Yesterday saw yet another big victory for religious liberty at the Supreme Court. And a win for high school football coach Joseph Kennedy. For kneeling after games on the 50-yard line and saying a quiet personal prayer, the school district placed him on administrative leave and advised against rehiring him.
Kennedy conducted his prayers for over seven years before the school district’s superintendent apparently learned of his practice in 2015 and tried to stop it. He initially prayed alone, but players would eventually ask to join him, to which he replied, “This is a free country. You can do what you want.” He also offered (in a tradition predating him) locker-room prayers and incorporated prayer or religious references into postgame motivational talks to his team, both practices he ended after being directed by the district to avoid such “religious expression, including prayer.”
There were ultimately several occasions on which the district ordered Kennedy to desist in his religious expression. The coach, trying to work with his employer, made the modest request to be able to offer a short prayer on the field while students were occupied with other activities such as boarding the bus or singing the school fight song, but the district would not budge. He was disciplined for saying such prayers, quietly and in the absence of his students, after three games. The record made clear that Kennedy was disciplined solely for persisting in such prayer, with the district admitting it was restricting his actions at least in part because of their religious character.
Writing for a 6–3 Court in Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote that the school had violated both Kennedy’s free exercise as well as his free speech rights. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities,” Gorsuch wrote. “That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.”
The Free Exercise Clause was implicated because the school was targeting the religious character of the coach’s actions and because it failed to set generally applicable standards. Other members of the coaching staff were permitted for brief periods after games “to do things like visit with friends or take personal phone calls.”
Kennedy’s prayer was private expression in his capacity as a private citizen, which was key to carrying his threshold burden to make his free speech claim. As the school district admitted, “Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities,” but he used that time to pray.
Since Kennedy met his threshold under both clauses, the school district needed to demonstrate that its restrictions served interests that would satisfy either strict scrutiny or a more lenient standard of review. The Court found that the district did not satisfy its burden regardless of which test applied.
The school district’s attorneys misconstrued Kennedy’s prayers as government speech that violated the Establishment Clause, which they argued trumped any protection they otherwise might have under the Free Exercise and Free Speech Clauses, and thus required the imposed restrictions. Yet as Gorsuch noted, the three clauses appear in the same sentence and “would seem to . . . have ‘complementary’ purposes, not warring ones.”
That describes the textual problem with the school district’s argument, also made by the three liberal justices in a dissent by Justice Sonia Sotomayor, that Kennedy was violating the Establishment Clause. “The Constitution does not authorize, let alone require, public schools to embrace this conduct,” Sotomayor asserted. According to that argument, Gorsuch countered, the Court should “adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.” The argument drew from the ahistorical test the Court used to apply, established by Lemon v. Kurtzman (1971). But Gorsuch noted that the Court “long ago abandoned” the defunct, ahistorical Lemon test and replaced that test with a command to interpret the Establishment Clause in light of its “original meaning and history.”
The district and the dissent also argued that because Kennedy was an authority figure, his students might feel coerced to pray alongside him—which none of them did during the three games for which he was disciplined. “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,” Gorsuch observed. What was coercive, of course, was the boorish behavior of school administrators who refused to make a simple accommodation.
Yesterday the Court struck the right balance between the various First Amendment interests that were implicated and added yet another case to its decade-plus stretch of decisions affirming the religious liberty protections guaranteed by the Constitution.
An important part of the Court’s message is that “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.’” Hopefully, after yesterday’s win in court, Coach Kennedy will have the opportunity to achieve many more wins on the football field.