SCOTUS Upholds High School Coach’s 50-Yard-Line Prayers
The Supreme Court has reversed decades of precedent on church-state separation.
Nina Totenberg, NPR (“Supreme Court backs a high school coach’s right to pray on the 50-yard line“):
The U.S. Supreme Court on Monday sided with a high school football coach who claimed the right to pray on the 50-yard line after each game, joined by those players who wanted to participate. The 6-to-3 decision was the latest example of the court’s conservative supermajority requiring more accommodation for religion in public schools and less separation between church and state.
The decision was based largely on the lower courts’ finding that that the school told the coach to stop his midfield praying because it would be perceived as a school endorsement of religion.
Writing for the court majority, Justice Neil Gorsuch said that the school relied exclusively and improperly on concerns that the prayers would be viewed as a religious endorsement by the school. Without evidence that students had been coerced, the majority said, barring coach Joseph Kennedy from praying on the 50-yard line at the end of each game was a form of hostility to religion, in violation of the Constitution.
“Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims,” Gorsuch wrote.
The three dissenters said that account of the facts blinkered reality. Writing for the three liberals, Justice Sonia Sotomayor said that Kennedy’s prayer was neither private speech, nor benign. She pointed to the fact that the coach conducted a media blitz leading ultimately to the field being stormed and students being knocked down. And she said “schools face a higher risk of unconstitutionally ‘coerc[ing] … support or participat[ion] in religion or its exercise’ than other government entities.”
The background makes it rather clear that this was more than just a simple prayer; it was clearly performative:
The case began in 2015 when school administrators in Bremerton, Wash., instructed Kennedy to stop his praying on the field at the end of the game. But Kennedy, a former Marine, refused. “I fought and defended the Constitution and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody, that’s just not America,” he said.
By the time of the homecoming game, Kennedy’s media appearances had made him something of a celebrity, and things in Bremerton had gotten so tense that despite extra police at the game, the mainly pro-prayer crowd mobbed the field, knocking over some of the band members and cheerleaders. Kennedy, surrounded by TV cameras and some players, knelt to pray on the field while a state legislator placed his hand on Kennedy’s shoulder in support. That wasn’t all. There were Satan worshippers there, too, from Seattle. It was, recalled the school principal, “a zoo.”
The school continued to tell Kennedy and his lawyers that it wanted to accommodate his wish to pray, but it wanted a less public demonstration of faith because it said the post game prayers would be seen as the school endorsing religion.
Near the end of the season, after Kennedy repeatedly refused to stop his public praying, the superintendent placed Kennedy on paid administrative leave. Kennedy did not apply for a new contract the following year. Instead, he sued the school district, contending it had violated his right to free speech and the free exercise of religion.
Robert Barnes, WaPo (“Supreme Court rules for high school football coach who prayed at midfield“) adds:
Gorsuch said lower courts should no longer follow the “Lemon test” criticized by religious conservatives, which called on judges to decide whether the government’s action might look to a reasonable observer as government endorsement of religion.
His opinion did not specifically overrule the test that grew out of the court’s decision in Lemon v. Kurtzman. But dissenting liberal Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said that was the effect.
[…]
Those supporting the school district say that Kennedy has radically recast the events that led to his dismissal and that his actions during the 2015 football season were hardly private acts of faith. His Facebook post — “I think I just might have been fired for praying” — drew national attention and elicited support from prominent advocates, includingformer president Donald Trump and Fox News pundits.
[…]
For years, Kennedy took a knee and bowed after games, and nothing came of it. From the stands, it might have looked like nothing more than someone tying a shoe. But then some of the Knights decided they would pray, as well. And they invited players from opposing teams. There were prayers in the locker room and photos of what looked like Kennedy praying while holding helmets of both teams.
The school district decided it had a problem in the 2015 season, when an opposing coach told Bremerton’s principal that he ” ‘thought it was pretty cool how [the District] would allow’ Kennedy’s religious activity,” the district said in its court brief.
There’s also this bizarre angle:
As the legal battle dragged on, Kennedy and his wife retired, sold their house and moved to Pensacola, Fla. The Bremerton school district, represented by Americans United for Separation of Church and State, said that should make the case moot, since it is unlikely Kennedy would move back to Bremerton for a job that provides an annual stipend of just over $5,000.
But Kennedy told the Supreme Court in a sworn statement that if he were allowed to return to his old job, “I can do so within 24 hours of reinstatement.”
Adam Liptak, NYT (“Supreme Court Sides With Coach Over Prayers on 50-Yard Line“) adds:
Justice Neil M. Gorsuch, writing for the majority, said the prayers of the coach, Joseph Kennedy, were protected by the First Amendment.
“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,” he wrote. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance.”
[…]
The majority and dissenting opinions offered starkly different accounts of what had happened in Mr. Kennedy’s final months.
Justice Gorsuch wrote that Mr. Kennedy had sought only to offer a brief, silent and solitary prayer. Justice Sotomayor responded that the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not.
Justice Gorsuch wrote that the coach, at least after the games at issue in the case, “offered his prayers quietly while his students were otherwise occupied.”
Justice Sotomayor gave a different account of the facts, taking account of a longer time period.
“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer,” she wrote. In an unusual move, the dissent included photographs showing Mr. Kennedy kneeling with players and others.
Justice Gorsuch wrote that Mr. Kennedy was not speaking for the school when he prayed.
“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,” Justice Gorsuch wrote.
Instead, he wrote, Mr. Kennedy merely took a moment to pray while others checked their text messages or greeted friends.
Not everything school employees do during work hours is official conduct, Justice Gorsuch wrote. If it were, he said, “a school could fire a Muslim teacher for wearing a head scarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
The NYT podcast The Daily did an excellent treatment of the case back in April (“The Supreme Court Considers a Football Coach’s Prayers“) just after oral arguments. It was actually surprisingly sympathetic to Kennedy, who seems like an earnest and decent guy if a bit of a zealot. He was abandoned by his mom at the age of 8, put into foster care, and was something of a mess. The Marines got him on the right path and he stayed the 20 years needed for a pension. And then he found religion in retirement and got asked out of the blue to become an assistant coach, which he saw as a means to give back—instilling both the discipline he’d learned in the Marines and his faith in young kids.
While I’m irreligious and generally hostile to religion being foisted on the public in government venues (which, incidentally, is routine in military circles, with denominational prayer led by a uniformed chaplain practically de rigueur at many events) Kennedy’s initial actions strike me as speech that should be protected. There’s no reason an adjunct football coach shouldn’t be able to say a quiet prayer after a game. I’d likely be okay with it even if it took place—quickly and without ostentation—on the 50-yard-line.
Rather clearly, though, it became much more than that and Gorsuch is willfully misrepresenting the facts of the case by pretending otherwise. Had Kennedy said a quiet prayer over lunch (assuming he even eats lunch at the school) I can’t imagine anyone would have objected. Ditto a quick private prayer or crossing himself before or after the game.
Not only did Kennedy draw attention to himself, but his actions became a spectacle that actually put people in danger. Frankly, school officials could have simply relied on that rather than the associational issue. Still, by allowing him to continue performing, the school would absolutely have been seen as endorsing his actions. And various other groups were well in their rights to demand equal access.
Aside from the spectacle, with politicians preening alongside Kennedy to further their own ends, Kennedy’s players were also dragged into the mess. To be clear, there’s no evidence I’m aware of that anyone was punished or ostracized for failing to pray with him. Indeed, after the school expressed their concern to him, he expressly forbade team members from joining him on the field. But, after he goes public, the thing goes viral and opposing players start joining in.
This exchange from the podcast is interesting:
Sabrina Tavernise: [Y]ou’ve described this guy as very much motivated by his faith, right? This is a central part of his life. And it’s a central part of his coaching. So that also suggests that, in fact, this is not a purely private act.
Adam Liptak: That’s right. And I think the coach would candidly say that he would like to help and mentor these kids any way he can, including by drawing on his faith. But he’s willing to, he would say, at least on the job, conform to whatever the law requires. And in his view, the law does not permit praying in the locker room. But it does permit praying on the 50-yard line, and not encouraging, but not discouraging, students from praying with him.
But the coach’s lawyers also say that listen, nobody thinks he was speaking on behalf of the school. The school was very explicit that they didn’t want him to do this. That’s what led to the fight. So whatever might be said about his praying in the early years, by the time this becomes an issue, the school has effectively, he would say, issued a disclaimer. We have nothing to do with this guy. He’s on his own.
Sabrina Tavernise: Right, I mean, and point of fact, they refused to renew his contract. And there’s a huge fight with them precisely because he’s raising this prayer issue. So it certainly doesn’t look like his prayer is backed by the school or in any way representing it.
Adam Liptak: That’s right, and I think that’s how many of the justices thought about it. And that made you think that this first argument, this first way of thinking about the case, as about endorsement, is likely to favor the coach’s side. But there was a second issue in the case of coercion. And that may favor the other side. […] — because he is such a popular figure, students may well feel compelled to join him in prayer, particularly after a game on the 50-yard line, which is when coaches often say important things.
Sabrina Tavernise: OK, so the argument here, it sounds like, Adam, is that it doesn’t really matter if the coach himself thinks it’s just a private thing. That what matters is how the players, the kids, are perceiving it. If they feel pressure to participate in this prayer because this is their coach, he’s an important guy, he holds power over them, that pressure violates the player’s freedom. Kind of like if your boss asks you out on a date, doesn’t say it’s a requirement, but you kind of feel pressured to go.
Indeed, Justice Kavanaugh, himself a part-time coach, expressed sympathy for that line of inquiry during oral argument:
What about the player who thinks, if I don’t participate in this, I won’t start next week, or the player thinks, if I do participate in this, I will start next week, and the players wants to start?
[…]
How would you ferret that out? Because every player is trying to get on the good side of the coach. And every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera.
[…]
I guess the problem at the heart of it is you’re not going to know because the coach is probably not going to say anything. Like, the reason I’m starting you is that you knelt at the 50-yard line. You’re never going to know. And that leads to the suspicions by parents — I think. I’m just playing out what the other side is saying here.
Obviously, Kavanaugh ultimately joined Gorsuch’s opinion, as widely expected. But he’s right: there’s just no way a kid would know. And it seems clear to me that he shouldn’t be put in that quandary by a government employee.
I don’t think this case was a slam dunk. Cases that reach the Supreme Court rarely are. The school could probably have handled this better at multiple steps. Then again, so could Kennedy.
Still, this is another instance where this Court is thumbing its nose at decades of precedent. Even as a nonreligious person, I think some of the previous rulings went a bit too far in erecting the wall between church and state. But the school acted appropriately in telling Kennedy to knock off the proselytizing and he made a national case out of it, magnifying the problem. It was perfectly reasonable for them not to renew a part-time coach under those circumstances—indeed, I can’t imagine bringing him back.
I hate it when assholes win. Welcome to the world of Catholic Integralism. With a large side of own the libs. I also hate it when SCOTUS Justices lie, but how else can conservatives make their case?
It’s like Jesus said, “Pray loudly and very publicly to show how feverent you to everyone else”.
This is clearly coercive and the majority had to ignore the facts of the case to pretend that it wasn’t.
I thought last week’s case was correctly decided — the state cannot discriminate against religious schools in a voucher plan (voucher plans themselves I have a lot of problems with) — but this is a major overreach.
And we now need some satanist coaches.
God will be at the next High School football game. But it was just to much trouble for the all powerful god to be at Robb Elementary School in Uvalde, Texas on May 24, 2022.
As I think I said in another spot earlier today, I have a huge uncomfortable-ness about the whole public proselytizing and/or performative prayer. Sorry, Coach, but while this may have started out benignly, you encouraged and contributed to the escalation. And while I expect school district administrators to act in a ham-handed manner, if I was in charge of the district, I’d have answered his claim that he’d move back immediately by saying, “Cool, you’re hired. See you next week.” If he didn’t show, there’s our answer to his suit.
I’m appalled/not surprised at this ruling. We have a super-majority in the SC who are actively encouraging state religion and a theocracy (if you’ll allow me to call it a theocracy) consisting of white males who purport to follow a very narrow, cherry-picked, Old Testament bible.
@Flat Earth Luddite: He’s a retired Gunnery Sergeant.
@Gustopher: wouldn’t need to be a coach. It will be a lot easier to find a HS student to go do that, at least if kids are like they were when I was in HS. Wouldn’t even need to be a team member, just a strong supporter
I really should keep track, because I’m pretty sure that a number of people here told me stare decisis was a very real thing when I dismissed it as bullshit.
No rule rules an ideologue or a religious nut.
Matthew 6:5
Pray not on the street corner as the hypocrites do…. or the 50 yard line
@James Joyner:
Thanks for the clarification. I saw that in a follow-up on another window and edited my initial comment. In point of fact, my neighbor who was a retired Gunny would, in fact, consider every issue a suitable hill to die on. Every. Single. One. I think he was bored with retirement. It was exhausting being his neighbor.
Ok, so where’s the line? Because I don’t think there is one anymore.
Can government clerks/judges refuse marriage licenses to LGBT people based on their religious beliefs? Can they simply refuse to work with them? Like the local assessor’s office refuse to help a queer person with their tax appeal submission. Sorry, god says the gays gotta pay more taxes.
I just emailed a friend of mine (who happens to be a fairly dedicated Jew) at a major title company to ask what I should do if I come across religiously motivated deed restrictions. Sorry folks, your gay, you can’t own this land. Jesus says so.
And where does it stop? I’m guessing based on the Court’s recent rulings that all anti-discrimination law is about to go bye-bye. Or at least become two tiered. One tier for all the Christians who think everyone else should get bent, and one tier for the non-Christians
U.S. Muslim teachers need to start leading their classes in prayer to Allah each morning.
OTOH, at my secondary school the sports teacher was regularly heard beseeching God at the edge of the pitch.
For mercy, mostly.
Never seemed to do much good. 🙂
The Lemon test was not much of a precedent, being considered to be held or overruled depending on whims of the courts even 30 years ago. So, that portion of the decision is not very radical.
The justices have no idea how team sports work. If a coach is praying, and you’re one of the players who doesn’t pray, good luck getting on the field, unless you’re a superstar, and even then it might not be enough. That’s the reality on ANY team. You do what coach says.
I’ve stopped being kind to religious zealots. If they want to pray publicly to a sky daddy, I’m going to mock them. If they’re praying in private, I won’t know.
@Flat Earth Luddite: Zeeb, you and I agree on the whole discomfort with public proselytizing thing. I’ll go so far as to object to Christmas decorations involving elements other than colored lights and Santa on public land. They can do whatever they want with the commercial opportunity they’ve created as long as they leave my religious holiday alone and don’t corrupt it with their endorsements. But an assistant coach praying on the 50-yard line after the game–with or without students joining him–may be the ultimate nothing burger combo deal–no burger, no bun, no fries, no coke, and not even any no ketchup, no mustard, and no pickle. The district picked this fight with him–according to the story itself–when
instead of replying “yes, it is pretty cool that we respect the coach’s freedom of religion.” That the coach decided to exacerbate the problem with his facebook quote is, sadly, to be expected in a climate such as ours and a reminder that the PNW is not as relentlessly secular as I’d like to believe it is. Yes. He escalated it. They shoulda seen that comin’. (And should have avoided the problem in the first place by terminating his contract at their earliest convenience without mentioning praying after the game and giving him the opening to have an actionable grievance against the district. There are reasons that extra duty contracts are subject to termination without cause.) The stuck out their chin, he hit it. Easy peasy.
Yeah. I wish the Supremes had declined to consider the case. That would have been another solution. As to Kennedy himself, he’s cut from the same cloth as you warned my ex-wife that I am. Doesn’t matter what happens to me, as long as you get hurt. The district shouldn’ta started it.
@Lynn: And I’ll agree with you on this, too. But The Constitution says he can pray wherever he wants to. I support both documents.
A few random thoughts:
“On the 50 yard line” is repeatedly mentioned. But… that’s also where the team benches are, right? So was it out in the center of the field, or was it at the boundary line/by his team’s bench–which is where he would have been standing for most of the game?
He’d been doing this quietly for 7 years, and then suddenly it “became something”. What changed?
Was he praying out loud, or just kneeling (and again, just kneeling by the bench)?
None of this really has much impact on how the case should have been decided, but it still makes me wonder.
This has nothing to do with honoring God. It’s personal look-at-ME!!!! vanity, pure and simple, and that’s all.
And if there’s one thing high school football coaches are known for, it’s their respect for individual self-expression and their restraint when faced with non-conformity by their players.
@Stormy Dragon: Okay. Show your work in the Bremerton situation. Or do you only do innuendo?
@Beth:
I don’t expect the Christian Taliban to abide by any lines.
@Gustopher: I want to see one of the players now insist on their right to drag a white heifer out to the field and sacrifice it on the 50-yard line with a prayer to Aphrodite.
@Mu Yixiao: “What changed?”
The only thing that I can see is “[t]he school district decided it had a problem in the 2015 season, when an opposing coach told Bremerton’s principal that he ” ‘thought it was pretty cool how [the District] would allow’ Kennedy’s religious activity,” the district said in its court brief.”
Now I will admit that I’m one of “those people,” but I can see how it might look like religious intolerance to some. Maybe even SCOTUS justices. I regret the circus it became (much as Justice Sotomayor does) but note that the circus happened after “[t]he district decided it had a problem.” While sequence does not prove causation, the dots seem pretty easy to connect here. Then again, I am one of “those people,” so my view may well be suspect.
@Tony W: No, not leading. But rather get out their prayer rugs five times a day to privately pray in front of their students.
@grumpy realist: At the end of the game? What would be the point? Who’s going to notice?
@Lynn: Indeed. In fact, that was the comment I was going to leave: “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full.”
@Just nutha ignint cracker:
@Mu Yixiao:
Would the Supreme Court have ruled the same if a Muslim coach pulled out the prayer rug at the 50 yard line and did the same thing with some members of his team?
No. They would not have. We all know it. This is a purely Christian performance art piece, and should have been ignored by the court, rather than endorsing it.
@grumpy realist: I am tempted to send a tax deductible donation to the Satanic Temple people.
@EddieInCA: If it were possible, there would be ess than 0% chance of the same ruling if it were a Muslim coach. Of course, if it were a Muslim coach the case would have been was the school district correct in firing the coach. The ruling then would have been 6-3, yes, the school was permitted to fire the coach.
@Michael Reynolds: Thomas is the only Justice I’m aware of that openly thumbs his nose at stare decisis. Even fairly doctrinaire conservatives like Rehnquist and Scalia bowed to it in most instances. Roberts, certainly, is begging his colleagues to respect it. But, yes, a core group seems to have no respect for it in instances that contradict their religious agenda.
@JKB: I agree that Lemon, which always struck me as a perfectly reasonable balancing test, never truly stuck. You cite a concurring opinion in a case where the plurality relied on Lemon but Scalia was largely right.
@EddieInCA: It’s likely that Kavanaugh is the only one who played high school football. He agreed with you in oral argument—granting, playing Devil’s advocate—but still ruled for the coach.
@Just nutha ignint cracker: I agree that the school leadership didn’t handle this with aplomb; that’s par for the course, I’m afraid. But once it was drawn to their attention, I don’t think they had any choice but to ask him to stop.
@Mu Yixiao: It was the middle of the field. Multiple pictures demonstrate that.
@Stormy Dragon: This is truly getting tiresome. I’m providing background for those who hadn’t previously paid attention to the case, which I only did with that April podcast. I explicitly note, after quoting from the podcast, that of course kids are going to think that they need to do what they think the coach wants them to do, even if the coach isn’t intending to send that signal. Hell, Kavanaugh seems to agree even though he ruled the other way.
@Just nutha ignint cracker:
Yeah that was what led to my comment about boneheaded administration and their boneheaded handling of things. You and I both recall more than a few of those cases.
This should have been a nothing Burger with a cardboard Patty & trimmings from the Play-Doh collection. Instead they managed to get their own privates stuck in their zipper. Ultimately, as with most fuster clucks of this type, my sympathies lie with the students.
@James Joyner:
Nope, I agree with you that once publicized they had to react. At that point, we’re all watching the wreck in the third turn at Talladega.
The Radical Right is on a roll now.
I honestly believe that if they take control of Washington in 2024, there will be a push to fully outlaw abortion through fetal personhood. Afterall if life begins once the egg is fertilized, as most of those people believe, it is not a stretch to assume that they will not leave this to the states, that they will push to outlaw abortion completely. Then they will move to restrict or ban ‘morning after’ parmaceuticals.
@EddieInCA: Didn’t I say that in my original comment?
[checks notes]
Yes, I did.
But have a good fight with the Dominionists. Fun times ahead! Woo hoo!
@James Joyner: I’m not clear on why “Yes, it is pretty cool that we respect his religious freedom” is not a good response, but if you say it’s not, laissez les bon temps roullez!
@Flat Earth Luddite: And I will also agree with Dr. Joyner that once they decided to jump into the briar patch, the were stuck but good. (Pun intended and be thankful that I didn’t go with “decided to fight this tar baby.”)
@al Ameda: Indeed. They might to go this direction to force Biden to keep vetoing the bills starting in 2023. I don’t know if that has a good enough upside, but it WOULD keep the base well fed.
@James Joyner:
Thank you. I haven’t seen any candid photos, just responses to the ruling with (if they had one) obviously staged photos.
From a parent at the school in question:
But we live in a theocracy now, thanks to Republican voters. So.
I get it…
So you CAN kneel on a football field, as long as it’s for prayer, but not for protest.
Got it.
@EddieInCA:
That seems to sum up the whole issue.
@DK: That statement appears to be different from what anyone was testifying to in the hearings that led up to the appearance before the Supremes. On the other hand, I don’t live in Bremerton, so I don’t know the process. If the statement is accurate, that would change the whole contour of the situation, and even I would agree that the court overstepped.
I looked at what the brief that the ACLU filed in the case said earlier today. I find their argument to be the most lucid one I’ve read so far.
If people would only stick to the facts and dispense with the drama, smoke, and mirrors, the lines would be less blurry at the very least.
@Just nutha ignint cracker:
This parent provided a brief to the Court. It’s just that the radical right extremists on the court disregarded his testimony (and that of other such parents), because the Federalist Society hacks care only about imposing their ultraconservative Catholic dogma on an unwilling public.
Hence why Gorsuch blatantly lied in his opinion, asserting the prayers were “quiet” and “private.”
The Apartheid Court’s majority is on a roll with the dishonesty and dissembling these days.
Gorsuch is a liar. His peers joining in his lies are co-conspirators. By way of the theocratic tenants these Supreme Court members claim to to hold dear, they are damned. As such, by their own beliefs, they can only save themselves by repenting and working to right their wrongs. Unfortunately, there is no evidence they are seeking redemption. God help the United States of America.
@EddieInCA: “So you CAN kneel on a football field, as long as it’s for prayer, but not for protest.”
It’s actually easier than that. You can kneel on a football field if you’re white.
You might want to remember that simplified formulation. I suspect it will come in handy a lot until this so-called court is finally overthrown.