Yesterday, the Supreme Court affirmed that public-school teachers and coaches don’t give up their constitutional rights when they accept their jobs.
Yesterday, the Supreme Court affirmed that public-school teachers and coaches don’t give up their constitutional rights when they accept their jobs.
O n Monday morning, the Supreme Court vindicated a Christian football coach who was fired because he’d prayed on the field after games. Once again, government-led thought police have tried to muzzle a person of faith; once again, the Court has stopped them.
The victor in Monday’s case, Joseph Kennedy, was an assistant football coach at Bremerton High School in Bremerton, Wash. His Christian faith inspired him to “give thanks through prayer” at the end of each game. How did he manifest this gratitude? By kneeling down on the 50-yard line to say a short prayer when the game finished.
Kennedy prayed after games in this manner for seven years before school-district officials silenced him. They started by opening an investigation. They then amended the school district’s policies to enact a sweeping new ban on “demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” As an “accommodation,” they told Kennedy that he could pray after games in a “private location within the school building, athletic facility, or press box.”
When Coach Kennedy continued his private prayer on the field after games, the district placed him on administrative leave. After the 2015 season ended, district officials issued a poor performance evaluation that advised against rehiring him. He has not returned to the field since, but he has not caved in to his “accommodating” bosses, either. Instead, he’s stood up to the Bremerton School District’s authoritarian tactics, suing for his constitutionally guaranteed rights to free speech and free exercise of religion. And after losing in both the lower district court and the court of appeals, he’s brought his case to the Supreme Court — and won.
Justice Neil Gorsuch wrote the opinion for the Court’s 6–3 majority, holding that both the free-exercise and free-speech clauses of the First Amendment protect Kennedy’s right to pray. “The Constitution and the best of our traditions,” Gorsuch wrote, “counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
Monday’s decision clarified three important principles:
First, courts must be particularly vigilant when government restricts rights that are doubly protected by the First Amendment. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities,” Gorsuch observed. This is an important point, as next term the Court will again review the issue in the case of a Christian wedding-website designer in Colorado. Lower courts told the designer, Lorie Smith, that to avoid violating the state’s anti-discrimination law, she must use her creative talents in the service of couples celebrating same-sex weddings. Smith, who holds traditional religious beliefs regarding marriage, sued.
Second, public-school teachers and coaches don’t give up their rights under the Constitution when they accept their jobs. It’s true that the government, in its role as employer, has more power to restrict the speech of its employees than it does to restrict the speech of other Americans; after all, government employees act on the government’s behalf. But when an employee’s expression falls outside their official job duties, it is protected speech. Americans for the Separation of Church and State, the anti-religious-freedom advocacy group representing Bremerton, argued that Coach Kennedy could be silenced because he was still acting in his official capacity as a coach when he prayed after games. The Court’s majority, along with the fans who attended Bremerton High School football games, understand things differently: Pre-game talks and coaching during the game are government speech, just like instruction during the school day, but Coach Kennedy’s prayer after games had ended was his own private expression. “Simply put: Mr. Kennedy’s prayers did not ‘ow[e their] existence’ to Mr. Kennedy’s responsibilities as a public employee,” Gorsuch explained. “To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”
Finally, the Court explained that a “natural reading” of the First Amendment suggests that free speech and the free-exercise and establishment clauses “have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.” The Court also reaffirmed that government-permitted religious expression is not necessarily government-endorsed religious expression. This may seem like a pretty straightforward idea. For years, however, school officials have mistakenly thought that the establishment clause required them to silence any trace of religious belief — and some of them were disturbingly enthusiastic about doing so. The Court also quickly dismissed Bremerton’s claim that it was concerned its students may be coerced to join in prayer: “Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
It’s been almost seven years since Coach Joseph Kennedy has been part of the coaching staff at Bremerton High School. Regardless of whether he returns to the football field this fall, his defense of prayer and of the guarantees of the Constitution has now produced a major victory worth celebrating.