The U.S. Supreme Court on Monday heard another church-state case in which the court’s conservative supermajority appears to be moving toward greater consideration for religious expression in public schools. The case was brought by a public high school football coach who claims the right to kneel and pray at the 50-yard line at the end of every game, joined by those of his players who wish to participate.
School officials in the city of Bremerton, Wash., have asked coach Joseph Kennedy to stop praying in midfield because it violates school policy. This policy is that school employees do not encourage or discourage religion. The school district and lower courts said Kennedy’s public prayer amounted to the school’s endorsement of religion, and Kennedy was placed on paid leave when he refused to quit.
Attorney Paul Clement, representing the coach, told judges on Monday that Kennedy’s 50-yard line prayers were “private speech” protected by the First Amendment guarantee of free speech and free exercise. of religion. The prayer, he argued, was a lot like a player signing himself off after making a touchdown.
Liberal Justices and Court Precedents
Judge Sonia Sotomayor asked a series of hypothetical questions about where to draw the line on religious speech for school employees: When, if ever, can teachers pray in class? Could the school ‘fire a coach who decides to put a Nazi swastika’ on his arm and claims it’s part of his religion when he goes to midfield to pray? she asked. “Could the school say no?”
Attorney Clément said it could be one of the “rare cases where you question the sincerity of religious belief”. But “assuming it is a sincere religious belief, there is no reason to discriminate” against prayer.
Judge Elena Kagan said whatever label you put on Coach Kennedy’s prayers is irrelevant. “Approval, coercion, I mean you have a lot of school boards trying to figure out exactly which box in the establishment clause [doctrine] to put this.”
Judge Stephen Breyer, not so subtly, questioned why the court should decide this case at this stage in light of the disputed facts in the case. “My problem with this case.” he says, is that the record would seem to indicate that the case “may be about facts and not really about law”.
Breyer, Kagan and Sotomayor belong to the liberal wing of the court and have no desire to overturn court precedents marking a clear separation between church and state. Court curators have a very different view. Instead, they want to focus on welcoming religion into public schools and other public institutions.
Tory justices seemed sympathetic to prayer
But, in this case, even Conservative Judge Brett Kavanaugh – a sports enthusiast and coach of his daughters’ teams – understood how Coach Kennedy’s behavior might be perceived by some parents. “Every player tries to be on the good side of the coach, and every parent worries about the coach’s favoritism in terms of starting lineup, playing time, college recommendations, etc.” he observed.
And yet Kavanaugh and fellow conservative judge Neil Gorsuch have repeatedly suggested that in their view now is the time for the court to “bury” some of its old precedents for good. The most significant is a 1971 case that prohibited the use of taxpayers’ money to pay parochial school teachers’ salaries and books because such spending would unconstitutionally entangle the government with religion. In legal terms, the case is seen as a ban on state endorsement of religion.
Attorney Clement, representing the coach, pointed out that while the court largely abandoned the endorsement test, school districts across the country still rely on it. “It’s a stubborn fruit,” he said. “I don’t think just sticking a pencil in there did the trick. I mean, you really have to cut it in half.”
Attorney Richard Katskee, representing the school board, responded that Kennedy’s actions had not been benign. The coach, he said, ran a media campaign, allowed state lawmakers to join him on the court and put students, some as young as 14, in danger. “Mr. Kennedy’s actions caused them to pray and also divided the coaching staff, unleashed vitriol against school officials and led to the storming of the field and the downfall of students.”
If the evidence supports this, “what should we do if we thought coercion was the proper test, but had not been applied by the school district or by the lower court?” asked Gorsuch.
Katskee said the court should send the case back to the lower court to investigate the issue of coercion.
“There is no evidence of coercion in this case,” replied Clément alarmed. He implored the court to settle the case, pointing out that Coach Kennedy had already “waited six years to get his job back”.
A decision in the case is expected by the summer.