Legal Docket - The praying football coach

MARY REICHARD, HOST: It’s Independence Day this Monday, July 4th, 2022. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

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

The Honorable Ketanji Brown Jackson is now the 104th Associate Justice of the Supreme Court of the United States.

She took her oath of office last Thursday.

BROWN JACKSON: I Ketanji Brown Jackson do solemnly swear...

Leading her through it was the justice whose seat she’ll be taking, Justice Stephen Breyer. He administered one of the two oaths she took.

JUSTICE STEPHEN BREYER: And that I will faithfully and impartially

JACKSON: And that I will faithfully and impartially

BREYER: discharge and perform
BROWN JACKSON: discharge and perform

BREYER: all the duties

JACKSON: all the duties

BREYER: incumbent upon me

JACKSON: incumbent upon me

BREYER: as an associate justice of the Supreme Court of the United States.
JACKSON: as an associate justice of the Supreme Court of the United States.

REICHARD: Also last week, the Supreme Court handed down the final several opinions.

We’ll cover one of the biggest religious liberty decisions this term: Joseph Kennedy v. Bremerton School District: the case of the praying football coach.

Legal reporter Jenny Rough is here now to fill us in on the details of that opinion. Hi, Jenny.

JENNY ROUGH, LEGAL REPORTER: Hi, Mary. The Supreme Court held 6-3 that a public-school football coach has a constitutional right to say a personal prayer midfield after a game. In doing so, the court reversed the decision of the lower courts.

Interesting trivia: this case can be traced back to the 2006 movie, Facing the Giants.

ANNOUNCER: 28 to 10 is the final score. The Princeton Heights Panthers take it to the Shiloh Eagles.

SHILOH FOOTBALL PLAYER: I knew we were gonna get killed tonight!

In the movie, football coach Grant Taylor spends the season helping his players understand their purpose in life—on and off the field. Not to live merely for winning games and earning trophies that will collect dust, rather, to love God, work hard, respect others. No matter the circumstances.

After a tough loss, the team gathers in the locker room and the coach reminds them of what they’ve learned.

COACH TAYLOR: Your effort was good tonight. You’ve got nothing to be ashamed of. You played hard. The Shilohs had the best season they’ve had in a long time. God has been good to us this year.

SHILOH FOOTBALL PLAYER: Guys, Coach is right. We got to praise God when we win. And praise Him when we lose.

COACH TAYLOR: Let’s take a knee.

That movie inspired Joe Kennedy to take a job as a high school football coach in Bremerton, Washington, back in 2008. It also inspired him to say a prayer of thanks to God after every game, win or lose.

REICHARD: Still, there are big differences between the movie and the real-life drama that played out in the state of Washington and led to a Supreme Court case.

The football coach in the fictional movie worked for a private, religious high school. Coach Kennedy worked for a public institution, Bremerton High School. He was a state government employee.

While on the job, he and other public-school employees can attend to personal matters. For example, text a spouse or check a sports score.

And, according to Kennedy, say a prayer.

ROUGH: For seven years, Kennedy prayed after each game. Over time, most of the team joined him. Even players from opposing teams would join in. Sometimes Kennedy included a motivational speech mixed in with his prayers. Kennedy also held pre- and postgame prayers with his team in the locker room.

In the fall of 2015, a coach from another school mentioned Kennedy’s prayers to Bremerton’s principal. The coach was admiring the practice, not complaining.

Still, it set off alarm bells. The school feared Kennedy’s practice looked like government endorsement of a particular religion. Officials thought it was a violation of the establishment clause of the U.S. Constitution.

REICHARD: So the school superintendent asked Kennedy to stop his motivational talks that included religious references and asked that he stop leading prayers.

Kennedy complied with both of those requests. But he continued to offer a personal prayer of thanks after the games. He’d walk out to the 50-yard line, kneel, and bow his head.

Media coverage escalated and after one game in particular, adults joined Kennedy on the field and chaos broke out.

The school district put Kennedy on paid administrative leave.

ROUGH: Some time later, Kennedy sued the school district for violating his First Amendment rights to the free exercise of religion and free speech.

Justice Neil Gorsuch wrote the opinion in favor of Kennedy.

First, Gorsuch said, the school violated Kennedy’s right to exercise his religion because school policy wasn’t neutral. It targeted a religious practice. Other coaches could make personal calls or attend to private matters after the game.

REICHARD: Second, the court held, the school violated Kennedy’s right to free speech.

That was a major focus during oral argument back in April. Was the prayer Kennedy’s own personal speech or was it part of his job that gave the school power to restrict him?

Justice Sonia Sotomayor thought Kennedy was speaking on behalf of the school district when he prayed.

KENNEDY: 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.

REICHARD: But lawyer for Kennedy Paul Clement argued otherwise:

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.

ROUGH: And also on this point, the Supreme Court agreed with Kennedy. During the time Kennedy prayed, he wasn’t giving instruction or reviewing game plans or doing any duty the district hired him to do.

However, even that didn’t fully resolve the case. The court had to address one last point.

Even though Kennedy’s prayer was doubly protected by the First Amendment’s free exercise and free speech clauses, the school argued it must suspend Kennedy’s prayers. Otherwise it would violate the establishment clause.

REICHARD: It’s at this point that the burden of proof shifted to the school to show its reasons to overcome Kennedy’s constitutional protections.

But the parties dispute which legal test applies to determine whether the school met its burden of proof.

Ultimately, the court said it didn’t matter. The school couldn’t meet its burden under any test.

The school also argued that Kennedy coerced students to join him in prayer. Here’s the school district’s lawyer, Richard Katskee, at oral argument:

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.

That didn’t fly with the majority justices, either. The evidence simply didn’t support that assertion. The opinion mentions that after Kennedy stopped his locker-room prayers, not a single Bremerton player joined Kennedy postgame on the 50-yard line.

ROUGH: Now for the dissenting justices: Justice Sonia Sotomayor (who wrote the dissent) joined by Justices Stephen Breyer and Elena Kagan.

They noted that Kennedy made multiple media appearances announcing his intention to pray: That he was still on the job and in uniform. That a reasonable observer would have seen him as a public employee continuing his history of praying with players. So, they say, coercion was implied.

The dissent takes the view that the establishment clause commands a separation of church and state. And that there’s not enough of that separation here.

But the majority held that the establishment clause doesn’t require the government to “purge” everything religious from the public square. Doing so would wrongly result in a school’s ability to “fire a Muslim teacher for wearing a headscarf … or prohibit a Christian [assistant] from praying quietly over her lunch in the cafeteria.”

REICHARD: After the decision came down in his favor, Coach Kennedy told a CNN reporter he breathed a big sigh of relief.

KENNEDY: This is just a great day for every American. It really shows the diversity and inclusion of exactly what America is about. I think everybody has the exact same freedom. People of faith. People of no faith. Of different faith. That’s what America’s all about is just being able to enjoy our freedoms.

This case is complicated. Not only from a constitutional law perspective, but from a faith perspective.

ROUGH: In discussions about this case, Matthew 6 frequently comes up. That’s the passage in the Bible where Jesus gives his followers instruction on prayer—to do so secretly.

We’re going to do a deep dive into all these issues on Season 3 of the Legal Docket podcast. So please join us for that later this summer. You won’t want to miss it!

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

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