Tuesday, the US Supreme Court heard the case of Kennedy v. Bremerton School District. It is a crucial case because it places the right to free exercise of religion in direct opposition to the modernist and atheistic proposal that “separation of church and state” is basically anything the state says it is.
The central figure in the case is Joseph Kennedy, a veteran and football coach at Bremerton High School near Seattle, WA. The extended blockquote is from the left-leaning but indispensable SCOTUSBlog.com.
From 2008 until 2015, Kennedy worked as a part-time coach for the school district, on a year-to-year contract. He initially prayed alone at midfield after each game, but some players later asked to join him; Bremerton players also sometimes invited members of the opposing team to join them.
In September 2015, the school district learned that Kennedy was praying on the field when a coach from an opposing team told the Bremerton principal about Kennedy’s prayers. That phone call prompted the athletic director to speak with Kennedy and express his disapproval when Kennedy prayed on the field after a game. After his conversation with the athletic director, Kennedy posted on Facebook that he thought he might have “just been fired for praying.”
The phone call also led the school district to send Kennedy a letter on Sept. 17 regarding the prayers. The letter reiterated that student prayers should be “entirely and genuinely student-initiated,” and it stressed that Kennedy should not do anything that could be seen as an endorsement of those prayers. Kennedy himself, the letter explained, could continue to give motivational speeches, but those should be exclusively secular. If Kennedy prayed, the letter noted, it should “not interfere with job responsibilities” and should be separate from players.
In the wake of the Sept. 17 letter from the school district, Kennedy temporarily stopped praying on the field after games – although on one occasion he did return to the stadium to pray after leaving to drive home.
On Oct. 14, Kennedy – who had by then retained a lawyer – told the school district that he intended to resume his practice of praying by saying a private, post-game prayer at the 50-yard line. Two days later, after a game, Kennedy offered a brief, silent prayer at midfield, with players and coaches from the opposing team and members of the public and the media around him. The school district portrays the atmosphere following the Oct. 16 game as chaotic, with spectators and reporters knocking down members of the marching band in their efforts to join Kennedy at midfield. The Bremerton head coach, Nate Gillam, was the target of profanity, and he feared he might “be shot from the crowd.”
The school district sent Kennedy another letter on Oct. 23. That letter told him that his actions at the Oct. 16 game had violated the district’s policy, and it offered other options for him to pray after games – for example, privately, or after the crowd had left. When Kennedy continued to pray after two games on Oct. 23 and Oct. 26, the school district placed him on administrative leave.
When the season ended, Gillam – who himself resigned after 11 years at Bremerton – recommended that Kennedy’s contract not be renewed for the following season. Kennedy did not apply for a job for the 2016 season. Instead, he went to federal district court, where he argued that the school district’s actions violated his rights under the free speech and free exercise clauses of the First Amendment. The district court declined to give him back his job while the litigation continued, reasoning that his prayers were not protected by the First Amendment because he was acting as a “public employee.” After the U.S. Court of Appeals for the 9th Circuit upheld that ruling, Kennedy went to the Supreme Court in 2018, asking the justices to intervene.
There are a lot of issues here that muddy the waters. The prayer issue became a national one, spectators took sides, and Kennedy carried on his fight with the Bremerton school officials in the media.
Yesterday, all of those issues came to a head in the US Supreme Court. This is how Vox.com’s legal cocker spaniel, Ian Millhiser, frames it: The religious right had a great day in the Supreme Court. Milhiser is highly excitable whenever it looks like the US Constitution will prevail in a Supreme Court case. I imagine him leaving tiny puddles all around Vox’s offices. But his subtitle, The justices may take a big bite out of the First Amendment’s establishment clause, or they might take a simply enormous bite out of it, might be accurate.
What appeared to be at issue was whether the Supreme Court case the school district used to defend its decision to fire Kennedy, Lemon v. Kurtzman, is even precedent.
Justice Samuel Alito was dubious about whether all of the facts that Katskee cited mattered to the court’s analysis. He acknowledged that the case was complicated, but for him it boiled down to an employment discrimination case. And in such cases, he told Katskee, courts look at the reasoning – here, the school district’s professed desire to avoid violating the establishment clause – behind the employer’s actions. If the employer’s actions were unlawful (and Alito seemed to suggest that the school district’s conduct had been), he explained, then the employee wins.
Katskee reminded Alito of the “enormous pile of evidence that the school district acted on other concerns” when it suspended Kennedy – for example, it was worried about student safety and the possibility that spectators would storm the field.
Alito was unconvinced, asking somewhat incredulously whether the school district is arguing that if an employer gives an unlawful reason, it can still prevail because it could have given legal reasons for its conduct.
Justice Brett Kavanaugh also appeared skeptical. The school district’s “sole reason” for taking action against Kennedy, he noted, was to avoid violating the establishment clause by endorsing religion. But the Supreme Court had not applied the Lemon test – the three-part test, named after the court’s 1971 decision in Lemon v. Kurtzman, for establishment clause cases – “in two decades,” Kavanaugh observed. And Kennedy’s case seems to go beyond Santa Fe Independent School District v. Doe, the court’s 2000 decision holding that student-led, student-initiated prayer over a loudspeaker at football games violates the establishment clause, Kavanaugh told Katskee. “I don’t see why the Court shouldn’t say,” Kavanaugh said later, that it won’t extend Santa Fee beyond prayers in the locker rooms or huddles.
Justice Neil Gorsuch also raised questions about the school district’s reliance on the Lemon test. What should the justices do, he asked Katskee, if they believe the school district and the courts below should have focused on concerns about coercion, rather than endorsing religion?
At that point, the school district’s attorney requested the Supreme Court send the case back to lower courts so the school district could come up with some other reason to fire Kennedy.
The strongest argument presented against Kennedy was one of implicit coercion voiced by Kavanaugh.
I guess the problem at the heart of it is you’re not going to know. 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—the suspicion by parents that the reason Johnny’s starting and you’re not is [because] he was part of the prayer circle. I don’t think you can get around that. That’s a real thing out there. That’s going to be a real thing in situations like this. I don’t know how to deal with that, frankly.
At the end of the day, there were three solid votes for overruling two anti-religion precedents, Lemon v. Kurtzman and Lee v. Weisman. Kavanaugh seems to be a sure yes despite his musing about coercion. Amy Coney Barrett asked non-committal questions, but observers think she is solidly for Kennedy. Roberts seemed disturbed by Kennedy’s publicity efforts, but, as far as I know, being an advocate for your cause isn’t illegal.
Roberts will probably vote with the majority to avoid a 5-4 decision and prevent Alito from writing an opinion taking fire and sword to the anti-religious animus progressives have tried to bake into our jurisprudence.
A victory for Coach Kennedy would be a great bookend to another case that was heard last session (see The Left Goes Nuts as the Supreme Court Seems to Signal That Their Monopoly on Propagandizing Kids Is at an End) that will probably forbid state discrimination against religious schools.
The issue of religion in public schools is a sensitive one, but our jurisprudence has swung way past the point of preventing proselytizing. Instead, it has gone in the direction of permitting the teaching of atheism, or at least anti-Christianity, while prohibiting an opposing view. If we have to err between young men and women fearing discrimination for not engaging in prayer and fearing discrimination for not choosing pronouns and confessing there are 60 or 70 or whatever genders, then as a society, we are better off erring on the side of prayer.