WASHINGTON — The Supreme Court conservative majority on Monday appeared to be looking for a narrow way to rule in favor of a former high school football coach who lost his job for praying at the 50-yard line after his team’s games.
The task was complicated by actual differences of opinion about the behavior of the coach, Joseph A. Kennedy, and the various reasons the school district in Bremerton, Washington, offered to discipline him.
The case juxtaposes the rights of government employees to freedom of expression and the free exercise of their faith with the Constitution’s prohibition on government endorsement of religion and Supreme Court precedents prohibiting pressure on students to participate in religious activities.
In his eight years as an assistant coach at Bremerton High School, Mr. Kennedy prayed regularly after the games, with students often joining him. He also led and participated in locker room prayers, a practice that neither he nor his lawyers now defend.
In 2015, after an opposing coach told the principal he thought it was “pretty cool” for Mr. Kennedy to be allowed to pray on the field, the school board instructed Mr. Kennedy not to pray if it interfered with his duties or involved students. would be. †
The two sides disagree on whether Mr. Kennedy has complied.
A school official advised against renewing the coach’s contract for the 2016 season, and Mr. Kennedy did not reapply for the position.
According to Paul D. Clement, one of Mr. Kennedy’s attorneys, the case now focused solely on whether his client could offer a short, silent, and solitary prayer of thanks after his team’s games. Previous episodes were irrelevant, Mr Clement said.
“Coach Kennedy was fired for that midfield prayer, not past practice,” said Mr. Clement, adding that the actions of the school district protect Mr. Kennedy’s First Amendment.
Richard B. Katskee, a lawyer for the Bremerton School District, said it had the right to require its employees to refrain from public prayer if students felt compelled to participate.
“He insisted on audible prayers at the 50-meter line of students,” said Mr. Katskee about mr. Kennedy. “He announced in the press that through those prayers he is helping these children to become better people.”
Mr. Katskee was challenged by some of the more conservative judges, who said the district had initially argued that it might dissuade Mr. Kennedy from praying on another ground: that the school would be seen as an advocate of religion by to allow it. They suggested that the fear of coercion was a retrospective rationalization.
“One of the difficulties of this case is getting our hands on the rationale of the district,” Judge Neil M. Gorsuch said.
Judges across the ideological spectrum peppered the lawyers with hypothetical questions. Chief Justice John G. Roberts Jr. asked if Mr. Kennedy could have prayed aloud while standing with outstretched arms. Judge Amy Comey Barrett went further: “Let’s just say he says the Lord’s Prayer with outstretched arms and it’s starting to wreak havoc in the stands.”
Judge Samuel A. Alito Jr. asked if mr. Kennedy would be disciplined for protesting the invasion of Ukraine, climate change or racial injustice. Judge Sonia Sotomayor questioned whether a public high school can “discipline a coach who decides to put a Nazi swastika on their arm and go to the center of the field and pray.”
Judge Brett M. Kavanaugh asked if a school could “fire the coach for the sign of the cross just before the game.”
The lawyers responded by suggesting lines for the judges to draw. Mr Clement said it mattered whether a coach’s speech had “an instructional component” and whether a religious exercise was fleeting.
mr. Katskee said it mattered whether the coach “put himself in the center of attention at the center of the field”.
Justice Kavanaugh, himself a basketball coach, said the possibility of coercion is an authentic problem.
“What about the player who thinks, ‘If I don’t participate in this, I won’t start next week?'” he asked, adding that “every player is trying to get on the right side of the coach.”
Justice Kavanaugh said the solution was elusive. “I honestly don’t know how to deal with that,” he said.
Mr Clement said the school district had not relied on that argument. “This is not a case where the government took action because of concerns about coercion,” he said. “The record is crystal clear that they were concerned about approval.”
He added that Mr Kennedy’s actions in no way amounted to coercion. “If the coach is alone in midfield and says a fleeting 15-second prayer,” he said, “if you call that coercion, you’re committing a major category error.”
Both Chief Justice Roberts and Judge Alito indicated that they wanted the facts of the case to be simpler.
“What if all that was off the table?” Chief Justice Roberts asked Mr. Katskee, referring to the confused history of Mr. Kennedy’s dispute with the school district. “It’s just the coach going to midfield, kneeling – taking a knee – and that’s it?”
Judge Alito also presented a simplified version of the controversy. “Forget all the complicated facts in this case,” he told Mr. Katskee.
mr. Katskee said the hypothetical questions were a closer question than the one actually before the court.
The tenor of the questioning by the conservative members of the court was not surprising, as four of them had issued statements challenging a preliminary ruling in favor of officials of the United States Court of Appeals for the Ninth Circuit in San Francisco. .
“The Ninth Circuit’s understanding of free speech for public school teachers is troubling and may warrant revision in the future,” Judge Alito wrote at the time. He was joined by Judges Gorsuch, Kavanaugh and Clarence Thomas.
“What is perhaps most disturbing about the view of the Ninth Circuit,” added Justice Alito, “is the language that can be understood to mean that a coach’s duty to serve as a good role model requires that the coach abstains from any manifestation of religious belief – even if the coach is clearly off duty.”
After further proceedings, a unanimous three-member jury from the Ninth Circuit again ruled against Mr. Kennedy, saying school officials had the right to ban his public prayers over possible violations of the government’s First Amendment ban on establishing religion. to prevent.
The entire Ninth Circuit declined to rehearse the case over the objections of 11 judges. The two sides strongly disagreed on how to characterize Mr. Kennedy’s actions.
Judge Milan D. Smith Jr., the author of the panel’s opinion, wrote that “Kennedy made it his mission to weave religion into football.”
In response, Judge Diarmuid F. O’Scannlain said the panel’s opinion was backward. “It goes without saying that teachers should not ‘cast off’ their First Amendment protections at the gate of the schoolhouse,” he wrote, citing a 1969 Supreme Court ruling. “Yet the opinion in this case overturns such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and within earshot of others, is subject to plenary scrutiny by the government.”
On Monday, Justice Stephen G. Breyer said the Kennedy v. Bremerton School District case, No. 21-418, presented unusual challenges. “This may be about facts and not really much about the law,” he said.
