NEW YORK – Religious liberty advocates are hailing a Monday, June 27, Supreme Court decision that a high school football coach had a constitutional right to pray at the 50-yard line after his team’s games as a landmark ruling for religious exercise in public life.
Joe Kennedy, the former coach at the heart of the case, said after the ruling that he was “just glad [he] got to fight for everybody’s rights and their freedoms.” Kelly Shackelford, Kennedy’s lawyer, said the coach will now be synonymous with the free exercise of religion in the U.S.
“There’s never been a case at the Supreme Court on either coaches or teachers and their First Amendment rights with regard to their faith,” said Shackelford, the president and CEO of First Liberty Institute that represented Kennedy in the case. “This is the first one ever, so this is going to set a precedent that protects every teacher, every coach, really will have implications beyond that, even to people who work for the government.”
The case was Kennedy v. Bremerton School District.
The United States Conference of Catholic Bishops had a friend-of-the-court brief filed on its behalf in support of Kennedy on March 2. After the ruling, Cardinal Timothy Dolan of New York, chair of the USCCB Committee for Religious Liberty, reminded in a statement that “we must always remember the importance of prayer in American life.”
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“The freedom to pray is essential to the moral duty all people possess toward the truth,” Dolan said. “The Court’s decision to prevent the forced expulsion of voluntary prayer from public life is a major victory for all Americans who wish to discover and live the truth.”
The June 27 Supreme Court decision concludes a seven-year saga, after Kennedy lost his job at Bremerton High School – a public school – in 2015 and sued in 2016. Lower courts have routinely sided with the Bremerton School District in the case.
Kennedy, a Christian, coached at Bremerton High School from 2008-2015. He began the practice of kneeling and praying at midfield in his first year. It began as a roughly 30-second individual practice, but eventually grew into motivational speeches at midfield after the game that included students, coaches and other attendees from both teams. The speeches often delivered a message containing religious content.
The school district learned of the practice in 2015 and launched an investigation. The school district’s superintendent Aaron Leavell then advised Kennedy that he could continue to give the inspirational talks but said they must remain “secular” to avoid alienating any team members.
Kennedy capitulated at first, but ultimately decided to resume the practice.
The school district responded that it would make a private location available for Kennedy to pray before and after games, or he could wait until the stadium emptied to go to the 50-yard line. Kennedy declined the offer and continued his practice. The coach was ultimately placed on administrative leave on October 26, 2015. He did not apply for a 2016 coaching position after the season ended, and almost a year later filed the lawsuit.
The Supreme Court’s June 27 decision in favor of Kennedy was 6-3, with the court’s three liberal members – Justices Sonya Sotomayor, Stephen Breyer and Elena Kagan – in dissent.
Justice Neil Gorsuch wrote the majority opinion, arguing that Kennedy’s actions were protected by the First Amendment.
“Respect for religious expressions is indispensable to life in a free and diverse Republic – whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Gorsuch wrote. “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.”
Sotomayor wrote the dissent, arguing that the decision does a “disservice” to both schools, and the Nation’s “longstanding commitment to the separation of Church and state.”
“This case is not about the limits on an individual’s ability to engage in private prayer at work,” Sotomayor wrote. “This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.”
“A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so,” she continued.
Bremerton School District, meanwhile, said it’s happy to move on from the case.
“In light of the court’s decision, we will work with our attorneys to make certain the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff,” it said in a statement. “We look forward to moving past the distraction of this seven-year legal battle so that our community can focus on what matters most: providing our children the best education possible.”
Speaking with Crux, William Haun, senior counsel at Becket Fund for Religious Liberty, the organization that filed the USCCB friend-of-the-court-brief argued that the ruling is even farther reaching than that cited by Shackelford.
Haun cited past situations where governments have cited the establishment clause – the clause in the First Amendment that prohibits the establishment of religion by Congress – to say people can’t have religion in public life. These include not allowing religious displays in public areas, religious advertisements on public transit, houses of worship access to public preservation grants, and religious groups access to meeting spaces to public schools after hours.
“The Supreme Court said today that our best traditions, which is what the First Amendment protects, are ones that respect religious pluralism and that sees a value in having people have respect and appreciation for the religious exercise of others in public life,” Haun said.
The Supreme Court’s majority ruling also squashed the longstanding establishment clause precedent set by the 1971 ruling, Lemon v. Kurtzman. That ruling set out what became known as the Lemon Test, which stipulates that for the challenged government practice to remain it must have a secular purpose, must have a principal or primary effect that does not advance or inhibit religion, and cannot foster excessive government entanglement with religion.
Haun said the squashing of Lemon is another key part of the decision “because that’s something that’s used against religious liberty in the lower courts over and over again.”
Follow John Lavenburg on Twitter: @johnlavenburg