U.S. Supreme Court Conservatives Lean Toward Football Coach In Prayer Case

The U.S. Supreme Court’s conservative majority on Monday appeared sympathetic toward an appeal by a former public high school football coach in Washington state who was suspended from his job for refusing to stop leading prayers with players on the field after games.

The justices heard oral arguments in the case pitting the religious rights of individual workers against the Constitution’s prohibition on the government endorsing a particular religion. The court’s 6-3 conservative majority has taken a broad view of religious liberty in numerous cases.

Joseph Kennedy, who served as a part-time assistant football coach in the city of Bremerton, appealed a lower court’s ruling that rejected his claims that the local public school district’s decision to suspend him violated his religious exercise and free speech rights under the U.S. Constitution’s First Amendment.

At issue is whether, as a public employee, Kennedy’s prayers and religious-infused speeches alongside players amounted to governmental speech, which can be regulated under Supreme Court precedents, or a private act separate from his official duties, which the First Amendment would protect.

Conservative justices signaled skepticism toward the idea that Kennedy’s actions could be viewed as government endorsement of religion. They noted that his prayers occurred after games and seemed to view them as not part of his official duties. Justice Brett Kavanaugh, for example, said Kennedy did not order his players to “huddle up” as he would do during his normal coaching duties, meaning they were not required to join in.

Fellow conservative Justice Samuel Alito questioned whether the school district specifically targeted religious speech, wondering whether Kennedy would have been disciplined for waving a Ukrainian flag to protest Russia’s invasion.

“What reason is there to believe that you would have treated that case the same way?” Alito asked.

Liberal justices questioned Paul Clement, the lawyer representing Kennedy, about what kind of conduct by school employees, including teachers, is part of their job duties, and can therefore be regulated, and what can be viewed as private speech.

Justice Elena Kagan indicated that what Kennedy is asking for runs up against Supreme Court precedents, which have said schools can discipline teachers for activity that “puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to.”

Even if it is clear a teacher is not speaking on behalf of the school district, coercion could be present, Kagan added.

“He’s the one who’s going to give me an ‘A’ or not,” Kagan said, speaking generally of teachers.

Clement said there was no evidence any students were coerced and that the school district was concerned only about being seen to endorse a particular religion.

Liberal justices also questioned why Kennedy needed to draw attention to his prayer by doing it on the field right after a game and later seeking publicity over the controversy.

The San Francisco-based 9th U.S. Circuit Court of Appeals last year ruled against Kennedy, finding that local officials would have violated the First Amendment’s ban on government establishment of religion if they let his actions continue.

Kennedy served as an assistant football coach at his alma mater, Bremerton High School, from 2008 to 2015. The district said Kennedy delivered post-game prayers to crowds of players and others for years until officials learned about the religious nature of these sessions in 2015.

The district, concerned that Kennedy’s actions could be perceived as an impermissible government endorsement of religion, notified him to stop the prayers while on duty, offering other private locations in the school as alternatives.

Kennedy initially appeared to comply, the district said, but later refused and made media appearances publicizing the dispute, attracting national attention. After repeatedly defying school officials’ demands, he was placed on paid leave from his seasonal contract and did not re-apply as a coach for the subsequent season.

Kennedy’s lawyers assert that he “lost his job” because of his actions, suing in federal court in 2016. Kennedy sought a court order to be reinstated as a coach, accusing officials of religious discrimination and violations of his free speech. Officials pointed out in court papers that Kennedy no longer lives in the school district and has moved to Florida, although he has said he would return if he got his job back.