The Issue of Public Prayer Hits the Supreme Court Via a High-School Coach

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    The U.S. Supreme Court is hearing a case involving a high-school coach who was fired for praying on the field. The matter involves the high-school soccer trainer Joseph Kennedy and Bremerton School District in the state of Washington. Kennedy is a committed Christian who was hired by Bremerton High School back in 2008 but was sacked from his position as an assistant coach for varsity and as the head of junior varsity when he refused to stop praying at the 50-yard line, in full view of the crowds, after games.

    Kennedy declared his school district infringed on his rights under the Free Speech and Free Exercise Clauses of the First Amendment of the U.S. Constitution. The district also relied on the First Amendment to justify its defense, asserting that Kennedy's prayers in the presence of the students and public after a school-sponsored event were in violation of the Establishment Clause, as the actions of Kennedy could be seen as an endorsement by the district of religious beliefs. The end result was that Kennedy requested the Supreme Court to decide if a public employee who “says a brief, quiet prayer by himself while at school and visible to students” is engaging in a public speech that does not have First Amendment protections, and whether the Establishment Clause compels public schools to prohibit it.”

    The debate on Monday was centered around the question of whether Kennedy's public prayers were an endorsement by the government of religion and whether he had the ability to influence students to participate in his prayers due to his position of authority in the school

    Kennedy's lawyer, Paul Clement, pointed out that the school district did not make allegations of coercion in its investigation against Kennedy and only mentioned concerns regarding Establishment Clause violations as the reason for his dismissal. “There's no evidence of coercion in this record. But, worse still, my client has already waited six years to get his job back,” Clement stated.

    The majority of the court's conservatives appeared more favorable to Kennedy's position and asked probing questions to both Clement as well as the attorney for the school district, Richard Katskee. They also posed a range of possible scenarios.

    Justice Brett Kavanaugh questioned the nature of Kennedy's prayers, drawing attention to how they occurred after the games, not during the games or in the locker room. “This wasn't, you know, ‘huddle up, team,' you know, which is a common coach phrase,” Kavanaugh declared. “That wasn't this, right?”

    Kavanaugh also asked Katskee a question regarding a coach who makes the sign of the cross prior to the start of a game. He asked how the district might deal with such an incident by an employee.

    “If the coach is doing it while not making himself the center of attention at the center of the field, it's perfectly fine,” Katskee replied.

    “I don't know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game,” Kavanaugh declared in response.

    Chief Justice John Roberts asked Katskee to remove the drama that was brewing between Kennedy and the local school board and examine the bones of Kennedy's conduct. “What if all that was off the table? It's simply the coach going out to midfield, kneeling–taking a knee, and that's it?” Roberts posed.

    Justices Clarence Thomas and Samuel Alito also offered hypotheticals. Thomas asked Katskee whether the school's officials would have punished Kennedy for kneeling in the middle of the national anthem in order to protest against racism. Justice Alito likewise asked if school officials would be in a rage over a political remark made by a public servant. What if “when Coach Kennedy went out to the center of the field … all he did was to wave a Ukrainian flag. Would you have fired him?” Alito asked.

    In the end, Katskee stood by the argument that Kennedy was praying as a coach rather than as a private person. If he was engaging in private discourse, Katskee said that the rights of the coach “would still have to be balanced against the district's interest in controlling its events and messages, protecting the religious freedom rights of the students and their parents, and managing the workplace.”

    Clement said that Kennedy's midfield prayer was “private religious expression [and] was doubly protected by the Free Exercise and Free Speech Clauses… When the School District fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it ignored a veritable wall of this Court's precedents that make clear that a school does not endorse private religious speech just because it fails to censure it… As much as the District would like to change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices. And the record is equally clear that the District's sole reason for its actions was out of endorsement concerns, not concerns for band members' safety or how many players joined the coach in the prayer.”

    It is believed that the United States Court of Appeals for the Ninth Circuit–widely considered to be the highest-ranking federal appeals court–had previously made a ruling against Kennedy. In what is regarded as an Orwellian decision, the Ninth Circuit said Kennedy's prayers weren't protected speech as his exercise of religion was not protected. The court instead said the school district could have violated lawful rights under the U.S. Constitution via the Establishment Clause had it not removed Kennedy since he seemed to support religion as a public servant.

    In 2018, First Liberty filed a petition for certiorari to the U.S. Supreme Court to change the Ninth Circuit's ruling. Although the Supreme Court declined to hear the case in 2019, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh said in a statement that the Ninth Circuit's decision had been “troubling” and that the Court would likely decide on an appeal if the lower court was able to first decide that Kennedy had been fired because of his religious beliefs.

    The district court and Ninth Circuit again sided with the school district in 2021. However, it was the Ninth Circuit that confirmed Kennedy had been fired for refusing to quit praying on the field following games. Then Kennedy refiled to the Supreme Court, and this time, justices voted to consider the case.

    The justices debated further about what the Supreme Court's standards are for determining if the Establishment Clause was violated. Justices Neil Gorsuch and Kavanaugh specifically critiqued the respective versions of the Lemon Test created in 1971 as well as the more recent Coercion Test, calling them outdated and widely disused.

    The Lemon Test and the subsequent Coercion Test are used to determine whether government actions by religious employees are coercing conduct. The Coercion Test was notably created and used in the late 1990s by Justice Anthony Kennedy. Kennedy claimed that students in public schools could be “coerced to participate in state-sponsored religious events when public schools invited clergy to deliver invocations and benedictions at events such as graduation,” according to Middle Tennessee State University.

    Katskee argued that the Court should send the case back to the Ninth Circuit for the application of the Lemon Test or the Coercion Test. Clement claimed, considering that the district has never explicitly stated that it was concerned about coercion, that the Supreme Court should potentially eliminate the Lemon Test altogether. “I think the fact that school districts continue to make this mistake even though you have said over and over and over again that tolerating private religious speech is not endorsement is an excellent, excellent reason to be as emphatic as possible in overruling endorsement cases. If it requires formally overruling Lemon and the endorsement tests that come from that, I think that would be very helpful,” he said.

    Justices are expected to decide on the matter at the end of June. The case is the Kennedy v. Bremerton School District, No. 21-418 before the Supreme Court of the United States.

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