Supreme Court rules on coach's right to pray at school games

Former Bremerton High School football coach Joe Kennedy (First Liberty Institute photo)

A high-school football coach fired by his district for his brief, solitary prayers following his team's football games has won his free speech fight at the U.S. Supreme Court.

The 6-3 ruling included multiple concurrences and a lone dissent filed by the three leftist judges on the bench.

Written for the majority by Justice Neil Gorsuch, the opinion  came in the case involving Joe Kennedy, who was dismissed by the Bremerton school district in Washington state over his prayers.

His case to the high court charged that Bremerton was "hostile" to his faith and prayers, which happened after the field had cleared after the end of games.

Kennedy had asked the U.S. Supreme Court to reverse the school's punishment and decisions by lower courts.

The court's majority held, "The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal: The Constitution neither mandates nor permits the government to suppress such religious expression."

"No one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving 'thanks through prayer' briefly 'on the playing field' at the conclusion of each game he coaches," the majority said. "The contested exercise here does not involve leading prayers with the team; the district disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015.

"In forbidding Mr. Kennedy's brief prayer, the district's challenged policies were neither neutral or generally applicable. By its own admission, the district sought to restrict Mr. Kennedy's actions at least in party because of their religious character…"

Kennedy lost his job when he knelt at midfield after games for a "quiet personal prayer."

The district court refused his motion for an order that the district reinstate him, and the 9th U.S. Circuit Court of Appeals affirmed.

The district court then dismissed Kennedy's case entirely and the appeals court followed suit.

Significantly, however, when the 9th Circuit refused to hear the case en banc, 11 judges dissented, arguing that the panel "applied a flawed understanding of the Establishment Clause that followed the now-abandoned Lemon precedent that had been used by the Supreme Court."

The opinion explained, "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. He did not speak pursuant to government policy and 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."

It continued, "Simply put: Mr. Kennedy's prayers did not 'ow[e their] existence' to Mr. Kennedy's responsibilities as a public employee."

The district had cited the defunct Lemon precedent in demanding that "Mr. Kennedy's rights to religious exercise and free speech must yield to the district's interest in avoiding an Establishment Clause violation…"

The so-called "Lemon" test involved looking at a law's purposes, effects and potential for entanglement with religion, and eventually involved guesses about what a "reasonable observer" would think.

It was abandoned because of its "ahistorical approach to the Establishment Clause."

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Joining Gorsuch in the majority were Justices Roberts, Thomas, Alito and Barrett. Justice Kavanaugh joined except for one part. Justices Sotomayor, Breyer and Kagan dissented, and would have allowed the district to continue restricting an individuals private, personal prayers.

Kelly Shackelford, chief of First Liberty, explained, "This is a tremendous victory for Coach Kennedy and religious liberty for all Americans.

"Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired. We are grateful that the Supreme Court recognized what the Constitution and law have always said – American’s are free to live out their faith in public."

Paul Clement, former U.S. solicitor general and First Liberty network attorney who argued Kennedy’s case before the justices, added, "After seven long years, Coach Kennedy can finally return to the place he belongs – coaching football and quietly praying by himself after the game. This is a great victory for Coach Kennedy and the First Amendment."

Kennedy, in a statement released through his legal team, said, "This is just so awesome. All I’ve ever wanted was to be back on the field with my guys. I am incredibly grateful to the Supreme Court, my fantastic legal team, and everyone who has supported us. I thank God for answering our prayers and sustaining my family through this long battle."

The majority added, "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. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination."

John Burch, of the ADF, said, "As the Supreme Court has affirmed, Coach Kennedy’s personal prayer of gratitude at the end of a football game is protected under the First Amendment both as religious exercise and as private speech, free from government censorship. American citizens don’t give up the right to prayerfully practice their faith during working hours when they accept a job with a public employer. We are pleased the Supreme Court reversed the 9th Circuit’s ruling that wrongly reasoned that Coach Kennedy’s personal, on-field prayers were not his own, but the government’s, and affirmed his constitutional right to exercise his faith, as is true for every American."

The court ruled: "Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike."

The opinion noted that sometimes players asked if they could join Kennedy at midfield, to which he responded, "This is a free country. You can do what you want." Sometimes those players invited players from opposing teams. Still, sometimes Kennedy's prayers were alone.

The practice apparently had gone on for some seven years before an employee from another school complemented the school on the activities, and officials in Bremerton responded immediately, threatening Kennedy about his "problematic practices."

Officials ordered that Kennedy's religious rights must "yield."

Sonya Sotomayor wrote the dissent, but incorrectly claimed that Kennedy's prayers were "at the center of a school event," when they, in fact, were after the event had ended.

She claimed, "Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents…"

She claimed, too, that the court's decision "ignores the severe disruption to school events caused by Kennedy's conduct…"

Sotomayor conceded that Kennedy "never asked any student to join him," but wrote, "This case is not about the limits on an individual's ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee's personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched."

She said Kennedy's offense was that he "continued to initiate prayers visible to students," while "on duty" at school.

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