh, for example, suggested there is a difference between coaches who pray during a huddle in the locker room versus those who pray after the game.[14] “This wasn’t, you know, ‘Huddle up, team,’” Kavanaugh stated.[15] This comment seems to support Coach Kennedy’s conduct as an acceptable form of private, as opposed to government, speech.[16]
Contrary to the conservative view, the three liberal justices sided with the school district’s concerns of coercion.[17] Justice Kagan exemplified this view by stating “[w]e're worried that the students will feel he gets to put me into a football game, or not… And this is a kind of coercion that’s improper for 16-year-olds.”[18]
Prior Precedent and Predicting the Likely Outcome
Prayer in public schools and sporting events has been a highly litigated topic in front of the Supreme Court for decades.[19] One of the foundational religious cases dates to Lemon v. Kurtzman[20], which held in 1971 that laws must have a “secular legislative purpose.” The Court established a three-part test to determine whether the law survives constitutional muster.[21] To pass this test, the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot create an excessive government entanglement with religion.[22] Overtime, however, the test as largely been abandoned in a manner that continues to favor religious expression.[23]
Based on the tone of the 6-3 conservative justices, it is expected the opinion will side with the Christian coach, finding the prayers were private speech.[24] Ultimately, this opinion will not only effect coaches, but it will make it easier for public school employees to express their religious views.[25] In addition, the court may take the opportunity to overturn the Lemon test.[26] The opinion should be issued before summer recess.[27]
References: [2] See Michael A. Fletcher, How an unknown high school football coach landed in the center of a Supreme Court religious liberty case, ESPN (Apr. 25, 2022). [3] Id. [4] Id. [5] See John Kruzel, Supreme Court revisits prayer in school in football coach case, The Hill (Apr. 24, 2022). [6] Id. [7] Id. [8] Id. [9] Id. [10] See Supreme Court Hears Arguments About Praying High School FB Coach, AP (April 25, 2022). [11] Id. [12]See Nina Totenberg, Supreme Court seems sympathetic to coach who claims right to pray on the 50-yard-line, NPR (April 25, 2022). [13] Id. [14] Id. [15] Id. [16] Id. [17] See Anthony Zurcher, US Supreme Court: Should this coach have been punished for praying? (April 26, 2022). [18] Id. [19] Id. [20] Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971). [21] Id. at 612. [22] Id. at 612-613. [23] See Zurcher, supra note 17. [24] See Lawrence Hurley and Andrew Chung, U.S. Supreme Court conservatives lean toward football coach in prayer case (April 25, 2022). [25] Id. [26] Id. [27] Id.