The first line of the Supreme Court ruling this morning in Kennedy v. Bremerton, about a Christian football coach who wanted to pray at midfield after games, is built on two lies. And it only gets worse from there.
Writing for the 6-3 majority, Justice Neil Gorsuch wrote, “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks.” He didn’t lose his job; he quit. And there was nothing “quiet” about a prayer he staged for maximal exposure. Today’s decision nullifies the safeguards to church/state separation, including the Lemon Test and the endorsement test, creating an awful situation for students who don’t subscribe to conservative, performative Christianity. It will have the effect of coercing children in public schools to adopt the religion of their coaches if they want to remain on those adults’ good side, whether or not the Religious Right admits it.
I’ll talk about the decision in a bit, but it’s worth remembering what this is all about.
What the Kennedy case was all about
The case involved Joe Kennedy, a 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.
In 2015, he continued praying publicly despite several warnings that he was violating the law. That December, the district said they wouldn’t automatically renew his contract, which led to him filing a federal lawsuit against them in August of 2016. Despite losing in a district court, then an appellate court, then again by the full appellate court, Kennedy’s lawyers from right-wing legal group First Liberty appealed the decision directly to the Supreme Court in 2018. At the time, the Court had a 5-4 conservative majority. They declined to take up his case, saying 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 not having his contract renewed violated his free speech rights.
The district said they didn’t ask him back because (1) he wasn’t supervising his players like he was supposed to during his prayer ritual and (2) reasonable observers might think his prayers represented school-sponsored religion. Justice Samuel Alito, writing for the conservatives, said the prayers might be okay if Kennedy could prove he was off-duty. Alito also suggested that the district may have interfered with the “free speech rights of public school teachers,” as if kneeling on a football field for maximal attention right after a game was simply an extension of a coach’s free speech.
The Supreme Court took up the football coach case for no good reason
So Kennedy and his legal team tried again, attempting to resolve those facts for the conservatives on the Court.
In March of 2020, a district court shot down that attempt at summary judgment. For example, was Kennedy on or off the clock when he was praying on the field? The judge said his “prominent, habitual prayer is not the kind of private speech that is beyond school control.” Was the District within its rights to fire him? Absolutely. The judge said “the greatest threat posed by Kennedy’s prayer is its potential to subtly coerce the behavior of students attending games voluntarily or by requirement.”
It’s exactly what atheists had been saying all along when it came to why public school employees shouldn’t be leading or participating in prayers with students. This wasn’t about stopping Kennedy from practicing his faith. The district gave him plenty of opportunities to pray in private. But this wasn’t about God. This was about Kennedy showboating to make himself look better in front of an audience that loves pretending to be persecuted.
Naturally, his lawyers appealed, and an appellate court rejected that wish… again. One of those judges even said, “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…”
The lawyers asked the full Ninth Circuit to give the case another crack and, again, they said no.
The bottom line here was that every single court that weighed in on the matter ruled against Kennedy. This wasn’t a controversial case by any means.
But last September, with a 6-3 conservative super-majority, the Supreme Court finally agreed to hear the case. Most church/state experts feared that this was only happening because those conservatives wanted to carve out a way for religious public school employees to pray in front of students without penalty.
We know that because of how dishonest Kennedy’s allies have been this whole time. Just look at how his own lawyer talked about him:
“Nobody should be fired from their job for just being religious,” said Jeremy Dys, special counsel for litigation and communications at First Liberty Institute, a legal nonprofit representing Kennedy.
That was always bullshit, of course. Kennedy wasn’t fired for being religious. (He wasn’t even fired! He was placed on paid leave! Then, after his contract expired, he didn’t bother to reapply for the position the following year! That lie permeated his case so thoroughly that even the New York Times‘ “The Daily” podcast spread the lie for him before later correcting it.)
There’s no Christian mandate to pray at midfield after a high school football game, either. Kennedy was fired because, instead of doing his job, he used his position to advertise his faith in a way that was arguably coercive to students. If a Muslim or Satanist coach did what Kennedy did, the Christian Right would never stop whining about it.
Kennedy said he just wanted to do a “brief, quiet prayer” after a game. That was also bullshit. He literally promoted what he was doing in local media and urged his own players to let the other team know about his prayer ritual so they could join in later, too. That midfield prayer eventually became “a 500-person stampede that injured multiple people.” And it’s not like these prayers were after the game. As law professor Caroline Mala Corbin noted, “he simply would not have had access to either the team or the football field but for his job,” and he was on the clock while he conducted his shenanigans.
The district gave him plenty of chances to pray briefly and quietly just as they should have. But, again, Kennedy didn’t care about praying. He wanted attention. And his lawyers were all too eager to lie about that in order to make this seem like a case of religious persecution when it’s not.
The Supreme Court oral arguments pointed in Kennedy’s favor
When the judges heard the case back in April, there was little reason to believe Kennedy would lose. The conservatives wouldn’t have taken up this case after its years-long history of defeat if it meant just doing what every other court has done. The question was what this Court would say is legal, and what the consequences of that would be. Because if Kennedy’s actions were deemed perfectly fine on a broad scale, you could bet good money that Christian teachers and coaches across the country would start using their power to promote Jesus instead of doing what’s in the best interest of their students.
That’s not to say the judges weren’t aware of that.
Brett Kavanaugh asked Kennedy’s lawyer to address a hypothetical player who felt compelled to join him at midfield for prayer because he thought he needed to in order to play. The response was pathetic: “If any coach or teacher does it, shame on them and they should be punished.” Which sounds great but ignored the fact that Kennedy was doing just that. (Despite Kavanaugh’s excellent question, he joined with the majority, proving once again that he has no problem when people are pressured to do something against their will.)
The three liberal justices all pointed out during oral arguments that the consequences of Kennedy’s prayers were very real:
Justices Sonia Sotomayor and Elena Kagan pointed out that parents said their sons felt pressure to join the coach in his on-field prayers.
Retiring Justice Stephen G. Breyer said history shows that religion can be “divisive,” and the court should enforce a separation of church and state.
Several of the other justices’ questions seemed intent on giving them other outs that could lead to a decision in Kennedy’s favor but for reasons that could go a variety of ways. Neil Gorsuch, for example, asked whether this case should be sent back to lower courts so they could focus on the coercion issue rather than the endorsement of religion one.
Legally speaking, the real fear was that the Court would use this case to eradicate other long-standing bricks in the Wall of Separation. The Lemon Test says all laws must have a secular legislative purpose, but Gorsuch and Kavanaugh suggested that was no longer the standard. The “endorsement test” says the government can’t endorse a religion, yet that’s what Kennedy (a public school employee) was doing, so a victory for him would overturn that precedent. There’s also a “coercion” test which says the government can’t coerce anyone into religious behavior, but if Kennedy came out a winner, then that test would be weakened or useless, too, as some players had already said they felt compelled to pray with Kennedy even though they didn’t want to.
A result against the school district, coming a week after the further erosion of church/state separation in the Carson v. Makin case, would be a devastating one-two punch against actual religious freedom. And it would’ve come even as Kennedy packed up and moved to Florida, arguably making the entire case moot. (Further perpetuating the Christian Right’s version of the case, The New York Times‘ Adam Liptak said of Kennedy on “The Daily” that he went “to go out and visit him in Bremerton, Washington,” even though the audience was never told Kennedy no longer lives there.)
The Supreme Court took a sledgehammer to church/state separation
Today’s decision is every church/state lawyer’s nightmare come true. It ignores every semblance of common sense that says Kennedy wanted to broadcast his Christianity to the masses in the most attention-grabbing way possible, which was only possible because of his job as a coach. Gorsuch says that his prayers were okay because they took place after the game, during a time when coaches were free to check their phones or greet “friends and family in the stands.” And if coaches are allowed to do those things, he argued, then they must be allowed to pray as well. As if checking a phone is the same kind of coercive activity.
That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
What about the argument that the prayers might coerce kids to join in to get on the coach’s good side? Gorsuch just accepts Kennedy’s argument that such an interpretation would be unintentional:
[Kennedy] has repeatedly stated that he “never coerced, required, or asked any student to pray,” and that he never “told any student that it was important that they participate in any religious activity.”
That’s… not how coercion works. It doesn’t matter if he told kids to join in; what matters is what they might reasonably assume. A Christian player who joined in the midfield extravaganza would reasonably be held in higher esteem compared to a similar prayer who actively rejected the sideshow. Gorsuch just says “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society’,” as if Kennedy wasn’t doing this for attention.
Gorsuch also argues that a push for religious neutrality amounts to an endorsement of secularism:
… the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students. In essence, the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.
None of that is accurate. Teachers, coaches, and administrators can pray privately, wear a headscarf or cross necklace, or talk about their faith in general terms. Kennedy wanted to use his position to promote Christianity. It explains the time, location, and nature of his prayer spectacle. None of that matters to this Court.
In their dissent, the three liberal justices argue that today’s ruling guts the Establishment Clause, effectively saying state-sponsored religion is okay. They write that Kennedy’s prayers were neither “private” nor “quiet.”
Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman… and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision… In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.
Maybe the most damning response to the conservative justices’ mythological version of the case is this passage detailing the effect Kennedy’s showboating actually had:
In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members… The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.
Joe Kennedy was a shitty football coach who made his colleagues’ lives worse, and yet he acted like a victim based on the reaction to his post-game performative prayers.
What about the coercion? It was absolutely present, said the dissenters:
… The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates. Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work.
Legally speaking, the dissenters say the Court treats the Free Exercise Clause as more important than the Establishment Clause: Someone’s right to pray always overrides the government’s interest in maintaining religious neutrality.
Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.
The decision also does away with the previous tests that were in place to balance someone’s freedom of religion with the government’s requirement for religious neutrality, replacing them with a nod to “historical practices and understandings” (which, not surprisingly, benefits Christians more than most). It’s a result the Christian Right has been wanting for decades and they finally got it.
What does the Supreme Court football coach decision mean in practice?
In the short term, you can expect today’s ruling to lead to more elaborate displays of performative Christianity by conservative coaches who work at public schools. Using a system of winks and nudges, there’s nothing stopping public school officials from claiming some religious right to broadcast their religion to the masses.
It’s not just coaches, either. Teachers may start praying between classes in the most public way possible, as students exit and enter their classrooms, creating an arms race for Jesus. What’s stopping lunch periods from becoming public church services? The Supreme Court wants to dismantle secular public schools and this decision is yet another way to achieve it.
And make no mistake: This is all about Christianity. Religious minorities don’t pull stunts like this, nor would they. Today’s decision is a gift to the worst kind of Christians, who believe public displays of their faith are a requirement because their God is too weak to hear private prayers.
The irony in today’s decision is that Kennedy’s not about to get his job back. He moved away from Bremerton years ago. He threw the Molotov cocktail, then ran the hell away. This isn’t about him. It never was. This was a right-wing attempt to use a guy like him to shove conservative Christianity into public schools, and because of this Republican-packed Court, they got their wish.
The reactions to the Kennedy ruling
American Atheists is alarmed by the repercussions:
“The Supreme Court just opened the door for coercive prayer to return to our schools. It shows just how far toward theocracy we’ve slid in recent years,” said Nick Fish, president of American Atheists. “Students are, and always have been, allowed to pray. But giving coaches, teachers, and other authority figures the green light to engage in the sort of coercive prayer at issue here is nothing less than an outright assault on the religious freedom of young people by this out-of-control Court.”
…
“The Supreme Court will inflict serious damage on students with this decision,” warned Geoffrey T. Blackwell, Litigation Counsel for American Atheists. “Coaches greatly influence the lives of student athletes, both on and off the field. They determine whether students sit or play—even whether they have a shot at a full-tuition college scholarship. Whether intentional or not, Kennedy’s behavior coerced students to pray so they could stay on their coach’s good side and get playing time.”
…
“This is another example of the Supreme Court playing favorites,” said Alison Gill, Vice President for Legal & Policy. “Christian plaintiffs like Kennedy, with claims that should be dismissed, are instead permitted to bring their cases to the highest court in the land, in order to further certain Justices’ ideologically biased agenda.”
Americans United for Separation of Church and State, whose Legal Director Richard B. Katskee argued on behalf of the school district, called the ruling the “greatest loss of religious freedom in generations.” Here’s President and CEO Rachel Laser:
“This decision represents the greatest loss of religious freedom in our country in generations. This court focused only on the demands of far-right Christian extremists, robbing everyone else of their religious freedom. It ignored the religious freedom of students and families.
“As the network of religious extremists and their political allies behind this case celebrate victory, we can expect them to try to expand this dangerous precedent – further undermining everyone’s right to live as ourselves and believe as we choose. Americans who value freedom and equality – especially for public school students – must rededicate themselves to reestablishing the separation of church and state across the United States.”
The American Humanist Association called it a “devastating blow to the cornerstone of our democracy”:
“This ruling is a devastating blow to the cornerstone of our democracy: the wall separating church and state,” says AHA Legal Director and Senior Counsel, Monica Miller. “To abandon the Lemon test is to abandon separation of church and state as we’ve known it for decades.”
…
“There is no place for religion in our public schools. Students should never feel pressured or obligated to take part in religious activities, like prayer, in order to feel they belong to a team or any school community,” comments AHA Executive Director, Nadya Dutchin.
The Freedom From Religion Foundation, which filed an amicus brief in the case, denounced the ruling’s “far-reaching consequences“:
FFRF Senior Counsel Patrick Elliott emphasizes, however, that the Supreme Court’s prior precedents protecting public school students from prayers imposed by school officials remain good law. “Any coaches or teachers that think this decision gives them free rein to abuse their position and impose prayers on a captive audience of students would be sorely mistaken,” he adds.
“Today’s decision will hurt vulnerable public school children who deserve protection from religious intrusion,” says Rebecca S. Markert, FFRF legal director. “FFRF will continue to fight for the rights of students to be free from proselytizing public school personnel.”
…
“Today’s ruling strikes yet another blow against the rights of conscience of students by an ultraconservative Supreme Court hell-bent on privileging religion,” remarks Annie Laurie Gaylor, FFRF co-president. “The extremist majority is signaling its hostility to more than 75 years of Supreme Court precedent ensuring that a captive audience of public school students are free from religious indoctrination, ritual and coercion.”
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 if the conservatives on the Court have taught us anything, it’s that they’ll always rule in favor of religion at all costs, no matter who gets hurt in the process. They did it during the pandemic. They’re doing it here, too.
Writing before today’s decision was announced, but right after the Makin decision came down, The Nation‘s Elie Mystal summarized this Court’s continued evisceration of church/state separation, and it looks even more damning when you see it all together like this:
There is no meaningful check anymore on whether conservatives will allow religious concerns to supersede secular laws. Can businesses run by religious people deny health care to women? Yes, according to Burwell v. Hobby Lobby Stores. Can religious schools use public funds to upgrade their school playgrounds? Yes, according to Trinity Lutheran v. Comer. Can the state be forced to give scholarship aid to students attending religious education? Yes, according to Espinoza v. Montana Department Of Revenue. Can religious organizations or institutions get state funds to discriminate against LGBTQ couples in adoption services? Yes, according to Fulton v. City of Philadelphia. Can houses of worship ignore occupancy restrictions during a pandemic? Yes, according to Roman Catholic Diocese of Brooklyn v. Cuomo.
Now, the Supreme Court has ruled that taxpayer funds must be used to pay for tuition at religious schools if the state also makes taxpayer dollars available for private, nonsectarian schools.
We can now add one more item to that list. Can public school coaches use their authority to shove their faith in the faces of students? Yes. And we’re all going to be worse off because of it.
(Large portions of this article were published earlier. This post is still being updated.)