Coach Kennedy’s case arrives at the Supreme Court
Erin Hawley | The Constitution protects religious actions as well as beliefs
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Last week, in Kennedy v. Bremerton School District, a majority of the justices on the U.S. Supreme Court appeared poised to hold that Americans have the right to live and work according to their faith convictions. The case involves Joe Kennedy, a former high school assistant football coach who is a devout Christian. Kennedy believed he needed to kneel and say a quiet prayer of thanks at the 50-yard line after each game—win or lose. School administrators in Bremerton, Wash., suspended him and later fired him from his job because he refused to move his personal religious expression behind closed doors. But under the First Amendment to the U.S. Constitution, school employees do not check their religious liberty rights at the schoolhouse door.
For years, Kennedy had prayed quietly after Bremerton High School football games. That is, until his employer, the Bremerton School District, sent him a letter saying he violated school policy on religious activities. The letter, at first, convinced Kennedy to abandon his practice. After the next game, instead of following his convictions, he skipped his postgame prayer. But on the drive home, he felt like he’d broken his commitment to God. Kennedy then turned his car around, returned to the empty field, and knelt in prayer on the 50-yard line.
Once Kennedy resumed praying after games, often joined by players and spectators, the district instituted a new ban, prohibiting any “demonstrative religious activity” observable by students. It offered to “accommodate” Kennedy’s religious beliefs—by sequestering him. He could pray but only in secret, hidden away inside the school or the press box where no one could observe him. When he instead prayed on the field, as he always had, the district issued its suspension and eventually terminated his employment.
The lower courts held that the school district was right to punish Kennedy for his religious expression. They found his prayer was unprotected “government” speech, and that even if the prayer was “private” speech, it was not protected by the First Amendment because observers might believe the school district had endorsed his prayer.
The lower courts were wrong. Kennedy’s private religious expression at the end of a football game was not government speech. As Justice Samuel Alito pointed out at an earlier stage in the case, if the First Amendment did not protect Kennedy’s conduct, then religious expression as personal as bowing one’s head over Friday’s beef stew could be punished as “government speech.”
Further, just because a teacher or coach says something on school grounds does not mean students will automatically associate the school with the statement. The Supreme Court has long held that the government does not endorse everything a government employer, like a teacher, says. Indeed, as both Justices Neil Gorsuch and Brett Kavanaugh noted during oral arguments, the Supreme Court no longer uses the so-called “endorsement” test because it is insufficiently protective of religious liberty.
In one of the most famous of Old Testament accounts, jealous government officials convinced King Darius to sign a decree making it illegal to bow down to anyone—save King Darius himself—for 30 days. Daniel, knowing about the decree, went home, climbed the stairs to his upper chamber, and got down on his knees to pray in front of a window wide open and facing Jerusalem. (Spoiler alert: Daniel was thrown into the lion’s den and survived.)
More recent history, too, has shown the proclivity of government to silence religious expression. Oliver Cromwell, for instance, infamously promised religious “freedom” to Catholics in Ireland: “As to freedom of conscience, I meddle with no man’s conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.”
In the face of such historical edicts, our Founders understood that the “right to be religious without the right to do religious things would hardly amount to a right at all,” noted Justice Gorsuch in Espinoza v. Montana Department of Revenue. In fact, in the text of the Constitution, the Framers expressly chose to substitute a right of “free exercise” for a right “of conscience,” making it clear that the free exercise clause in the First Amendment protects conduct in addition to beliefs.
Long ago, Daniel refused to compromise his faith in God—even a little bit. He didn’t shut the window or draw the curtains. He refused to hide his worship of the living God. And God shut the lion’s mouths. Joe Kennedy similarly refused to compromise his faith in God. He continued his private prayers at the 50-yard line despite the school district’s attempt to relegate his personal religious expression to secret out-of-the-way places. His faithfulness eventually cost him his job. But the First Amendment to our Constitution guarantees the right not only to believe in God but also to live a faithful life.
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