AUDIO: “O Lord, Please Hear My Prayer” by the Moses Hogan Singers \ O Lord, please hear my prayer \ In the morning when I rise \ It's your servant bound for glory \ O dear Lord, please hear my prayer.
JERRY ROUGH, COHOST: As the late preacher and author John Stott once said, “Prayer is the very way God Himself has chosen for us to express our conscious need of Him and our humble dependence on Him.”
Today, we’ll meet a man whose simple prayers of need, dependence, and gratitude landed him at a place he’d never seen before … and didn’t recognize when he did see it for the first time. The Supreme Court.
JOE KENNEDY: Is this the Supreme Court?
JEREMY DYS: Yes. Glad you noticed.
KENNEDY: Well, I don’t know what it is. How’m I supposed to know?!
JR: Football fields, he knows. Green grass and clear markings … not a jumble of white marble federal buildings.
This is Joe Kennedy, high-school football coach. His postgame prayers are the subject of an oral argument at the highest court in the land and he’s in town with one of his lawyers, preparing.
We met Kennedy and his lawyer last April when he was there. Kennedy is dressed in jeans, a zip-up hoodie, and a blue Bremerton Football jacket. He’s in his early fifties. Keeps his hair short on top and buzzed around his ears. He greets me with a big bear hug and offers to carry my bag.
At first I wonder if this was an act. I don’t think so. Others have described him as a regular old Joe. And he does seem like a genuine guy whose life took an unexpected turn.
ROUGH: What does it feel like to be a party to a Supreme Court case? I mean, you’re going to go down in law books and stuff.
KENNEDY: You can’t get any more average than me. I’m just a high school football coach from Bremerton, Washington. Growing up my whole life I’ve never thought about the Supreme Court. I think I could tell you Roe v. Wade? I’ve just never followed it. And now I’m going to be part of it, either on the good side or the bad side. And hopefully it’s going to be the good one.
THEME: I Clarence Thomas...I Sonya Sotomayor...I Stephen Breyer, I Amy Coney Barrett…do solemnly swear, I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, and that I will well and faithfully discharge the duties of the office on which I’m about to enter, so help me God…[APPLAUSE]
JR: Welcome to Legal Docket. I’m Jenny Rough.
MARY REICHARD, COHOST: And I’m Mary Reichard. This podcast is from the creative team at WORLD Radio.
MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!
MR: Come with us inside the world of the Supreme Court as we talk to the people involved and think deeply about the most recent term’s disputes and decisions—and how they make a difference to your life.
MARSHALL: All persons having business before the honorable Supreme Court...
JR: Today, a case about faith and football.
MARSHALL: God save the United States and this honorable court.
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JR: Joe Kennedy used to work for the Bremerton School District in the state of Washington. That’s a public school, so he was a state government employee.
After football games, he went to the middle of the field to offer a prayer of gratitude. Kennedy says his prayers often went like this:
KENNEDY: Usually it was just, Lord, I lift these guys up for what they did out on the field. The battle that they fought. And how awesome it is to be part of it. It was just total thankfulness. I’m not a great prayer, so it was really quick.
MR: The school district thought allowing Kennedy to pray like that—in view of the students and crowds in the stands—violated the establishment clause of the U.S. Constitution. That prohibits the government from promoting one religion over another. The school put Kennedy on administrative leave when he wouldn’t stop.
JR: He sued the school district. His lawyers argued the Constitution protects his prayers, not bans his prayers. He cited the first amendment’s free speech clause and freedom of religion clause.
MR: So to clarify: three different First Amendment clauses are at play here: free speech; freedom of religion, and what’s known as the establishment clause. Those three clauses are designed to work together. But how? The parties to this lawsuit, Kennedy v. Bremerton School District, cannot agree.
JR: We’ll get into that later. First, let’s learn more about this unlikely plaintiff, Coach Kennedy. He grew up in Washington, but he didn’t play football as a kid. He tried to. But he felt out of place. On the field—
KENNEDY: I tried out for football once , and it’s like they treated me like a football. I was such a tiny, tiny kid, and football players are huge. So, that didn't work out. I didn’t even make the team.
JR: —and off the field—
KENNEDY: I was adopted at birth. My parents couldn’t have kids. So they adopted a girl. About a year later, they adopted me. And then by the grace of God they started having kids on their own. And they had five of them and they didn’t really need us anymore, so yeah, things kind of went south from there. … I always felt off. Then I became angry, and the more angry you get. When your parents tell you the worst thing they ever did was the day they adopted you.
MR: His adoptive parents were Catholic, but faith in God wasn’t his thing.
KENNEDY: I always rebelled against it. I always asked the wrong question, I guess. I lied, I cheated, I stole, I fought. You name it, I did it. I was honestly a very unruly kid.
MR: He ended up at a boys’ home. A faith-based one. And found the prayers and Bible readings helpful. But it didn’t last. As soon as he left, he was back at his foolish ways.
JR: He did graduate. From Bremerton High School in 1988. At 17, he joined the Army. At 18, he signed on with the Marine Corps. And did eventually play football while stationed in the military.
KENNEDY: I played for the Bone Crushers in Hawaii, and it was kind of one of those semi-organized slugfest kind of games where, you know, you try to break the other person.
MR: After he met his wife, faith started to become important.
KENNEDY: We got married and she was the sweetest woman. Every Sunday, she would just ask me, “Hey, would you like to go to church with us?” I was like, “No, not my thing.”...Then months later, one of our kids said, “Well if he doesn’t have to go, do I have to go?” And so, I was like, all right. I went and did the whole sitting on my hands, sitting with my arms crossed in defiance the whole time.
But that attitude changed.
KENNEDY: Finally one day I was at church and I knew I couldn’t do it on my own. And they were playing some song and I walked up, just right up to the altar and fell on my knees and just lost it…That was the moment I started following God and said, I’m in.
MR: Much to his surprise, he began to miss Bremerton. So, after nearly 20 years, he retired from the military. And moved back home.
JR: So that’s a bit of his faith background. Let’s fast-forward to 2008, where the unruly kid he describes becomes more of the unruly man, so to speak. That’s when he took his football coaching job at Bremerton high school. And where his personal and professional life crossed on the field of battle.
MR: The weekend before he accepted the job, Kennedy was channel surfing. He came across the movie Facing the Giants. A football movie.
KENNEDY: And I was on my knees bawling my eyes out again and 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.
MR: So when he started his job, he did just that. He prayed on the 50-yard line after every game.
JR: At first he prayed alone. Then some of his players asked to join.
KENNEDY: And I said, it’s a free country. You can do whatever you want to do. That’s up to you.
MR: At times players from the opposing team joined in.
KENNEDY: It evolved into where, you see, the helmets, I would raise the helmets up throughout the year. If the opposing team, I’d hold one of theirs up, too. And just, hey, thanks for this and get them back off the field.
MR: He prayed with students in the locker room before games. He incorporated messages of faith into his motivational talks. That went on for seven years. Then, in September of 2015, a coach from another school mentioned Kennedy’s post-game prayers to Bremerton’s principal, as a compliment.
JR: Let’s take a moment and slow down here. Because this is where things start to happen that led to the lawsuit. Many reports on this case say the facts are in dispute. But as far as I can tell, they’re not. There are a lot of facts. And each side characterizes them differently. Emphasizes the ones that best support their view, and omit the ones that don’t. Here, I tried to include the most relevant facts on both sides.
MR: Okay. So again, a coach from another school complimented Kennedy’s prayers to Bremerton’s principal. And that prompted the school to conduct an inquiry. While that inquiry was pending, the athletic director asked Kennedy to stop praying with students.
JR: The next game was a double header. The stands were packed! In triple overtime, Bremerton lost! After the game, a player from the opposing team asked Kennedy to pray.
MR: Kennedy held up the player’s helmet. Players from both teams kneeled around him. He said an audible prayer.
KENNEDY: And so, I turned around, and I see the athletic director walking off … just fuming. … And I’m like, now I got that sick feeling in my stomach, and I was like, did I just really screw up? I got on my phone, and I said I might’ve just got fired for praying. Facebook. Send. Post, whatever. And turned my phone off and went home.
MR: The next day, he turned his phone back on.
KENNEDY: It’s blowing up like crazy. Everybody I got news people calling me. My sister in Virginia said why are you on my TV? And I’m like, what are you talking about?
MR: Well, that escalated quickly. The school sent Kennedy a letter: stop the prayers with the students, stop the religious talk in the motivational speeches. The letter instructed Kennedy to keep his pep talks entirely secular. Just, be responsible and go team, keep it like that..
The letter went on to say he was free to pray separately from students. Or, if within view of students, his prayer must be, to cite the letter, non-demonstrative. By “non-demonstrative,” school officials meant, no kneeling and no pointing to heaven. Kennedy did agree to stop any religious talk in his motivational speeches. And he did agree to stop his locker room prayer with the team.
JR: But he drew a line. The 50-yard line, to be exact. Coach Kennedy insisted on his right to conduct a prayer at midfield after the game. Where students and spectators could observe him. And insisted on taking a prayer posture.
MR: That’s the big picture. Now we narrow the focus to three prayers. The year is 2015, the month of October. The first happened on the 16th. Homecoming weekend. In advance of the big football game that night, Kennedy publicized to the media his intention to pray. After the game, Kennedy knelt at the fifty, closed his eyes, and said a prayer. Students from the opposing team joined him, but Kennedy’s own players didn’t join in. They were singing the school’s fight song.
JR: When Kennedy took a knee, fans from the crowd and members of the media rushed the field. People jumped security fences. Band members got knocked over.
MR: The next prayer happened a week later, on October 23rd. Kennedy again knelt on the field after a game.
JR: Finally, October 26th. That was prayer three. This time Kennedy invited politicians, state representatives, to come to the game and join him in prayer. They did.
KENNEDY: Lord, I lift these guys up for what they did out on the field. The battle that they fought…
MR: After that, the school district put Kennedy on paid administrative leave and his midfield prayers came to an end.
AUDIO: “I Couldn’t Hear Nobody Pray” by Lawrence Winters. And I couldn’t hear nobody pray \ And I couldn’t hear nobody pray \ Oh, way down yonder, by myself. And I couldn’t hear nobody pray.
JR: Faith and football. Football and faith. As I worked on this story, I kept wondering: Where did that culture come from? It seems to exist in this sport more so than, say, hockey or tennis. Or even American baseball. When I asked Kennedy, he said he didn’t know, it’s just always been that way. But a different former football coach did have a thought.
SCHLAFER: My name is Dan Schlafer. … Started my career in 1974. … Back in those days, my whole focus was teaching kids and coaching football.
JR: Dan Schlafer says this about the culture of faith and football:
SCHLAFER: Not to minimize any other sport at all, because I’ve also coached basketball and tennis and golf. And they’re wonderful. But there’s something indigenous with football and the camaraderie, the family atmosphere, the teamwork, the togetherness. If you’re a truly great team, you’re playing for each other and you sacrifice for each other. … It’s powerful. … It’s otherworldly. You need direction, you need guidance, you need divine providence. You need to depend on something larger than yourself to get you through it. Because it’s tough. It’s really tough.
MR: Like Coach Kennedy, Coach Schlafer also wound up in a lawsuit for praying on the job. He coached high school football in Tennessee through the 70s, 80s, and 90s. He prayed with his players regularly. Nobody told him he couldn’t. To the contrary, they thanked him for being a positive influence.
JR: But that all changed in 1994. After a Thursday night freshman game. One of his running backs got injured.
SCHLAFER: I honestly thought he had broken his rib. So we took him to Cumberland Medical Center, and probably that injury saved his life. Because the chest x-rays for a broken rib were negative. But the x-rays also showed a lemon-sized tumor on his left lung. And so the next morning … he called me from his hospital room. And so I had to leave my classroom and come up to the front office to take the call.
MR: These were in the days before cell phones.
SCHLAFER: And he said, “Coach, I’m scared. Will you please pray for me?” I said, “Of course, I will. Of course, I will.” And Friday afternoon there was a pep rally in our stadium for the home varsity game that night. Prior to the prayer, I said the young man’s name. And I said, “Look, here’s the situation. And this is much more important than football. And he’s facing surgery. And he’s in surgery now. And he’s asked for prayer.” And so I did. I prayed for him. I prayed for the medical team, that they would have wisdom. That Tommy be healed if that was God’s will. And that was that. It was not a long, involved proselytizing prayer by any stretch. It was just asking God for help. As you can see, it’s still a very emotional issue with me because it just spiraled out of control.
MR: After the game that night, Coach Schlafer said the school principal stormed into his office.
SCHLAFER: He said, “You can’t be praying. That’s against the law!” I said, “I wasn’t aware of that. And I’m so sorry.”
JR: Coach Schlafer’s case settled out of court. If it hadn’t, it’s possible a court would have held his prayer was okay. Past Supreme court decisions have held prayers in such situations can be permissible if they fall within certain guidelines. Barry McDonald is a Constitutional Law scholar at Pepperdine University. He explains:
MCDONALD: If you take the older Supreme Court route and view it as ceremonial deism, where it’s just meant to sort of ask students to keep him in their thoughts it’s not really religious, it’s just sort of adding gravity and seriousness and solemnity to the occasion.
JR: That’s allowed. But it’s also possible that the principal was right. A court might have found Schlafer’s pep rally prayer violated the law. Here’s why: Three years prior, the Supreme Court decided a case called Lee v. Weisman. In that case, a public school invited a rabbi to say a prayer at a graduation ceremony. The court held that that graduation prayer did violate the establishment clause of the U.S. Constitution. Because the students were indirectly coerced to participate. McDonald explains that in the rabbi prayer case, the court said this:
MCDONALD: Look, they had to be there for the graduation ceremony. It was a situation where students would have felt coerced to have participated by standing up, bowing their head. Even though they weren’t being penalized for not participating. Under the circumstances, it seems that the government is coercing people either psychologically, mainly psychologically, under peer pressure, to participate in those prayer activities.
MR: So the Court found an Establishment Clause violation.
JR: We’ll never know for sure what would’ve happened if Coach Schlafer’s case had gone to court. But Rachel Laser of Americans United for Separation of Church and State says an establishment clause violation happened here, too. In the Coach Kennedy case.
LASER: So, in this case, the Bremerton School District was doing the right thing when they said to the coach, we need you not to pray such that you’re pressuring the students to join you. We will work with you such that you can still pray.
MR: Americans United for Separation of Church and State represented the school district. The organization was founded by religious leaders and originally was called Protestants and Other Americans for Separation of Church and State.
LASER: We’ve been around for 75 years, and our mission is to protect everybody’s right to live and believe as they choose.
JR: Laser, by the way, is the first Jewish and first female president and CEO of the organization. She says her faith is important to her. She and her husband raised their three kids in conservative Judaism. Part of that practice includes prayer.
MR: But outside the home, in the public square, she says religious freedom has limits. She believes in her group’s purpose:
LASER: What we do is we defend, like a shield, the separation of church and state because it’s the guarantee of religious freedom for all of us. And so, that’s what we protect. Religious freedom for all of us and not just some of us in America.
JR: Coach Kennedy lost in lower court.
LASER: There is nothing solitary or silent about this prayer. And if this were a case about a coach that genuinely wanted to pray in a quiet and solitary way that didn’t pressure students to join, we wouldn’t have any problem with it.
MR: Coaches are authority figures. Role models. Influential.
LASER: The students came forward, it’s in the record, and said that they felt pressured to pray to play, pressured to pray to feel part of the team.
JR: I requested an interview with two of those former students through lawyers, but didn’t get a response.
MR: Well, during oral arguments, Justice Elena Kagan brought up this point when she questioned Coach Kennedy’s lawyer.
JUSTICE ELANA KAGAN: If you look at our prayer cases, the idea of why the school can discipline him is that that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion.
MR: Justice Kagan said that really gets to the heart of what these cases are about.
KAGAN: Which is coercion on students and having students feel that they have to join religious activities that they do not wish to join, that their parents do not wish them to join. We're worried that the students will feel he gets to put me into a football game or not. He gets to give me an A in math class or not. And this is a kind of coercion that's improper for 16-year-olds.
PAUL CLEMENT: This is not a case where the government took action because of coercion concerns.
MR: That’s Paul Clement arguing on behalf of Coach Kennedy.
CLEMENT: The record is crystal-clear that they were concerned about endorsement.
JR: Endorsement of a religion. That’s a separate question than coercion. Clement pointed to the letters the school district sent to Kennedy to prove the school didn’t have coercion concerns. Here he is in an exchange with Justice Neil Gorsuch about that.
CLEMENT: I think it’s very clear on what motivated the District, and it was endorsement, endorsement, endorsement, endorsement again.
JUSTICE NEIL GORSUCH: Not coercion?
CLEMENT: Not coercion. If you look at their first letter after the October 16 game, there are eight references to endorsement or endorsing, zero references to either coercion or player safety. If you look at their letter there are again eight references to endorsement, endorsing, no references to coercion. So it is clear what motivated their policy.
JR: But as hard as Clement tried to escape a discussion on coercion, the justices kept circling back to it. During an exchange with Justice Kavanaugh, Clement pointed out that the “pray to play” argument could mean anything the coach liked or preferred.
JUSTICE BRETT KAVANAUGH: What about the player who thinks, if I don't participate in this, I won't start next week?
CLEMENT: That concern isn't even specific to religion. I mean, if—
KAVANAUGH: I agree with that.
CLEMENT: I mean, if the coach is always wearing a Packers jersey, I mean, there's an incentive for the players to follow on.
JR: Clement gave a concrete solution: The school district must have a clear policy that prohibits a coach from favoring players who pray.
KAVANAUGH: I guess the problem with the heart of it is you’re never going to know because the coach is probably not going to say anything like the reason Johnny's starting and you're not is he was part of the prayer circle. That's going to be a real thing in situations like this. I don't know how to deal with that, frankly, though.
MR: Next up: Robert Katskee, who argued on behalf of the school district.
KATSKE: Mr. Chief Justice and may it please the court. No one doubts that public school employees can have quiet prayers by themselves at work even if students can see. But that wasn't good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people. Some of these kids were just 14 years old. Mr. Kennedy's actions pressured them to pray and also divided the coaching staff, sparked vitriol against school officials. When Mr. Kennedy repeatedly ignored sincere efforts to accommodate personal prayers, what was the District to do?
MR: When the lower court ruled that Kennedy’s visible prayer did violate the establishment clause, it applied what’s known as the endorsement test. Sometimes called the Lemon endorsement test because it evolved from the Lemon v. Kurtzman case that involved public funding and church-run schools.
JR: The Lemon endorsement test asks whether a reasonable person, an ordinary observer, would look at what’s going on and think that the school was favoring a particular religion. If yes, the prayers aren’t allowed.
MR: But Justice Neil Gorsuch reminded Katskee that the Supreme Court hasn’t applied that test in a long time, that the justices have soured on it. [Ugh!] Sorry.
GORSUCH: Why is it that the school district so emphasized Lemon? As Justice Kavanaugh pointed out, this Court for decades now has resisted attempts to rely on Lemon in cases like this.
KATSKEE: Well, the School District was following the precedents of this Court that continue to be precedents and haven't changed.
MR: Sour or not, lower courts are still bound by it. So how much does the school district need to separate itself from Kennedy’s religious expression? And what law governs that? That one question. But there’s more. Let’s move on.
JR: Much of the oral argument focused on Kennedy’s free speech claim..
DAVID HUDSON: The lynchpin of the case is that he essentially was disciplined simply for praying at the 50-yard line at the conclusion of football games.
JR: David Hudson is a law professor at Belmont University College of Law in Nashville, Tennessee, as well as a First Amendment Fellow of the Freedom Forum. He wasn’t a lawyer to either party here. But he’s written about the case. He explains how the law surrounding free speech has evolved over the years.
HUDSON: For many, many years, public employees did not lose all their First Amendment rights when they accepted public employment.
JR: But that all changed in 2006 when the court came up with a new rule:
HUDSON: It's a threshold categorical rule that says if you as a public employee are engaged in official job duty speech, you have no First Amendment right at all. Doesn't matter how important the speech is, doesn't matter if you're the purest of whistleblowers, doesn't matter if you're uncovering abject governmental corruption. If it's deemed to be government speech or official job duty speech, then you have no First Amendment claim.
JR: Government job duty speech. Hudson says some courts have applied that rule so broadly—
HUDSON: That any classroom speech by a public school teacher is foreclosed almost anything a teacher says if they’re communicating to students, right, they’re teaching. So is that their official job duty to teach, so anything they say they don’t have any first amendment rights.
MR: At oral argument, the justices tried to figure out where Kennedy’s job duties ended and his personal practices began. Justice Sonia Sotomayor seemed to think Coach Kennedy’s prayers were spoken in his function as a coach.
JUSTICE SONIA SOTOMAYOR: He had an obligation to remain behind for two hours after the game finished. He had a duty to make sure that he escorted all the players 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.
MR: School district lawyer Katskee agreed, and tried to emphasize that Kennedy’s prayers weren’t as private and personal as he claimed.
KATSKEE: What Mr. Kennedy did at that October 26 game is he, ahead of time, gave special permission to two legislators and some other people to come onto the field to have a prayer circle with him on the 50-yard line. Students—it was fully visible to students. And then, as part of the arrangement, was to turn around and have one of those state legislators address the team, which he did.
MR: Earlier, when Kennedy’s lawyer, Paul Clement, stood before the justices, he also addressed that free speech claim. He said, sure, Kennedy was on duty in a loose sense of the word. But he didn’t have to watch the kids like a hawk after the game. He could greet a spouse, text a friend; check Facebook; look up how the stock market did that day. Briefly attend to a wide variety of personal matters.
JR: Justice Elena Kagan challenged him. She said part of the problem in this case is the history. The fact that for seven years, Coach Kennedy did pray with his students during instructional coaching time. I love the banter here. How lawyer Clement tosses a hypothetical question at Justice Kagan!
KAGAN: I mean, there must be countless times when a coach in the post-game talk or a teacher in Math class where people would totally believe them if they said, I'm doing this as just me, I'm not doing this because the school district says it, but, for me, this is super-important to me, this prayer, and I hope you'll join me. Now that seems to me to be coercive of 16-year olds regardless…
CLEMENT: I guess it just depends. I mean, look. Take a familiar example: It's Ash Wednesday. A teacher goes to morning mass, comes in with a big black mark on his or her forehead. Is that coercive?
KAGAN: No, because nobody's asking the students to participate at that point.
MR: The parties discussed more hypotheticals. Like prayer during class. Both sides agreed that a teacher couldn’t pray during class while teaching a lesson. Because that’s instructional time.
JR: What about the end of class? The bell has rung again. Class is technically over. But of course, a teacher’s duties include being available to her students, answering questions. Instead, she says a prayer.
SOTOMAYOR: She's on duty. So why can't an employer tell an employee what they're permitted to do, personal or otherwise, during that time?
JR: Mary, I don’t know what you picture with that hypothetical. But I had an image in my mind of a sweet teacher. Buttoned up blouse. Pair of glasses. Maybe wearing a cross necklace. An apple on her desk.
Well, Justice Sotomayor was trying to make an analogy to Coach Kennedy’s situation. He was “on duty” after the game, like the Christian teacher after class. That’s why I did a double take when Justice Sotomayor’s hypothetical … took a hard turn.
SOTOMAYOR: His duties as coach weren’t just during the game. So I guess what I'm asking is why can't the school fire a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray?
MR: Clement tried his best to wade through that … and things got testy.
CLEMENT: If somebody wants to have sort of a Nazi emblem, but it's not religious—
SOTOMAYOR: Assume it's religious.
CLEMENT: But, if it's not religious—
SOTOMAYOR: Assume it's religious.
CLEMENT: I'm happy to assume it's religious. If it's claimed to be religious, that might be one of the rare cases where you question the sincerity of the religious belief, because I'm not really aware of that religion myself. But assuming it's a sincere religious belief the school might have to address that through a neutral policy, avoiding disruption.
JR: Okay. Did you catch what Clement said as an aside?
SOUND: TAPE REWIND
CLEMENT: That might be one of the rare cases where you question the sincerity of the religious belief, because I'm not really aware of that religion myself.
JR: Well, I’m not aware of that religion either. But Justice Sotomayor later turned that question right around.
SOTOMAYOR: He's the one who chose to publicize his prayer I don't know of any other religion that requires you to get at the 50-yard line, the place where post-game victory speeches are given.
MR: Clement shot back: Kennedy’s religion did.
CLEMENT: If a soccer player scores a goal, the soccer player will do a religious exercise, or Tim Tebow scores a touchdown, they do the religious exercise there. There are spectators watching it, but that doesn't, that's not what's driving the religious exercise. What's driving the religious exercise is that's where the event that the religious adherent is thankful for took place.
JR: The lower court touched on Christian beliefs, too. It actually quoted the Sermon on the Mount. In Matthew 6, Jesus gave his followers instructions on prayer: Don’t be like the hypocrites who love to pray in places where they will be seen. I asked Coach Kennedy about Jesus’ instruction not to make a public spectacle of prayer. I’ll circle back to that in a minute, but first, let’s wrap up the Supreme Court case.
MR: Overall, a dizzying array of facts … a dizzying array of claims … and a dizzying array of legal tests. What did the court decide? In favor of Coach Kennedy. Justice Neil Gorsuch wrote the 6-3 opinion. It held that the first amendment’s free exercise and free speech clauses protect personal religious observance. And that the establishment clause doesn’t direct the school to suppress that expression.
MCDONALD: Well, I think the court was mainly reinforcing that principle that even a public employee is entitled to engage in private prayer.
MR: That’s con law professor Barry McDonald again, to help us analyze the opinion. First the free exercise of religion dispute. The court said the school district would have to apply a neutral rule in order to win on this point. Here, the school allowed coaches to engage in personal secular conduct after games: things like visiting with friends, personal phone calls. But it did not allow personal religious conduct.
MCDONALD: It was clear they were targeting his prayer practices.
MR: The policy is not even handed. So the school lost on that point.
JR: Next, the free speech claim. The court said Kennedy prayers amounted to his own private speech. Not spoken as a job duty speech. They happened in a time when he wasn’t instructing players or discussing strategy. He wasn’t trying to convey a message on behalf of the school. At this point, the legal analysis would normally continue.
Picture a decision tree. You pick one of two options. It drops you down a level where there are two more options. And so on. Here when the court determined Kennedy’s speech was private, that dropped them down to another layer of legal analysis.
MCDONALD: We have to go to the balancing. Which balances the importance of the speech in terms of its public importance versus how disruptive it might be on the school district. But he doesn’t even really get into that either.
JR: Instead, the court said well, no matter what path we take from here, it would lead to the same conclusion.
MR: Finally, the establishment clause claim. The lower court relied on Lemon and its progeny cases. Now, that’s the test about whether a reasonable observer would perceive Kennedy’s prayer as the school endorsing religion. The court said it has long-abandoned that test, and didn’t apply it here.
JR: Instead, the court looked to history and tradition. This is a topic that didn’t come up at oral argument. And McDonald says that even though Justice Gorsuch said to look at history and tradition—
MCDONALD: But what’s really strange about that he says it’s history and traditions but then he never goes on to apply whether a football coach leading a prayer like this fits within acceptable history and traditions to say that it wouldn’t be viewed as an establishment. He just moves on, says it’s history and traditions and then moves right on to the coercion problem.
MR: And when it came to the debate about coercion? The court held the evidence of that was weak.
JR: Justice Sotomayor disagreed with that. She wrote the dissent and included photos of Kennedy surrounded by students as he prayed. Presumably, some who didn’t want to. She also thought his prayers amounted to job duty speech. The dissent said time and place matter. The football game might have been over, but the school event wasn’t.
MR: So that’s an overview of the decision. Notably, Kennedy’s only request in this case: He wants his job back! He doesn’t want money. According to the school district’s lawyers, the school is working to update their procedures. And the case is now back in the U.S. District Court for the Western District of Washington where the judge will decide how to implement the decision and sort out attorneys’ fees. As of this recording, according to Kennedy’s lawyers, the school district has yet to offer Kennedy his job back.
JR: I mentioned earlier that the lower court here wrote about the Sermon on the Mount in its opinion. Where Jesus said not to make a public spectacle of prayer.
I asked Kennedy about that the day we met him in front of the Supreme Court. And I’ll admit: As a Christian, I was looking forward to a discussion with him on this. Neither of us is a theologian, but as fellow Christians, I hoped we would wrestle through Matthew 6 together. And other prayer passages in the Bible. That didn’t happen.
KENNEDY: I’m not a really religious guy. I don’t know the Bible well. I’m the wrong guy to ask what’s in the Bible. I just don’t know. I just try to do my thing.
MR: But he says others have told him that that passage is about hypocrisy.
KENNEDY: From everything that I hear, that’s like trying to be a showboat and look how holy I am, kind of thing. That couldn’t be further from the truth of what I’m doing. I have no desire to pray with the kids. It was a cool thing that we did and when they said don’t do it, it was perfectly fine. Because that’s not what my agreement with God—I made a covenant with Him that I was going to give Him thanks after every game. To me it’s such a benign thing. And I think there’s places in the Bible that say give thanks always.
JR: I wanted to keep grappling with this question, so I talked with Christian lawyers, pastors, and friends. I found their comments insightful. And think you will, too.
Bob Cochran, for instance. He’s a lawyer who has written extensively on faith and the law. I asked him: Is there biblical backing for the coach’s insistence on praying at the 50-yard line?
BOB COCHRAN: Well, I think that’s a great question and one that Christians so often don’t ask. So, if the government allows us to do something like this, well fine. Maybe a more important question is: Should we do it? What does the scripture have to say? I’m a law professor and a lawyer. .. I can argue a case either way.
JR: He says Matthew 6, verse 5 is instructive:
COCHRAN: You look at that by itself and it looks like Coach Kennedy was out of bounds. Don’t be like the hypocrites. Well, who is a hypocrite? Hypocrite. That was a mask that was worn. So, somebody, their personal life is not really matching what they’re doing in public. And so, I think the emphasis there is that you should be consistent.
MR: Adhere to the same principles everywhere. In all areas of life.
COCHRAN: I mean, my wife and I pray at home before dinner. When I go out to dinner, we pray. I don’t do that to try and show off. I’m just doing what we do at home.
MR: Cochran says it’s not uncommon for Christian sports celebrities to thank God publicly. Some live out that faith … others don’t.
JR: But Cochran goes on to say when looking at a passage like this, take a step back. Read the whole Sermon on the Mount, not just the verse about hypocrites.
COCHRAN: Now there’s another thing that Jesus says, and maybe create a little tension here is in Matthew 5, he says “Let your light shine before men that they may see your good works and glorify your father in heaven.” Do our hearts want it to give glory to God, and does it actually give glory to God? You know, what’s Coach Kennedy’s purpose here?
JR: Only God knows the heart. Kennedy’s. Mine. Yours. John Slye is my pastor. He works at Grace Community Church in Arlington, Virginia.
MR: He says the Bible is full of the sorts of tensions that Bob Cochran just mentioned.
JOHN SLYE: So don’t make a public spectacle. By the way, let your light shine for other people. Well, which one is it? I always love, Proverbs says, never answer a fool in their folly. By the way, make sure you answer a fool in their folly. Okay. So you get the two sides.
MR: Just as the establishment clause and freedom of religion clause are designed to work together, so are Jesus’ instructions. Christians must exercise discretion.
SLYE: Sometimes you speak, sometimes you don't. There's wisdom in knowing what to say, when to speak, when not to speak, when to st and up, when to shine your light, and when to sit down and be quiet and humble. Jesus was the master at all that knowing what to do and when to do it.
JR: Finally, we talked about the fact that the coach’s prayer was one of gratitude.
SLYE: You know, in this world we suffer with a lot of discontentment. This inward focus. This ungrateful spirit. How do we break that curse over top of us? Gratitude. My gratitude is an antidote to my discontentment. So I think giving God thanks, and remembering to be a person who is grateful and is gracious...
MR: That’s one piece of wisdom we can all benefit from: Be thankful.
JR: Be thankful, yes. We want to offer up our own prayer of thanks to God for the work He’s given us and the opportunity to share these stories with you.
And Mary … something Coach Kennedy said has stuck with me. After each game, he offered a prayer of thanks, win or lose. No Supreme Court decision is going to solve the hard problems in this country. For that, we need God. So we pray, as John Stott said, to express our conscious need and humble dependence on Him. On that note, I think there’s only one word to end this episode.
AUDIO “AMEN” BY THE MOSES HOGAN SINGERS. Amen \ Good Lordy \ Amen \ Have mercy \ Amen, amen, amen \ Sing it all now \ Amen \ Good Lordy \ Amen
JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.
MR: And I’m Mary Reichard.
JR: We’re the hosts each week and we write the scripts. Our script editors are Nick Eicher and Paul Butler, who is also our producer. Lillian Hamman gave audio support.
MR: Source material in this episode included audio from The Moses Hogan Singers, Lawrence Winters, and oral arguments from SupremeCourt.gov.
JR: We want to give a special thanks to Joe Kennedy, Jeremy Dys, Dan Schlafer, Barry McDonald, Rachel Laser, David Hudson, Bob Cochran, and John Slye. … And you! We’re grateful that you take the time to listen. Thank you.
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