Supreme Court grapples with high school coach’s prayer on football field

The Supreme Court on Monday posed sharp questions during oral arguments over a case involving a high school football coach who was reprimanded for holding postgame prayers on the football field’s 50-yard line.

It was not apparent from the roughly 90-minute argument how a majority of the justices would rule in the case, which pitted coach Joseph Kennedy against the Seattle-area school district that placed him on paid leave for violating a school policy prohibiting staff from encouraging students to engage in prayer.

A significant portion of Monday’s argument involved parsing the facts of the case, a task made more difficult by the parties’ sharply contrasting accounts of what transpired in the run-up to Kennedy’s separation from Bremerton School District and his subsequent lawsuit alleging First Amendment speech and religious rights violations. 

“One of my problems in this case is the parties seem to have different views of the facts,” said Justice Stephen Breyer. “This may be a case about facts and not really much about law.”

Paul Clement, a former U.S. solicitor general who represents Kennedy, described the coach’s conduct after games as “private religious expression.”

“When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own,” Clement said. “That private religious expression was doubly protected by the Free Exercise and Free Speech clauses.”

The lawyer for the school district, by contrast, depicted Kennedy as having led a highly visible and publicized demonstration of his religious beliefs at a school event in his influential capacity as a coach. 

“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” said lawyer Richard Katskee. “But that wasn’t good enough for Mr. Kennedy. 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.”

Starting in 2008, Kennedy began kneeling on the football field after games and conducting a brief prayer. Eventually, many of his players joined him, as did members of opposing teams. This continued without formal complaint until 2015, when the school told Kennedy to stop. 

Administrators said Kennedy’s conduct violated school policy that prohibited staff from encouraging students to engage in prayer or other devotional activity. Kennedy went on to defy the school’s order and was placed on administrative leave. 

Kennedy did not reapply for his job after his contract ended in 2015. He later filed a lawsuit, alleging the school violated his First Amendment speech and religious rights in disciplining him for his private religious expression. 

Two of the court’s most conservative members, Justices Clarence Thomas and Samuel Alito, seemed to signal during questioning their skepticism that Kennedy’s expression rose to the level of government speech.

Justice Neil Gorsuch appeared inclined to go further in ruling for Kennedy. Gorsuch, one of the court’s most conservative members, seemed ready to use the case as a vehicle to conclusively overrule the court’s landmark 1971 ruling in Lemon v. Kurtzman, which created a legal test for gauging church-state separation under the First Amendment’s Establishment Clause that conservatives have long argued goes too far in favor of secularism.

“Why is it that the School District so emphasized Lemon?” Gorsuch asked Katskee. “This Court for decades now has resisted attempts to rely on Lemon in cases like this. And it does seem like there’s an awful lot of record suggesting reliance on Lemon.”

Justice Elena Kagan, one of the court’s more liberal members, appeared sympathetic to the school’s argument that the coach’s public prayer was capable of putting pressure on students to join him.  

“What our cases have long cared about in thinking about these questions … is coercion on students and having students feel that they have to join religious activities that they do not wish to join, that their parents do not wish them to join,” Kagan said to Clement.

Justice Sonia Sotomayor, another of the court’s liberals, pointed out facts in the record that cut against Kennedy’s case. She noted that one player on Kennedy’s team who was an atheist expressed concern that not joining Kennedy’s midfield prayer might cause him to lose playing time.

“Don’t those facts suggest the very coercion that Justice Kagan was talking about?” she asked.

Updated: 3:05 p.m.