Victory for the Praying Football Coach: Free Exercise over Establishment

From the point of view of the Bremerton, Washington, school district, allowing football coach Joseph Kennedy to kneel down and offer thanks to God on the fifty-yard line at the end of a football game, joined by some student players and visible to the spectators, would have been violating the establishment clause. To the school district, all the case law prohibiting prayer and Bible study in the public school classrooms as representing “an establishment of religion” (that is, having government-sanctioned/supported religious activity) indicated that Coach Kennedy’s fifty-yard-line prayers were constitutionally impermissible.  But from Coach Kennedy’s point of view, by denying him this prayer, the school district was violating his right to the free exercise of religion as well as his freedom of speech.  By a vote of 6 to 3, along political party lines, the Supreme Court has sided with Coach Kennedy.

Neil Gorsuch, Trump’s first appointee to the Court, wrote the majority opinion.  Gorsuch found that the school district, by prohibiting the coach’s post-game fifty-yard-line prayers, was singling him out expressly for his religious practice even though he was not acting with school authority to engage in any school-sanctioned religious activity.  Gorsuch also noted that, as a matter of freedom of speech, Kennedy was acting as a private citizen rather than communicating anything that could be seen as a government-sanctioned message. He acknowledged that some people might not like to see Kennedy engaging in this prayer.  But: “‘learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’ ”  He further denied that any coercion of students was taking place, even though here was anecdotal evidence that some students felt they had to join their coach in prayer to stay in his good graces.

Interestingly, Justice Brett Kavanaugh, though he went along with the ruling, did not sign on to the section where Gorsuch denied coercion.  He did not write a separate concurring opinion explaining himself on this point.

Justice Sonia Soomayor dissented.  “While the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced
by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.”  She was joined by the other two Democratic appointees, Elena Kagan and Stephen Breyer.

It should be noted that what made this case justiciable under the First (and Fourteenth) Amendment was the fact that a public school district is an agency of government.  For the establishment clause, the Court had to consider whether allowing the prayer represented government sanctioning of religion, and for free exercise, the question was whether the school district’s disciplinary action against the coach was permissible.  On that latter point, it needs to be noted that for both teachers and students in public educational institutions, when they are on school grounds and subject to school authority, First Amendment rights are neither absolute nor nonexistent, but rather, have to be carved out case by case.  (This is also applicable to employees of other kinds of government agencies; remember Rankin v. McPherson, the case of a clerical employee of a constable’s office who was fired for expressing the wish for the president to be assassinated while she was on the job–a case that she won, 5-4.)

Remember that just a week earlier, the Court ruled 6-3 that the state of Maine was denying families their free exercise rights by excluding religious schools from its program of providing tuition to private schools for students whose own towns did not have public schools.  In that case, as well, the state meant to obey the establishment clause and was sued for violating the free exercise clause.

Coach Kennedy, predictably, is thanking God for this victory.

Full text of the Bremerton decision

Article in Politico, June 27, 2022

Full text of the Maine decision

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