WASHINGTON - A coach who crosses himself before a game. A teacher who reads the Bible aloud before the bell rings. A coach who hosts an after-school Christian youth group in his home.
Supreme Court justices discussed all those hypothetical scenarios Monday while hearing arguments about a former public high school football coach from Washington state who wanted to kneel and pray on the field after games. The justices were wrestling with how to balance the religious and free speech rights of teachers and coaches with the rights of students not to feel pressured into participating in religious practices.
The court’s conservative majority seemed sympathetic to the coach while its three liberals seemed more skeptical. The outcome could strengthen the acceptability of some religious practices in the public school setting.
Justice Brett Kavanaugh, who played basketball in high school himself and has coached his daughters’ teams, suggested that there’s a difference between a coach praying in a huddle with students or in the locker room and "when players are disbursing after the game." "This wasn’t, you know, ‘Huddle up, team,’" Kavauagh said at one point, suggesting the coach’s practice was acceptable.
Justice Amy Coney Barrett asked what if the coach had instead run an after-school religious youth group at his home, with students free to join or not. Would the school have been able to object to that, she asked.
Arguments at the high court lasted nearly two hours, despite being scheduled for just one. The justices and the lawyers arguing the case at various points discussed teachers and coaches who might wear ashes on their foreheads on Ash Wednesday, oppose racism by kneeling during the national anthem or express a political opinion by putting signs in their home’s yard. Former NFL player Tim Tebow, who was known for kneeling in prayer on the field, and Egyptian soccer star Mohamed Salah, a Muslim who kneels and touches his forehead to the ground after a goal, also came up.
Justice Samuel Alito, borrowing from the news, asked about protesting the Russian invasion of Ukraine and what if the coach had, instead of praying, gone out to the center of the field and "all he did was to wave a Ukranian flag." Would he have been disciplined? Yes, a lawyer for the school district said, because the district "doesn’t want its event taken over for political speech."
The Supreme Court previously declined to get involved in the case at an earlier stage in 2019. At that time Alito wrote for himself and three other conservatives — Kavanaugh and Justices Neil Gorsuch and Clarence Thomas — that a lower court decision in favor of the school district was "troubling" for its "understanding of the free speech rights of public school teachers." But they agreed with the decision not to take the case up at the time.
The case has returned to the court at a time when the court’s conservative majority has been sympathetic to the concerns of religious individuals and groups, such as groups that brought challenges to coronavirus restrictions that applied to houses of worship. But cases involving religion can also unite the court. Already this term in an 8-1 decision the justices ruled for a Texas death row inmate who sought to have his pastor pray aloud and touch him while his execution was carried out.
The case before the justices on Monday involves Joseph Kennedy, a Christian and former football coach at Bremerton High School in Bremerton, Washington. Kennedy started coaching at the school in 2008 and initially prayed alone on the 50-yard line at the end of games. But students started joining him, and over time he began to deliver a short, inspirational talk with religious references. Kennedy did that for years and also led students in locker room prayers. The school district learned what he was doing in 2015 and asked him to stop.
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Kennedy stopped leading students in prayer in the locker room and on the field but wanted to continue praying on the field himself, with students free to join if they wished. Concerned about being sued for violating students’ religious freedom rights, the school asked him to stop his practice of kneeling and praying while still "on duty" as a coach after the game. The school tried to work out a solution so Kennedy could pray privately before or after the game. When he continued to kneel and pray on the field, the school put him on paid leave.
Kennedy’s lawyer, Paul Clement, told the justices that the Constitution’s freedom of speech and freedom of religion guarantees protect his "private religious expression."
Richard Katskee, a lawyer for the school district, said public school employees can have quiet prayers by themselves at work even if students can see. But, he said, Kennedy’s actions pressured students to pray and also caused a safety issue.
After Kennedy publicized his dispute with the school district in the media, spectators stormed the field to pray with him, knocking down students in the process. He noted that coaches have a power that is "awesome." "The coach determines who makes varsity, who gets playing time" and who gets recommended for college scholarships, he said. "The students know you have to stay in the good graces of the coach if ... you have those aspirations."
Justice Elena Kagan said the court has in past cases cared about "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."
Kagan is one of three justices on the court to have attended a public high school while the rest attended Catholic schools.
Justice Sonia Sotomayor questioned why Kennedy had to pray on the 50-yard-line immediately after the game rather than other options the school offered: "Why there?" she asked at one point.
Clement said "his religious beliefs" compelled Kennedy to express his thanks there. "I don’t think there’s anything unusual about that," he said.
A decision is expected before the court begins its summer recess.
The case is Kennedy v. Bremerton School District, 21-418.