The Supreme Court on Monday will hear arguments in a high-profile case involving a high school football coach who was reprimanded for postgame prayers on the football field’s 50-yard line.
The dispute has drawn dozens of briefs from interest groups on both sides, with religious liberty advocates urging the 6-3 conservative majority court to advance their cause, while backers of the school have asked the justices to lay down a marker on church-state separation.
One unusual twist that makes the case’s stakes difficult to gauge is that coach Joseph Kennedy and the Seattle-area school district have offered sharply contrasting accounts of what transpired. Depending on which facts the court finds most persuasive, the case could be dispatched quietly, or it could mark a watershed in First Amendment law.
“A real question the court has to decide here is what version of the facts do they agree with. And to some extent, deciding that may very well decide the case,” said David Gossett, a partner at Davis Wright Tremaine, who backed the school district in an amicus brief featuring accounts from former professional and college athletes and coaches.
The dispute Monday will pit Kennedy, a devout Christian, against the Bremerton, Wash., school district where he worked before his contract expired.
Starting in 2008, Kennedy began kneeling on the football field after games and conducting a brief prayer. Eventually, many of his players joined him, as did members of opposing teams. This continued without formal complaint until 2015, when the school told Kennedy to stop.
Administrators said Kennedy’s conduct violated school policy that prohibited staff from encouraging students to engage in prayer or other devotional activity. The record also shows that one player, an atheist, feared that not joining Kennedy’s midfield prayer “would negatively impact his playing time.”
Kennedy went on to defy the school’s order and was placed on administrative leave. He did not reapply for his job after his contract ended in 2015. He later filed a lawsuit, alleging the school violated his First Amendment speech and religious rights in disciplining him for his private religious expression.
The two parties painted very different versions of the events leading up to the litigation. Kennedy depicts himself as engaging merely in a quiet, personal and private prayer at the conclusion of games. The school district, for its part, portrays Kennedy as having led a highly publicized and disruptive campaign to promote his right to religious demonstration at a school event.
A federal district court in Washington sided with the school. The judge concluded that Kennedy’s conduct was not constitutionally protected because he had been acting in his capacity as a public employee.
Kennedy appealed but was again rebuffed. A unanimous three-judge panel of the San Francisco-based federal appeals court held that Bremerton School District (BSD) would have violated the Constitution’s prohibition on government endorsement of religion “by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.”
“Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties,” the panel of judges on the U.S. Court of Appeals for the 9th Circuit wrote.
As Kennedy takes his appeal to the Supreme Court on Monday, he’s joined by a number of outside backers. Among them is the American Center for Law and Justice, led by Trump-allied lawyer Jay Sekulow.
Sekulow’s group argues that the court should use the case as a vehicle to definitively wipe off the books any remnants of its landmark 1971 ruling in Lemon v. Kurtzman, which created a legal test for gauging church-state separation under the First Amendment’s Establishment Clause that conservatives have long argued goes too far in favor of secularism.
“As evidenced by nearly a half century of often scathing criticism from scholars, members of this Court, and lower court judges, Lemon is poorly reasoned,” Sekulow wrote in an amicus brief. “Its foundational flaw, of course, is that it is untethered to the original meaning of the Establishment Clause. Devoid of sound doctrinal underpinnings, Lemon is elastic and unprincipled.”
The school district also has supporters rallying around it, including the American Civil Liberties Union (ACLU), which has urged the justices to affirm the 9th Circuit’s ruling.
In an amicus brief, the ACLU told the court that speech by on-duty school officials at a school-sponsored event such as a high school football game “bears the strong imprimatur of the school.”
“Public schools must welcome students of all religions and those of none,” the group wrote. “That obligation is compromised when school officials take it upon themselves to convey (whether intentionally or not) religious messages.”
The group added, “Public schools thus have a constitutional duty to prevent their personnel from engaging in behavior that will place the school’s imprimatur on religious doctrine or activity.”
The amicus brief by Gossett, of the law firm Davis Wright Tremaine, includes testimony from former professional and college athletes who say that coach-led prayer is “inherently coercive” on team members.
“The record here demonstrates that Mr. Kennedy’s actions had the propensity to, and did, lead players to feel compelled to participate in Mr. Kennedy’s expressions of faith even if they would rather not have done so,” they wrote. “Accordingly, amici urge the Court to affirm the decision of the Ninth Circuit below and re-affirm the bedrock principle that in the captive setting of a public school, ‘the government may not coerce [children] to support or participate in religion or its exercise.’”
The school district may be in for a tough fight given that the conservative-dominated Supreme Court in recent years has tended to be highly sympathetic to religious interests.
The case, Kennedy v. Bremerton School District, will be argued Monday, with a decision expected by the summer.