Supreme Court says Bremerton coach had a right to pray on field

“The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression,” the opinion said.

Lower courts had sided with the Bremerton School District, but the case was watched closely to see if the conservative majority on the Supreme Court would turn the tide in favor of Joe Kennedy, a former Bremerton High School assistant football coach — and set precedents that challenge the long-standing separation of church and state in public schools.

Kennedy v. Bremerton School District is just one case before the Supreme Court this year centered on religion in public schools. In another case, Carson vs. Makin, the Supreme Court has decided that if the state of Maine allows some public funding of rural private schools it must also allow that money to be spent for private school tuition.

Kennedy’s attorney told the court that the school district violated Kennedy’s First Amendment rights by punishing him after he continued to pray on the field. While Kennedy regularly prayed on the field after games and was joined by students, he and his attorneys insist that it was a private prayer and not in his capacity as a coach.

The district argued that Kennedy, as a coach, violated the Constitution’s establishment clause preventing public officials from endorsing one religion over another. Attorneys for the school district showed photos of Kennedy praying while holding a football helmet and presented testimony from a Bremerton player who said he felt pressured to join Kennedy when he didn’t want to.

At the end of the 2015-16 school year, Kennedy’s contract was not renewed and he did not reapply for his job. While Kennedy has not coached in Bremerton since then, he said he wants his job back.

University of Washington law professor Robert Gomulkiewicz told Crosscut before the opinion was released that it’s possible that the ruling in Kennedy v. Bremerton School District could offer guidance to teachers and coaches on appropriate expressions at school.

“There are coaches that want to kneel in support of Black Lives Matter. They want to take a knee. And there are coaches that want to take two knees to pray because they’re Islamic. There are other teachers that want to express themselves about whatever issue is affecting them. Maybe they want to wear a rainbow T-shirt during Gay Pride Month,” he said.

“Students, teachers and coaches can bring those free speech rights into the school. And so for those of us who like freedom of expression, that’s a good thing,” Gomulkiewicz said.

But while teachers and coaches’ rights to free expression have already been accepted, religious expression makes things complicated. The justices will also weigh on whether athletes and students feel pressure to conform because of the power dynamics of school and teams, he said.

“The Supreme Court for the last 100 to 200 years is trying to figure out what does it mean to establish religion,” he said. “When is something the individual expression of a teacher or coach or student, and when has it become the state establishing a religion?”

Many of the justices’ questions during oral arguments in April centered on whether student-athletes felt pressure to join the prayers and how private Kennedy’s prayers were.

During the oral arguments, Justice Brett Kavanaugh, who has coached school sports, asked Kennedy’s attorneys about the unspoken pressure to join with a coach in prayer.

“What about the player who thinks, if I don’t participate in this, I won’t start next week, or the player who thinks, if I do participate in this, I will start next week, and the player, like, wants to start?” Kavanaugh asked. “Because every player’s trying to get on the good side of the coach. And every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, etc.”

Other justices questioned whether the district could say definitively that Kennedy was acting as a coach and not as a private citizen when he knelt down to pray in public.

“If we disagree with you that this was government speech, so if we think this was private speech, we don’t even get into the establishment clause because there’s no state action, right?” Justice Amy Coney Barrett asked the school district’s lawyers.

The stakes in the case are high, with national legal firms representing both sides. The district is represented by the Americans United for the Separation of Church and State. Kennedy’s case is being handled by the First Liberty Institute, which takes on cases of people who say their religious rights are being curtailed by the government.

Since Barrett replaced the late Justice Ruth Bader Ginsburg on the high court, there has been a clear conservative majority, and many observers before the opinion was released predicted an advantage for Kennedy, as well as for the parents who sued the state of Maine.
The Supreme Court ruled earlier this month against the owner of the Smuggler’s Inn in Blaine, near the Canadian border, and blocked him from suing a Border Patrol agent for allegedly violating his First and Fourth Amendment rights.

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