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SCOTUS Is Full of Questions as Justices Consider Case of Praying Football Coach

The nine Supreme Court justices pose for a group picture in 2021

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

The Supreme Court of the United States heard oral arguments Monday in what has become known as the “praying football coach case.” Stylized as Kennedy v. Bremerton School District, the case pits one man’s desire to exercise his personal religious beliefs against a school district’s efforts protect its students from religious coercion; in legal terms, it’s the latest example of Free Exercise Clause versus the Establishment Clause. During oral arguments, the justice traded seemingly hypotheticals, attempting to tease out which facts in the underlying dispute might be most impactful for the ultimate verdict.

Joseph Kennedy was the head coach for the junior varsity football team and an assistant coach for the varsity team at Bremerton High School from 2008-2015. Inspired by the 2006 movie Facing the Giants, Kennedy’s practice was to kneel and pray on the 50-yard line after every football game. Kennedy explained in an interview that he would “just turn, face the scoreboard, take a knee, thank God, and walk off” the field. According to Kennedy, he was simply fulfilling a personal pledge to “give [God] the glory after every game, win or lose.” The prayer typically lasted about 10 seconds, and students were not required to join Kennedy.

Initially, Kennedy prayed alone. According to court documents, when students asked whether they might join him, Kennedy told them that it was “a free country,” and said, “You can do what you want.” Eventually, most students opted to pray with their coach, sometimes even inviting the opposing team to join in.

Over time, Kennedy’s practices evolved into his giving short motivational speeches at midfield after games during which students kneeled around Kennedy. During these speeches, Kennedy raised a helmet from each team and delivered prayers. At trial, the school principal testified that a parent complained that his son “felt compelled to participate” in the on-field prayers or risk losing playing time.

In 2015, the coach of an opposing team alerted the Bremerton School District about Kennedy’s prayers. The district reprimanded Kennedy and advised him to discontinue his practices.

Kennedy halted his praying for a few weeks, but resumed in direct contravention of the district’s instructions and contacted local media to alert them of the developing situation. Then, at a game after which Kennedy delivered an audible prayer at the 50-yard line, media personnel and game attendees caused a commotion.

In response, the school district put Kennedy on administrative leave. At that time, the head coach recommended that Kennedy’s contract not be renewed, and Kennedy failed to even apply for the position that following season. Kennedy instead started a federal lawsuit against the district, alleging that his First Amendment free speech and free exercise rights had been violated.

The district court granted summary judgment in favor of the school district, the U.S. Court of Appeals for the Ninth Circuit affirmed, and Kennedy filed a petition at SCOTUS.

The justices heard nearly two full hours of oral argument Monday (double the scheduled time), most of which was spent offering up compare-and-contrast style hypotheticals to the attorneys arguing for Kennedy and the Bremerton School District. Right from the start, the justices tried to tease out the significance of the specifics of Coach Kennedy’s prayers.

Justice Sonia Sotomayor asked Bremerton School District attorney and former U.S. Solicitor General Paul Clement whether a teacher’s reading aloud from the Bible during, before, and after class time would be considered part of the teacher’s work day. When Clement responded that regulation of teachers’ personal activities must be “neutral” Sotomayor pressed him at length.

“Why does it have to be a neutral rule?” the justice asked. “She’s on duty in the classroom,” Sotomayor continued, “And the duty is not from the beginning to the end of the bell.” “The duty is while she’s in the classroom,” Sotomayor pointed out, asking: “So whey can’t an employer tell an employee what they’re permitted to do (personal or otherwise) during that time?”

Before allowing Clement to fully answer, Sotomayor commented that she “found it odd” in his brief that he “just kept saying the coach wasn’t on the field during the game,” when Kennedy said a dozen times that his duties continued for hours after the game ended.

Chief Justice John Roberts focused not on the timing, but on the nature of Kennedy’s actions. Roberts asked, “What if the activity on the field did not consist of kneeling down briefly, but something more extensive?” The chief justice offered the example of standing up on the 50-yard line with arms outstretched engaging in audible prayer.

Justice Amy Coney Barrett furthered Roberts’ hypothetical, adding that the coach might say the “Our Father” prayer and asking how that might affect the applicable precedent.

Justice Stephen Breyer commented that “One of my problems in this case is that the parties have different views of the facts,” and adding, “This may be a case about facts and not much about law.”

Justice Elena Kagan took her turn arguing about the facts. She observed to Clement that Kennedy would not be contesting the district’s authority to discipline him if he had been praying during (as opposed to after) the post-game talk. Clement agreed that such a case would indeed be different, as it would constitute government speech.

“I don’t really quite know why that’s the operative question” Kagan said.  She continued, bringing the discussion to a key aspect of Establishment Clause analysis, “I’m going to suggest that if you look at our prayer cases, the idea of why the school can discipline him is that that puts a kind of undue pressure, a kind of coercion, on students to participate in religious activities when they do not wish to.”

Clement responded that not only had the school district not argued that Kennedy’s actions constituted coercion, but also that the facts do not show that any students were coerced.

“If… the coach says ‘I’m going to go to midfield when the players are doing something else and if anyone asks if they can join, I’m going to say it’s a free country,’ that’s not coercion,” argued Clement.

Justice Sotomayor, however, offered a very different take on whether Kennedy’s students might have felt pressured to join in his prayer.

She pointed out that “16-year-olds can’t be expected to be adults,” and that the record showed that parents had complained that their children felt pressured to pray. “And what do we do with the fact that a coach from another team was the one that brought [Kennedy’s praying] to the school’s attention?” she asked,”doesn’t that suggest the kind of coercion Justice Kagan was talking about?”

Sotomayor next asked Clement why the district could not simply discipline its own employee after that employee refused to abide by school rules and even exacerbated the situation. She noted that the school offered Kennedy an accommodation to pray elsewhere, and instead, he not only insisted on praying aloud on the 50-yard line, but also publicized the dispute and “created a problem that interfered with the school’s work.”  The justice commented, “I don’t know of any religion that requires you to get at the 50-yard line —the place where post-game victory speeches are given.”

Clement responded that athletes often do just what Kennedy did, offering the example of Tim Tebow‘s famous on-field prayers. “That’s where the event that they’re thankful for took place,” Clement explained.

Justice Breyer commented, “This doesn’t seem like a new problem,” explaining, “it seems like a line-drawing problem about the 50-yard line just after the game when the school said ‘don’t do it on the 50-yard line, do it ten minutes later.'”

Justice Brett Kavanaugh argued that it would be difficult to evaluate the Establishment Clause issues raised by the school district, because “every player is trying to get on the good side of the coach.” Kavanaugh and Barrett ended the questioning by taking turns raising hypotheticals about school districts’ power to regulate teachers who run off-campus prayer groups at their private homes.

Attorney Richard Katsee argued for the Bremerton School District, and said that Kennedy’s actions not only pressured students, but also divided the coaching staff and caused a media “zoo” at a football game.

Justice Clarence Thomas asked Katsee how the district would respond if, instead of taking a knee in prayer, Kennedy had done so during the national anthem to protest the immorality of racism. Katsee answered that school districts must have the authority to control their programs.

With Katsee at the podium, the justices continued to pepper him with tailored hypotheticals. Kavanaugh asked about a coach who prays on the field after the game, but during a time when he is not required to supervise the student players. Breyer asked about a teacher who prays with students during class time when the district has explicitly forbidden prayer.

Justice Samuel Alito asked whether Bremerton would have fired Kennedy for running on field and waving a Ukranian flag to protest the Russian invasion. Alito then asked whether a school could take adverse action against an employee simply because that employee “is very, very visibly religious,” perhaps running a religious YouTube channel. Katsee responded that a district generally would not be able to do that.

Kennedy v. Bremerton School District is the latest SCOTUS battle between an individual’s right to free exercise of religion and a government entity’s responsibility to avoid establishment clause violations. In Shurtleff v. Boston, the Court considered whether the City of Boston had the right to deny a religious group a permit to fly a flag outside City Hall. The Court is expected to rule on that case in the coming months.

Coach Kennedy is supported in this litigation by numerous amici, including the Conference of Catholic Bishops, more than two dozen members of Congress, and several current and former professional football players including Kirk Cousins, Joe Delamielleure, Nick Foles, Phil Olsen, Christian Ponder, Drew Stanton, Harry Swayne, and Hall of Famer Jack Youngblood. Hall of Famer Steve Largent also filed a brief.

Attorneys for the parties did not immediately respond to request for comment.

[image via Erin Schaff/Pool/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos