The Supreme Court ruled Monday that a school board in Washington state discriminated against a former football coach when it disciplined him for postgame prayers at midfield, the high court’s latest decision favoring the protection of religious faith over concerns about government endorsement of religion.
“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,” Gorsuch wrote. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected” by the Constitution.
Gorsuch was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett. Justice Brett M. Kavanaugh joined most of the opinion.
The court’s three liberals dissented, as they had in last week’s ruling that Maine cannot bar religious schools from receiving public tuition grants extended to other private schools.
Justice Sonia Sotomayor wrote that the majority “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”
Joined by Justices Stephen G. Breyer and Elena Kagan, Sotomayor added: “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.”
“This is a tremendous victory for Coach Kennedy and religious liberty for all Americans,” said Kelly Shackelford, president of the First Liberty Institute, which represented Kennedy. “Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
The group also offered a statement from Kennedy: “This is just so awesome. All I’ve ever wanted was to be back on the field with my guys … I thank God for answering our prayers and sustaining my family through this long battle.”
Americans United for the Separation of Church and State, which represented the Bremerton school district, said Monday’s ruling “gutted decades of established law that protected students’ religious freedom.”
“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,” the group’s president, Rachel Laser, 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.”
The case raised questions about the ability of public employees to live out their faith and the government’s competing responsibility to protect students from coercion and to remain neutral on the subject of religion. As in many of the court’s recent cases, it called for interpretation of how the Constitution’s establishment clause, which forbids government endorsement of religion, interacts with its free speech and free exercise clauses, which prohibit government restraints on religious observance.
The Roberts court has been overwhelmingly protective of religious rights, and advocates said the case was another opportunity to transform decades of Supreme Court jurisprudence that started 60 years ago with the admonition that government cannot organize and promote prayer in public schools.
The decision in Kennedy’s case made for a clean sweep for religious rights this term.
Besides the Maine case, the court has ruled that a death-row inmate must have access to a spiritual adviser at the time of execution, and that Boston is not free to reject a Christian group’s request to fly its flag at city hall for fear it would appear to be an endorsement of religion if other groups are given the privilege.
Kennedy’s case pitted red states against blue ones and some professional football players against others, divided constitutional experts and drew more friend-of-the-court briefs than any case at the Supreme Court this term, except for the controversies over abortion and gun control.
It also split the U.S. Court of Appeals for the 9th Circuit, where a slim majority of judges ruled for the school district. They cited a Supreme Court precedent that limits the speech rights of on-duty public employees and said the district was warranted in worrying that allowing Kennedy’s public prayer would violate the Constitution’s prohibition on government endorsement of religion.
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, including former president Donald Trump and Fox News pundits.
For years, Kennedy took a knee and bowed after games — and nothing came of it. But then some of the BHS Knights decided they would pray as well. 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 when an opposing coach told Bremerton’s principal that he “ ‘thought it was pretty cool how [the district] would allow’ Kennedy’s religious activity,” it said in its court brief.
The homecoming game was the culmination. Kennedy was joined in his postgame prayer by members of the public, a state legislator and the media. “Spectators jumped over the fence to reach the field and people tripped over cables and fell,” the district said in its brief. “School band members were knocked over.”
The next week, a group of Satanists demanded equal access to the field.
Eventually, Kennedy was suspended with pay. His contract was year-to-year, and for the first time, he received a negative evaluation and a recommendation that he not be rehired. Kennedy sued to get his job back.
If the case divided Bremerton, a small city across the Puget Sound from Seattle and the lower court judges who considered Kennedy’s suit, the chasm was just as great at the Supreme Court. The majority and dissenters had drastically different takes on even the facts.
Gorsuch characterized Kennedy’s actions as simply offering a “quiet prayer of thanks.”
“Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters,” Gorsuch wrote. “He offered his prayers quietly while his students were otherwise occupied.”
Sotomayor responded that Kennedy “made multiple media appearances to publicize his plans to pray at the 50- yard line, leading to an article in the Seattle News and a local television broadcast about the upcoming homecoming game.” She included in her opinions photos of Kennedy holding football helmets in the air, surrounded by kneeling players both from his team and his opponents.
Gorsuch said governments may curb the speech rights of employees if it appears they are speaking in an official capacity. But Gorsuch said that was not the case in Kennedy’s postgame prayers.
“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,” Gorsuch wrote.
Governments cannot provide a “script” for their employees, or forbid every expression of faith. Otherwise, “a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
Gorsuch said that Kennedy gave up what had been a school tradition of locker room prayers and that there was no evidence he had coerced players.
Sotomayor replied that that was unnecessary. “Students face immense social pressure,” she wrote. “Students look up to their teachers and coaches as role models and seek their approval. Students also depend on this approval for tangible benefits … from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”
The lower courts, Gorsuch said, had relied on a test criticized by religious conservatives that calls on judges to consider whether actions by the government might appear to a reasonable observer as endorsement of religion.
That test grew out of the court’s 1971 decision in Lemon v. Kurtzman. But Gorsuch said in his opinion that “this Court long ago abandoned Lemon and its endorsement test offshoot.”
Sotomayor again disagreed. She said Monday’s decision overruled that precedent.
The case is Kennedy v. Bremerton School District.