Supreme Court weighs football coach’s 50-yard line prayer

The U.S. Supreme Court on Monday heard oral arguments in the case of Joseph Kennedy, a former Washington state high school assistant football coach fired in 2015 for praying at the 50-yard line after games. During arguments, the justices seemed sympathetic to the high school coach’s plight, yet they struggled to define at what point the coach’s personal, on-field prayer could be considered unconstitutional, as a lower court has ruled.

Representing Kennedy, former George W. Bush administration solicitor general Paul Clement argued that the Constitution protects the coach’s personal and “fleeting religious exercise.” Bremerton School District attorney Richard Katskee, though, contended that the school district properly barred Kennedy’s prayer because players might feel coerced to join in—a violation of the establishment clause, he argued.

For Kennedy, the whole matter was a lot simpler. After the Bremerton High School coach accepted a full-time job in 2008, he was watching Facing the Giants, a 2006 movie about a turnaround by a high school coach and team. It was “like God coming down and smacking me in the head,” he told me.

“I’ve never had a movie hit me so hard and straight to my heart, [and] I fell to my knees,” said Kennedy. “And I was like, I’m in 100 percent. God, I hear you loud and clear. And so I said right there, just like in the movie, I’m going to give you the glory after every game. … And that’s the way that all started.”

That’s also what got Kennedy fired after he rejected school offers to accommodate his desire to pray by allowing him to do so out of the sight of players—a firing upheld by both a U.S. District Court in Washington and a three-judge panel of the 9th U.S. Circuit Court of Appeals. Six of the appeals court’s 29 judges dissented from a July 2021 decision not to rehear the case. (Their multiple opinions spanned 92 pages.)

On Monday, the justices’ lines of questioning suggested they were conflicted about how to approach a ruling. Was Kennedy’s prayer government speech subject to school control? Or was it private religious expression that must receive the highest protection under the First Amendment? And if private expression, were school officials justified in barring him from praying on the field because it might indirectly “coerce” players to join him in prayer?

Arguments ran nearly double their normal length as justices piled one hypothetical on top of another. “What if the activity on the field did not consist of this kneeling down briefly—much more extensive standing up on the 50-yard line, arms outstretched, engaging in audible prayer?” Chief Justice John Roberts asked, one of half a dozen line-drawing examples.

In likely the testiest exchange, conservative Justice Samuel Alito pressed the school’s attorney as to whether Kennedy would have received the same treatment if he had insisted on waving a Ukrainian flag after the game. “What reason is there to believe that you would have treated that case the same way?” Alito said.

Justice Brett Kavanaugh echoed the concerns of several justices that the school district’s stated reason for nixing the prayer—that it would imply the school’s endorsement of religion—was overblown. He pointed to the indirect influence that teachers and coaches inevitably have on students who mimic them or seek to curry their favor. “I don’t know how to deal with that, frankly,” he said.

Kavanaugh also questioned the continued viability of an establishment clause test first articulated in the court’s 1971 ruling Lemon v. Kurtzman but not used in recent years. The oft-criticized Lemon test said a law or policy passed constitutional muster if it had a secular purpose, neither advanced nor inhibited religion, and avoided excessive entanglement with religion. “I don’t think there is such a test in our case law anymore … correct?” asked Kavanaugh.

In final remarks, Clement urged the court not to simply return the case to the lower court for more factual findings with regard to whether Kennedy’s prayer had a coercive effect, something the justices already did on the coach’s first trip to the court in 2019. He noted that his client had already waited six years to get his job back.

“The sole basis for the government’s … actions here were religion,” said Clement. “That is not something that should stand.”