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Coach prevails at Supreme Court on game-time prayers

The three Democrat-appointed justices dissented warning the ruling harms religious liberty and erodes the separation of church and state

In a 6-3 ruling Monday, the Supreme Court said a football coach’s First Amendment rights were violated when the school district tried to prevent him from leading prayers on the 50-yard line after games.

The high court found that the Free Exercise and Free Speech Clauses of the First Amendment protected Washington high school football coach Joseph Kennedy’s post-game prayers. Writing for the majority, Justice Neil Gorsuch said the Constitution did not support the school’s prohibition on this religious activity. 

“Respect for religious expressions is indispensable to life in a free and diverse Republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” the Trump appointee wrote. 

Gorsuch said the school tried to punish the coach for his prayer because of a “mistaken view” that it was supposed to suppress religion. 

“The Constitution neither mandates nor tolerates that kind of discrimination,” Gorsuch wrote. 

Justice Sonia Sotomayor — joined by Justices Breyer and Kagan — said the ruling puts one person’s religious interests above society’s interest in protecting the separation of church and state. 

“Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection,” the Obama appointee wrote. “In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.” 

The case pits an individual’s wishes to publicly pray after football games against a public school’s responsibility to prevent employees from endorsing religious messages to students. While Kennedy’s post-game prayers at the 50-yard line started off as a solitary ritual, they soon gained attention from players, local lawmakers and the media. The prayers also evolved into motivational speeches with religious content. 

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The school board in Bremerton, Washington, just west of Seattle, told Kennedy he could continue his post-game prayers, but not with students during school activities. Kennedy complied with their request initially but then sent the district a letter announcing his intention to continue his public prayers. After Kennedy failed to comply with another request to cease public prayers while on duty, the school superintendent put him on paid administrative leave.

Kennedy sued the district for violating his First Amendment rights but was denied injunctive relief by the trial court, the court of appeals and the Supreme Court. On the merits, a federal judge said the school district was correct to put Kennedy on administrative leave, and the Ninth Circuit affirmed. The Supreme Court took up earlier this year, and Kennedy appeared to get a sympathetic ear from the conservative justices in oral arguments that appeared primed to expand prayer at public schools. 

Kennedy’s attorney, Paul Clement with Kirkland & Ellis, said putting his client on leave for praying violated the free speech and free exercise clauses of the First Amendment. Clement did not respond to requests for comment.

The school district, conversely, argued that they weren’t trying to violate Kennedy’s rights but instead protect the rights of the students they teach. Richard Katskee, the attorney for Bremerton who is with Americans United for Separation of Church and State, said some students felt pressured to pray with Kennedy fearing they wouldn’t get fair playing time if they didn’t.

Gorsuch said the Free Exercise Clause protects not only the right to hold religious beliefs in private but also in public. 

“The Clause protects not only the right to harbor religious beliefs inwardly and secretly,” Gorsuch wrote. “It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.’”

The majority claims the issue before them does not involve Kennedy leading prayers with students and instead only prayers after three games in October of 2015. Gorsuch wrote that Kennedy engaged in these prayers during the post-game period when coaches can greet family and express other forms of free speech so his prayer should be classified as private speech and not a part of the duties of his government job. 

“When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach,” Gorsuch wrote. “He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not ‘ow[e their] existence’ to Mr. Kennedy’s responsibilities as a public employee.” 

Sotomayor claims the majority misconstrues the facts of the case and errored by looking at issues in the case divorced from the context and history of Kennedy’s prayer practice. 

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50- yard line of the football field,” Sotomayor wrote. “Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.” 

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Gorsuch rejects arguments claiming the Establishment Clause limits the Free Exercise and Free Speech Clauses, claiming the clauses are complementary not warring. 

“A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others,” Gorsuch wrote. 

The majority said there was no evidence to support claims that Kennedy was coercing students to pray. Gorsuch said that while students might have seen or heard Kennedy pray after games, learning how to tolerate this kind of speech is part of living in a pluralistic society. 

“This Court has long recognized as well that ‘secondary school students are mature enough . . . to understand that a school does not endorse,’ let alone coerce them to participate in, ‘speech that it merely permits on a nondiscriminatory basis,’” Gorsuch wrote. “Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But ‘[o]ffense . . . does not equate to coercion.’” 

Sotomayor referred to the majority’s analysis on this point as “toothless” 

“Even on the Court’s myopic framing of the facts, at two of the three games on which the Court focuses, players witnessed student peers from the other team and other authority figures surrounding Kennedy and joining him in prayer,” Sotomayor wrote. “The coercive pressures inherent in such a situation are obvious.”

The dissent said public school teachers leading religious practices violates core constitutional protections. 

“Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment,” Sotomayor wrote. 

Following the ruling, the Bremerton School District said their focus has always been to protect students and they will continue to focus on protecting students’ rights and safety.  

“In light of the court’s decision, we will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff,” the school district said in a statement. “We look forward to moving past the distraction of this 7-year legal battle so that our school community can focus on what matters most: providing our children the best education possible.”

Americans United for Separation of Church and State, which represents the school district, said the ruling represented a loss of religious freedom and focused on the demands of “far-right Christian extremists.” 

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” Rachel Laser, president and CEO of AU, said in a statement. “It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.”

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