Reading Time: 9 minutes

Yesterday, the Supreme Court announced that it would take up the case of a public school football coach who wouldn’t stop praying on the field and was subsequently fired. The fact that at least four justices wanted to hear this case likely spells another massive hole in the wall between church and state and could, at least in theory, lead to more Christian zealots employed by public schools proselytizing on the clock.

There’s a lot of backstory here, but it’s vital to understand if you’re curious about how these issues play out in real time.

The case history

The case involves Joe Kennedy, the former assistant football coach at Bremerton High School in Washington, who wanted to pray on the 50-yard line after games — a move that predictably made him the center of attention for students and media outlets.

Could he pray silently? Yes. Could he pray in a locker room privately? Yes. But he didn’t want to do either of those things because Christians like him aren’t interested in the act of praying; they’re narcissists who want to persuade others to convert to Christianity… then wear the mantle of a martyr when government officials say they can’t do that.

Screenshot

In 2015, he continued praying publicly despite several warnings that he was violating the law. That December, the district said they wouldn’t be renewing his contract, which led to him filing a federal lawsuit against them in August of 2016. A federal district court judge refused to overturn the District’s decision. So Kennedy’s lawyers from First Liberty appealed the decision, and in August of 2017, the Ninth Circuit Court of Appeals ruled against him too. That should’ve ended the case.

But Kennedy tried again, asking the entire Ninth Circuit to give his case another look. They declined in January of 2018. That June, his lawyers threw the Hail Mary pass, asking the Supreme Court (then with a 5-4 conservative majority) to reconsider his appeal.

The Supreme Court declined to take up his case — thank goodness — but four of the conservative justices (everyone except Chief Justice John Roberts) issued an explanation of why they weren’t taking up this case.

In short, they felt there were too many “important unresolved factual questions” that would make it “difficult if not impossible” to decide the case.

Their main concern hinged on the question of whether his firing violated his free speech rights.

The district said they fired him over the prayers because (1) he wasn’t supervising his players at the time like he was supposed to and (2) reasonable observers might think his prayers represented school-sponsored religion. Justice Samuel Alito wrote for the conservatives that the first concern would be a legitimate one for the district, and Kennedy had no proof he was off-duty at those times:

… [Kennedy’s] free speech claim would have far greater weight if petitioner was likely to be able to establish either that he was not really on duty at the time in question or that he was on duty only in the sense that his workday had not ended and that his prayer took place at a time when it would have been permissible for him to engage briefly in other private conduct, say, calling home or making a reservation for dinner at a local restaurant.

Unfortunately, the District Court’s brief, informal oral decision did not make any clear finding about what petitioner was likely to be able to prove.

Alito added that the four justices would gladly have overturned the earlier ruling if the facts supported Kennedy, but those facts just weren’t there. It’s not that the facts went against him; they just weren’t established. So the conservatives had nothing to point to in order to say the district was wrong.

Alito also hinted that another case could help the conservatives tear down the wall between church and state because the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students. Under this interpretation of Garcetti, if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.

You didn’t have to be a lawyer to understand how misguided that passage was. No church/state separation group has ever said teachers should be punished for private expressions of faith, even within the sight of students. You won’t see the Freedom From Religion Foundation filing a lawsuit over a teacher who quietly prays during recess. Those groups only take action when the teacher pressures kids to join in. That’s what coaches do when they participate in prayers. That’s what administrators do if they pray over the loudspeaker. But the conservatives on the Supreme Court were suggesting liberals would balk at any sighting of a public school staffer doing something religious during the work day.

It was a completely misleading interpretation of the law.

Alito finished his statement by mentioning that the Court wouldn’t hear Kennedy’s case on Free Speech grounds, but they could theoretically hear it “under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.” But at the time, the question in front of them regarded Free Speech, and on those grounds alone, the Court couldn’t take up his case.

The latest battle

So Kennedy and his legal team tried again. This time, they were trying to make clear all the facts of the case so that SCOTUS couldn’t say those matters were unresolved.

In March of 2020, U.S. District Court Judge Ronald B. Leighton shot down an attempt at summary judgment in Kennedy’s favor. That was good news for church/state separation. It meant the “facts” that his side was trying to establish were in doubt.

For example, was Kennedy on or off the clock when he was praying on the field? (That would be the difference between legal private prayers and illegal public ones.) The judge said:

… while this case exists near the crossroads of these concerns, Kennedy’s prominent, habitual prayer is not the kind of private speech that is beyond school control… Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.

… Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line.

Was the District within its rights to fire him? Again, the judge said yes because they had good reason to be concerned. Just look at what the judge said about the coercive factor of his prayers:

… even more than the perception of school endorsement, the greatest threat posed by Kennedy’s prayer is its potential to subtly coerce the behavior of students attending games voluntarily or by requirement. Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy’s absence.

It’s exactly what atheists had been saying all along when it came to why public school coaches shouldn’t be leading or participating in prayers with students.

Did the District violate Kennedy’s First Amendment rights? Nope, said the judge.

The District gave Kennedy multiple options to continue praying after games that would not have amounted to a violation. Kennedy, however, rejected these accommodations and did not respond to the District’s requests for further input. In light of this, Kennedy’s Free Exercise claim cannot succeed.

Was his firing the result of religious discrimination? No again.

… There is no evidence that Kennedy’s religion itself, rather than the unconstitutional time and manner he expressed it, motivated the District’s actions. All the evidence shows that the District wanted to accommodate Kennedy’s faith and encouraged constitutional religious expression.

… the District had a legitimate, non-discriminatory reason for placing Kennedy on leave: avoiding a constitutional violation. The undisputed evidence demonstrates that this was the District’s rationale, and Kennedy presents no evidence that the District’s actions were merely pretext to punish him for his religion.

It was just a complete shutdown of every argument Kennedy and his Christian allies were claiming.

But because conservative Christians can’t admit they’re not being persecuted, his side appealed again.

In March of 2021, the Ninth Circuit once again shot down his claims in a unanimous decision agreeing with the district court. Here was Judge Milan D. Smith Jr.:

Although there are numerous close cases chronicled in the Supreme Court’s and our current Establishment Clause caselaw, this case is not one of them

Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties. BSD tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him.

There was also this telling footnote from the judges calling out Kennedy’s lawyers for selectively asking them which pieces of evidence to accept and which to ignore:

Such a myopic view of the events leading to litigation simply does not tell the whole story — like attempting to decipher the plot of “The Wizard of Oz” by viewing a still photograph of Dorothy awaking in her bed at the end of the film.

The bottom line here is that every single court that has weighed in on the matter has ruled against Kennedy. More importantly, even if there was some unresolved issue regarding prayer in school, this case isn’t a controversial one!

And yet this past September, after the full Ninth Circuit chose not to look at this case again, Kennedy’s lawyers once again asked the Supreme Court to take up the case. They raised two questions they wanted the Court to settle:

1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.

2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

It’s downright laughable that Kennedy’s public displays of piety — after football games where he’s serving as a coach — are considered “brief” and “quiet.” If a Muslim coach did what Kennedy is doing, conservative Christians would never stop complaining about it. It wouldn’t be so harmless to them if someone was trying to spread Islam or Satanism or atheism instead of Christianity.

And yet the Supreme Court’s conservative super-majority has now decided to take up this case — and we can only assume it’s because they want to carve out a way for religious public school employees to pray in front of students.

The Reactions

The Freedom From Religion Foundation is already sounding an alarm:

“By granting review in this case, the Supreme Court is threatening to upend decades of strong separation of state and church precedent in our public schools,” comments FFRF Legal Director Rebecca Markert. “No student should ever be made to feel excluded—whether in the classroom or on the football field—because they don’t share the religious beliefs of their coaches, teachers, or fellow students.”

Markert reported that FFRF will be working on an amicus brief to ensure nonbelievers’ voices are heard on this important issue.

“The ultraconservative majority on the Supreme Court seems to be as out of control as the omicron variant,” warns Annie Laurie Gaylor, FFRF co-president. “The cherished secular principle our nation is predicated on is soon going to be on life support if we don’t see court reform.”

Americans United for Separation of Church and State, which represents the school district and will argue this case in front of the Supreme Court, urged the Court to not make things worse:

“No child attending public school should have to pray to play school sports. No student should ever be made to feel excluded – whether it’s in the classroom or on the football field – because they don’t share the religious beliefs of their coaches, teachers or fellow students,” said Americans United President and CEO Rachel Laser.

We urge the Supreme Court not to fall for what a Ninth Circuit judge has called the ‘deceitful narrative’ that the coach’s attorneys have presented. This case is not about a school employee praying silently during a private religious devotion. Rather, this case is about protecting impressionable students who felt pressured by their coach to participate repeatedly in public prayer, and a public school district that did right by its students and families,” Laser added. “The lower courts have repeatedly ruled in the school district’s favor, and the Supreme Court should likewise recognize that the Bremerton School District did the right thing to protect the religious freedom, and ultimately the safety, of children.

Kennedy always had the right to pray. What he was doing was making a giant spectacle of it in a way that was overt and coercive. But conservatives have hijacked the Supreme Court in order to make sure Christians like Kennedy, who care more about promoting their faith than helping students, always have the upper hand.

Looks like they’re well on their way to finally getting their wish.

(Large portions of this article were published earlier)

Hemant Mehta is the founder of FriendlyAtheist.com, a YouTube creator, podcast co-host, and author of multiple books about atheism. He can be reached at @HemantMehta.