High Court Backs Praying Coach in Religious Rights Battle

U.S. Supreme Court has ruled that a public school district violated the First Amendment by suspending a football coach who insisted on praying at midfield right after games.

The high court’s six justice conservative majority sided with Joe Kennedy, who is a practicing Christian, in his quest to overturn a Ninth Circuit ruling that the Bremerton School District in Washington state acted lawfully when it placed him on paid leave amid a contentious dispute over whether he could continue kneeling on the 50-yard line to pray immediately after games.

The justices concluded that Kennedy's prayers were a form of private religious observance that the school district had no right either to censor or to discipline him for performing.

"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," the majority held.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, filed a dissent.

The long-running case — which has featured both legal and factual disputes and is at its second stop at the high court — is rooted in Bremerton's decision in 2015 to yank Kennedy from his coaching duties.

The school district has argued in court briefs that it tried to no avail to find mutually agreeable accommodations that would have allowed Kennedy to pray after games in a more private way. The coach's contract expired while he was on suspension, with Kennedy and the school butting heads during the case about whether that amounted to a termination.

Kennedy his suit in 2016, alleging that the school trampled his constitutional rights as well as his rights under Title VII of the Civil Rights Act, which protects people from acts of religious discrimination at work.

The case first worked its way up to the high court in 2019 when the justices rejected Kennedy's appeal of a court order denying him an injunction that would have reinstated him and allowed him to continue his prayers in front of students.

But in denying certiorari the first time around, four conservative justices — Samuel Alito, Clarence Thomas, Gorsuch and Brett Kavanaugh — expressed interest in hearing the case down the line after some outstanding legal and factual issues were ironed out.

In early 2020, U.S. District Judge Ronald B. Leighton awarded Bremerton summary judgment.

While the judge said he was "sympathetic to Kennedy's desire to follow his beliefs," he held that the coach's right to free religious expression "must give way" to the public school's right to restrict religious activity to safeguard against a violation of the establishment clause, which bars a government body from favoring any religion over another.

A Ninth Circuit panel last year also sided with the school district, and the deeply divided appeals court subsequently declined to rehear the case en banc. The justices agreed to hear the case in January.

One of the key factual disputes that emerged during the case was whether Kennedy's prayers were in fact private and quiet displays of religious observance.

The coach asserted that they were, while Bremerton argued that his prayer ritual was conducted in his official capacity as a public-school employee.

Justice Gorsuch and the high court majority resolved that dispute in Kennedy's favor, concluding that the post-game period when Kennedy prayed was effectively a lull in his job responsibilities and that his prayers didn't fall within the scope of his duties as coach.

"During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters — everything from checking sports scores on their phones to greeting friends and family in the stands," Justice Gorsuch wrote. "We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the [school] district has acknowledged that its coaching staff was free to engage in all manner of private speech."

The majority also said it wasn't enough for the school district to assert that Kennedy was at all times a role model for students, saying that assertion "commits the error of positing an 'excessively broad job description' by treating everything teachers and coaches say in the workplace as government speech subject to government control."

"On this understanding, 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," the majority added.

As part of its ruling, Justice Gorsuch and the majority admonished courts against relying on a 1971 decision called Lemon v. Kurtzman, which laid out a multipart test for determining whether a law flouts the establishment clause.

While Justice Sotomayor said in her dissent Monday that the Lemon test was overruled by the majority, Justice Gorsuch without explicitly stating that the test was abrogated said the high court has long since "abandoned" it.

"In place of Lemon and the endorsement test, this court has instructed that the Establishment Clause must be interpreted by 'reference to historical practices and understandings,'" the majority held. "The district and the Ninth Circuit erred by failing to heed this guidance."

Kennedy's prayer ritual, the majority added, "did not come close to crossing any line one might imagine" that divides private religious expression protected under the First Amendment from "impermissible government coercion" of religious activity.

"Naturally, Mr. Kennedy's proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise," the high court majority said. "Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is 'part of learning how to live in a pluralistic society," a trait of character essential to "a tolerant citizenry.'"

Justice Sotomayor in her dissent chastised the majority, which she says "misconstrues the facts," for declaring Kennedy's prayers to be private and quiet.

"This decision does a disservice to schools and the young citizens they serve, as well as to our nation's longstanding commitment to the separation of church and state," Justice Sotomayor wrote.

Moreover, Justice Sotomayor said the majority improperly elevated the First Amendment's right to religious expression over its prohibition that the government does not establish a state-sponsored religion.

"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," Justice Sotomayor wrote. "In doing so, the court sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance. As much as the court protests otherwise, today's decision is no victory for religious liberty."

Rachel Laser, president and CEO of Americans United for Separation of Church and State, which represented Bremerton, said Monday that the high 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."

"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," Laser said. "As that line has blurred, public education, reproductive rights, civil rights and more have come under attack."

Kelly Shackelford, president for the First Liberty Institute and a member of Kennedy's legal team, called Monday's decision "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," Shackelford said. "We are grateful that the Supreme Court recognized what the Constitution and law have always said — [Americans] are free to live out their faith in public."

Paul D. Clement argued the case on Kennedy's behalf. Clement practiced at Kirkland & Ellis LLP when oral arguments took place, but news surfaced Thursday that Clement and another of Kennedy's attorneys, Erin E. Murphy, were leaving Kirkland & Ellis following the firm's decision to no longer handle gun rights cases.

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