Legal Docket - Prayer at the 50-yard line

MYRNA BROWN, HOST: It’s Monday, May 2, 2022. This is The World and Everything in It and we’re so glad you are along with us today. Good morning! I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Legal reporter Jenny Rough is here. Morning, Jenny!

JENNY ROUGH, LEGAL REPORTER: Good morning, Nick. Well, full docket today: we have analysis of oral argument in the Coach Kennedy case from last week. And we have two opinions, also from last week, that the Supreme Court handed down.

EICHER: Right, and obviously, Mary’s out today, but I know that you two are in the midst of researching and writing Season 3 of Legal Docket Podcast. Ten episodes this summer season diving deeply into cases we think you’ll find intriguing and useful.

ROUGH: Yes, and our team prays about which cases to cover—and how to cover them! Now, I did mention the Coach Kennedy case, that’s on our agenda for this summer. It’s known as Kennedy v. Bremerton School District. A case about public prayers. Specifically, a public-school football coach who was suspended from his job for praying on the 50-yard line after each game.

EICHER: And Jenny, I’m eager to hear you and Mary analyze the case after the decision comes down, presumably sometime next month. We were talking on Culture Friday about that case and John Stonestreet made the point that next to the “Dobbs” abortion case, “Kennedy” is second most important in his view for this term.

So we’ll get to your analysis of the oral argument in just a moment but first, those two opinions.

Number one: A 6-3 Supreme Court handed victory to a small business that provides physical therapy. In this case, a client who was deaf had asked the business to provide American Sign Language, but the business said no. The client took that as discrimination based on her disability, so she sued under the Rehabilitation Act and Affordable Care Act.

ROUGH: The question: could she recover damages for emotional distress under the statutes? Listen to this exchange at oral argument between Justice Elena Kagan and the attorney for the physical therapy business.

KAGAN: But we've long recognized, Mr. Shanmugam, that discriminatory harms are often stigmatic in nature, that they can be very deep and very wounding even if there is no economic harm of the kind that you're talking about.

SHANMUGAM: And yet, Congress has made the judgment under these foundational statutes that I just referred to that emotional distress damages are not available.

The majority justices agreed and said that because the statutes were silent about emotional damages, the business didn’t have clear notice that they might face liability for them. So the damages aren’t available.

EICHER: The second and final opinion was in a case in which Justice Amy Coney Barrett had to recuse and this is exactly what you don’t want: it ended in a 4-to-4 split over the meaning of a single word.

Here, a man named Bradley LeDure worked for Union Pacific Railroad Company. On the job, he fell and sustained serious injuries after slipping on a slick spot on the floor of a locomotive.

ROUGH: The governing law is the Locomotive Inspection Act with its safety regulations, like keeping floors free of slippery hazards. It’s deemed automatic negligence to violate those rules—but only if the locomotive is in use.

When LeDure fell, the locomotive was temporarily stopped in a railyard, running but idle. So it all boiled down to the statutory interpretation of the word use.

Chief Justice John Roberts tied use to purpose.

ROBERTS: Locomotives, their primary purpose is to move and move things. Suppose I have a car in the driveway. I wouldn't say the car is being used just because it's sitting there and I might want to use it later. Its primary purpose is to move some people around and not sit waiting, even if waiting ready to be used later on.

EICHER: The entire opinion in this case amounted to one sentence: “The judgment is affirmed by an equally divided Court.” In other words, when opinions end in a tie like this, the lower court’s decision stands. So LeDure loses here.

ROUGH: Now onto oral argument in the case of the praying football coach.

Mary Reichard and I interviewed Coach Kennedy last month on the steps of the Supreme Court in Washington. He told us how he became a football coach in 2008 and why he prays after each game.

He said the school district’s athletic director saw him out for a run one day and mentioned that the high school needed football coaches. The athletic director encouraged Kennedy to apply.

Before I play a bit of that interview, I want you to know it was a crummy day. It was raining, and you’ll hear the drops hitting the umbrella as we talk to the coach.

KENNEDY: On a Friday, they offered me the job, and I said, “Well give me the weekend, and let me talk with my wife, pray about it, and talk to my kids.” It was a weekend of a lot of discussion. And I saw the movie, right in the middle of the night, Facing the Giants. It was like a lightning bolt. I don’t know if God always answers questions. Most of the time, He seems to just ignore me. But He answered that question. It was clearer than anything, saying I called you to coach. I was on my knees saying, I’m all in. Just like in the movie, I’m going to give you the glory after every football game, win or lose.

For seven years, Kennedy knelt midfield and prayed after each game. At times, players from his team joined him. And some players from the opposing team, too.

But in 2015, the school district asked Kennedy to stop that practice. Authorities said they were concerned it could lead to a lawsuit that would accuse the school of promoting religion and that it would violate the establishment clause.

Remember, Bremerton is a public school. Coach Kennedy continued to kneel and pray after the games, and so the school district placed him on paid leave. When the season ended, Kennedy didn’t apply to renew his contract.

Now, the situation did lead to a lawsuit.

But it was from the coach and it wasn’t about the establishment clause of the First Amendment. His claim is that the school violated the other clauses of the First Amendment: his rights of free speech and the free exercise of religion.

But the lower court sided with the school. It held that Kennedy’s prayer occurred during his official job duties. So it amounted to government speech and therefore could be regulated. In other words, his prayer lacks First Amendment free-speech protection.

The lower court agreed that the school district was right to be concerned that allowing the prayer could be a violation of the establishment clause. The Ninth Circuit court of appeals affirmed. And Kennedy appealed to the U.S. Supreme Court.

Here’s lawyer Paul Clement last week arguing on his behalf.

CLEMENT: When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own. That private religious expression was doubly protected by the Free Exercise and Free Speech Clauses.

Kennedy’s free-speech claim will boil down to whether the prayer was his own, personal speech or part of his job. If part of his job, that claim fails. Here’s Justice Clarence Thomas’ straightforward take on that matter:

THOMAS: Well, we know it's not a part of his job, especially since the school district didn't know anything about it initially and it objected to it. So it can't be a part of his job.

But Justice Sonia Sotomayor didn’t think the lines were so clear. She and Kennedy’s lawyer agreed that a public school teacher couldn’t pray after the bell rings at the beginning of class because it’s during a time she has instructional duty. Wasn’t that true for the coach, too? Even his own briefs said his duties extended after the game.

SOTOMAYOR: He had an obligation to remain behind for two hours after the game finished. That was part of his duties. He had a duty to make sure that he escorted all the players off the field. He had a duty to make sure the other team got off the field. He had a duty to do a post-game wrap-up both with the players and the coach. He had a duty to clean up and to make sure that the gym was left in good order.

The second question centers on an endorsement analysis. The school claims it must prohibit the prayer to avoid a violation of the First Amendment’s establishment clause. Coach Kennedy argues that’s misguided. But the justices expressed concern over whether the students felt coerced to join the prayer.

Lawyer Richard Katskee picked up on that when he argued on behalf of the school district.

KATSKEE: Some of these kids were just 14 years old. Mr. Kennedy's actions pressured them to pray. If a math teacher knelt and said audible prayers in class just before the bell, the school district could act. Coaches have far more power and influence, especially at the time and place of those traditional post-game speeches.

But Justice Brett Kavanaugh said this case seems different than in prior cases where the court has dealt with a question of coercion.

KAVANAUGH: On the coercion side, there are different forms of coercion, as you've been talking about. There's actual you are compelled to say the prayer. That's not happening here. You're compelled to be present at an event where prayer will be spoken. But I think you're not saying that here either. You're saying there's kind of an implicit peer pressure, subtle coercion, implicit coercion.

He wasn’t convinced those other cases should be extended to cover the more indirect circumstances here.

A significant case for many reasons. A decision could clarify whether an old court opinion from 50 years ago still applies to religion cases. The high court no longer uses it and has criticized it, but lower courts still apply it.

Oral argument lasted for two hours instead of the typical time limit of sixty minutes. Lots more to unpack. We’ll do that when the opinion comes out, and again, this summer on the Legal Docket podcast, Season 3.

For now, that’s this week’s Legal Docket. I’m Jenny Rough.

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