Supreme Court conservatives appear sympathetic to former high school coach who led prayers after games

By Ariane de Vogue, CNN Supreme Court Reporter

Several conservative Supreme Court justices on Monday appeared sympathetic to the arguments of a public high school football coach who said his constitutional rights were violated when he was suspended for praying at the 50-yard line after games.

At the center of the case is former coach Joe Kennedy, who told CNN in an interview that “every American should be able to have faith in public and not to be worried about being fired over it.” Kennedy, a Christian, says his prayers were meant to fulfill a covenant to praise God after every game, “win or lose.”

“I think it is important to keep our promises — especially to God,” he said.

At arguments the justices explored whether Kennedy was praying as a private citizen or a school employee whose speech would not be protected by the First Amendment.

Justice Clarence Thomas, asking the first question, suggested Kennedy’s prayer was private. “We know it is not a part of his job,” Thomas said, stressing the fact that early in the coach’s tenure, the school had not even even aware that he was praying at the 50-yard line.

“This wasn’t ‘Huddle up, team,’ ” Justice Brett Kavanaugh said, noting that Kennedy never asked his players to pray with him. At another point, Kavanaugh said Kennedy’s prayer wasn’t even audible to all the players.

Justice Neil Gorsuch suggested that tolerating a teacher’s religious speech does not necessarily mean that a public school is endorsing religion in violation of the separation between church and state.

“If we thought the school district misunderstood the Establishment Clause teachings of this court, what should we do?” he asked a lawyer for the school district.

For their part, the liberal justices seemed sympathetic to the argument that a coach’s action could put improper pressure on students who may not share the coach’s religious beliefs.

Justices Elena Kagan and Sonia Sotomayor expressed concern about students feeling coerced to participate in the coach’s prayers. And Justice Stephen Breyer questioned how a school district would deal with the fact that other religious believers might think the district was endorsing Christianity over other religions.

“I’m going to just sort of suggest,” Kagan said, “the idea of why the school can discipline him is that it puts some kind of undue pressure, a kind of coercion, on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion.”

Debate over church and state

For critics of Kennedy, the case represents a possible first step toward reimposing prayer in public schools and blurring the lines between church and state. But supporters counter that the case turns on free speech rights.

“It is a case about protecting all individuals’ right to speak freely — and to pray — in the public square,” Richard W. Garnett, a law professor at the University of Notre Dame, said in a statement.

Kennedy served as an assistant coach for Bremerton High School’s varsity football team and head coach for the school’s junior varsity squad in Washington state. He alleged that his rights were violated when the school district prohibited him from praying at the conclusion of football games, potentially surrounded by students and members of the community.

The district said it never disciplined him from offering silent, private prayers — a practice that began in 2008 soon after he was hired — but things changed after players joined him on the field and the crowd was still in the stands.

A photo of Kennedy praying, with about 20 players in uniform kneeling with him, is a part of the record.

Kennedy was ultimately put on paid administrative leave and suspended from the program. After the season, he was given a poor performance evaluation. He did not seek a new contract but instead filed suit, arguing that the school district had violated his rights under the First Amendment.

He lost his case at the district court level and before the 9th US Circuit Court of Appeals. The appellate court held that Kennedy’s prayer amounted to governmental speech that is not protected by the First Amendment.

“Kennedy spoke as a public employee when he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents,” the court said. Even if Kennedy had been speaking as a private citizen, the court said the school had a justification for treating him differently from other members of the public to avoid the appearance that the school was endorsing a particular faith, in violation of the Establishment Clause of the Constitution.

The court said its opinion “should not be read” to suggest that a teacher couldn’t bow her head in silent prayer before a meal in the school cafeteria, calling that type of expression of a “wholly different character” from a coach who “insisted that his speech occur while players stood next to him, fans watched from the stands, and he stood at the center of the football field.”

The appeals court pointed out that the school district — before placing Kennedy on leave — had offered to accommodate his religious exercise in a way that “would not be perceived as District endorsement of religion” by providing that a private location within the school be made available to him or allowing him to wait until the crowed dissipated before taking a knee.

But Kennedy rejected the accommodations.

“They said I could pray as long as it didn’t interfere with my coaching duties … but the accommodations they gave me completely removed me for a long period of time away from the very job I had been hired to do,” he told CNN.

He said the school district’s accommodation also didn’t sit right with him because he felt it would force him to “hide” who he was.

“There is nothing wrong with prayer — I don’t care who you pray toward, if you have faith or do not have faith — you have the same rights across the board as all Americans of any belief,” he added.

At an earlier phase of the case, when the dispute briefly came before the US Supreme Court, four justices suggested serious doubts about a lower court opinion that had gone against Kennedy. Justice Samuel Alito wrote at the time that the lower court’s understanding of “free speech rights of public school teachers is troubling and may justify review in the future.”

Richard B. Katskee, a lawyer for Americans United for Separation of Church and State, a group representing the school district, told the justices Monday that Kennedy’s prayer practice was “not private, personal prayer.”

Instead, he argued, Kennedy was seeking to pray in his capacity as a coach, and had at one point invited others to join him midfield so he could pray with them.

“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” he said.

But, he said, that is not what Kennedy did. “He insisted on audible prayers at the 50-yard line with students,” Katskee said, and he “announced in the press that those prayers are how he helps these kids be better people.”

He emphasized that even if the court viewed Kennedy’s speech as private, the school district had adequate justification to restrict it because it is entitled to “prevent disruption of and maintain control over school events.”

Katskee noted, for example, that a Satanist group had come forward to demand the same access to the field.

Kennedy told CNN he was stunned by the attention his case has brought.

“It was such a small thing for such a small amount of time, I’m actually lost on the whole situation — it makes no sense to me,” he said.

This story has been updated with details from Monday’s oral arguments.

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