Supreme Court upholds high school postgame prayer

A conservative majority of the Supreme Court prioritized religious liberty yet again on Thursday, upholding the right of a Washington state high school football coach to pray at the 50-yard line at the conclusion of games.

In a 6-3 opinion, the court concluded that both the free exercise and free speech clauses of the First Amendment protected former Bremerton High School coach Joseph Kennedy’s right to pray at midfield following high school football games—prayers that got Kennedy fired in 2015. He began regularly taking to the field for prayer following games after watching Facing the Giants, a 2006 movie about a turnaround by a high school coach and team.

“Respect for religious expressions is indispensable to life in a free and diverse Republic,” wrote Justice Neil Gorsuch in the majority opinion, adding that “the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.” That was discrimination not called for by the Constitution, Gorsuch concluded.

Most significantly, the court finally jettisoned the test set forth in its 1973 ruling in Lemon v. Kurtzman. The test, in relevant part, states that the establishment clause is violated whenever a hypothetical “reasonable observer” could conclude the government endorses religion. That was the argument made by the school district: Parents and other students at a game might perceive that the school endorsed Kennedy’s brief prayer.

But Gorsuch concluded that “this Court long ago abandoned Lemon and its endorsement test offshoot” to focus on the “original meaning and history” of the clause. Nor did he accept the school district’s position that students might have felt coerced to pray by the coach’s actions. Kennedy’s postgame habit did “not involve leading prayers with the team or before any other captive audience,” Gorsuch noted.

“Here, the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students,” Gorsuch wrote. “Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it.”

Gorsuch also wrote that Kennedy’s short prayer did not constitute government speech subject to the control of the school since the prayer did not fall within the scope of his coaching duties. And the school district could not demonstrate that its interests in avoiding coercion permitted it to silence the praying coach. “In no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights,” Gorsuch cautioned.

In a dissenting opinion joined by Justices Elena Kagan and Stephen Breyer, Justice Sonia Sotomayor argued that the Supreme Court “has consistently recognized that school officials leading prayer is constitutionally impermissible.”

For Kennedy, it was an emotional day. “All I’ve ever wanted was to be back on the field with my guys,” the coach said in a statement after the ruling. “I am incredibly grateful to the Supreme Court, my fantastic legal team, and everyone who has supported us. I thank God for answering our prayers and sustaining my family through this long battle.”

Monday’s ruling came just six days after a majority of the court also struck down a provision in Maine law barring tuition assistance for parents sending children to religious schools where no public school is available. The ruling in the case, Carson v. Makin, called the state’s preference for nonreligious schools “discrimination against religion.”

A court trend of rulings reinvigorating the religion clauses of the First Amendment can be traced back to a 2017 ruling, Trinity Lutheran Church of Columbia, Inc. v. Comer. There, the court struck down a rule preventing Missouri from sponsoring a church preschool playground remodel using surfaces made from recycled rubber tires—simply because it was a church.

Paul Clement, a former U.S. Solicitor General and First Liberty network attorney who argued Kennedy’s case, heralded the win. “After seven long years, Coach Kennedy can finally return to the place he belongs—coaching football and quietly praying by himself after the game.”