Friday night rights

In some corners of the country, faith and high school football go together “like peas and carrots,” as Forrest Gump would say.

However, as two recent court cases indicate, government-controlled entities want to keep them separated.

The more high-profile of those cases, Kennedy v. Bremerton School District, came before the Supreme Court in late April. Observers of the high court anticipate a decision in June.

In that case, Joe Kennedy, a former assistant coach at Bremerton High in Washington state, lost his job for praying on the 50-yard line after games. For seven seasons, inspired by the 2006 Christian film Facing the Giants, Kennedy faced the scoreboard, knelt briefly, quietly thanked God—win or lose—then left the field.

Players and coaches on his own team and others eventually took notice. When some asked to join him, Kennedy let them.

That is, until 2015, when Bremerton High’s athletic director caught wind of Kennedy’s prayers and expressed his disapproval. The local school district followed up with a letter instructing Kennedy to stop, which he did—temporarily.

Kennedy says his conscience ultimately compelled him to resume praying, and he notified the district of his intent to do so. After he followed through, the district placed him on administrative leave—legally, a de facto suspension—and declined to renew his contract after the 2015 season.

The district asserted that its actions were justified due to concerns about appearing to endorse a religious message—something the U.S. Constitution’s Establishment Clause prohibits public schools from doing. The district’s concerns were understandable: In 2000, the Supreme Court invalidated a Texas school district’s policy allowing student-led prayers before football games because such prayers appeared to have the school district’s stamp of approval.

Still, Kennedy’s case is distinguishable from the Texas case: The latter involved public prayers spoken over the school’s public address system on behalf of an audience including students who didn’t share the speaker’s religious views and whose attendance at games wasn’t necessarily voluntary. Kennedy, by contrast, prayed at a time when players, fans, and others in attendance were free to leave and typically were dispersing.

Even granting that Kennedy wore Bremerton High’s colors and insignia and was in a highly visible place when he prayed, his act of quiet post-game prayer was originally meant to be a personal one. Moreover, while the Establishment Clause prohibits endorsement of religion, it also prohibits hostility toward acts of faith—a big reason why supporters of religious liberty are rooting hard for the Supreme Court to side with Kennedy.

“If students see a teacher engaging in a demonstrative religious activity (as things stand now), that teacher could lose his job,” said Jeremy Dys, an attorney with the religious-rights law firm First Liberty, which represents Kennedy. “That’s not what the First Amendment means.”

Unlike Kennedy’s case, the other recent school prayer case does involve pregame prayer to a wider audience: Cambridge Christian School of Tampa sued the Florida High School Athletic Association in 2015 after the FHSAA refused to let CCS pray over the stadium’s loudspeaker before a state championship game against another Christian school.

“It hurt both schools’ communities pretty dramatically,” Dys said. “A prayer spoken without amplification from the 50-yard line at the Citrus Bowl in Orlando is not something you can hear from the stands. That place is big enough that a mom and dad can’t pray with their kid any other way but over the stadium’s loudspeaker.

“The FHSAA prevented moms and dads at the biggest game of their children’s career from sharing a moment of solidarity with their kids before the contest had begun.”

A federal district court in Florida sided with the FHSAA—not a government entity per se, but one whose operations so depend on the involvement of public school officials that constitutional principles apply—in early April: The court held that as long as the association, the speaker for purposes of the contest, controlled the PA system, it had no obligation to let Cambridge Christian use it. First Liberty is appealing the ruling to the U.S. Court of Appeals for the Eleventh Circuit, which previously reversed the district court’s earlier dismissal of the case.

Dys said the FHSAA’s decision to deny Cambridge Christian access to the loudspeaker for a pregame prayer makes little sense—and not just because, pursuant to sponsorship deals, the association used the PA system to broadcast promotions for “breastaurant” chain Hooters and alcoholic beverage producer Anheuser-Busch to a largely Christian audience.

The attorney pointed out that in 2018, the FHSAA invited crowds at its spring sports championships to participate in a moment of silence honoring victims of the Marjory Stoneman Douglas High shooting, which occurred earlier that year.

“The FHSAA invited the entire crowd to engage in what amounts to a religious act,” Dys said. “But two Christian schools praying before a football game? They won’t allow that.”