Yesterday, the Supreme Court heard a case of a proselytizing football coach that could unravel decades of church/state jurisprudence and open the door to public school employees effectively pressuring children to adopt their religion, whether or not that’s their stated goal.
(That, by the way, would be an outcome far more serious that the “groomer” lies spread by conservatives about LGBTQ+ teachers and their allies.)
I’ll talk about the oral arguments in a bit, but it’s worth remembering what this is all about.
The case history
The case involves 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 be renewing 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 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, 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 latest battle
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 on the Court, they 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’s 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!) There’s no Christian mandate to pray at midfield after a high school football game. 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’s bullshit, too. 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. 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 Oral Arguments
Yesterday, the judges heard the case, and there’s little reason to believe Kennedy will lose. The conservatives wouldn’t have taken up this case after this years-long history of defeat if it meant just doing what every other court has done. The question now is what this Court will say is legal and what the consequences of that will be. Because if Kennedy’s actions are deemed perfectly fine on a broad scale, you can bet Christian teachers and coaches across the country will 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, there’s no reason to think he’ll rule against Kennedy.)
The three liberal justices all pointed out 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 is that the Court will use this case to eradicate other long-standing rocks in the Wall of Separation. The Lemon Test said 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 could overturn that precedent. There’s also a “coercion” test which says the government can’t coerce anyone into religious behavior, but if Kennedy comes out a winner, then that test would be weakened or useless, too, as some players have already said they felt compelled to pray with Kennedy even though they didn’t want to.
Americans United for Separation of Church and State, whose Legal Director Richard B. Katskee argued on behalf of the school district, is worried what the Court could do here even though the facts and legal precedence are on their side:
“If the Supreme Court gets this case wrong, we could witness the greatest loss of religious freedom in generations,” said Rachel Laser, president and CEO of Americans United. “We’re on very dangerous ground if the Court is considering overturning decades of established law that prevents government employees from pressuring students to pray in public schools. The facts of the case, the laws of our country, and religious and nonreligious Americans alike are on the side of protecting students’ religious freedom.”
The Freedom From Religion Foundation, which filed an amicus brief in the case, echoed the concerns while also pointing out this entire case should be moot because Kennedy doesn’t even live in the state anymore:
FFRF filed a compelling amicus brief before the Supreme Court that argued the case has become moot. After losing in the district court, Joe Kennedy sold his home in Washington and moved approximately 2,800 miles to Pensacola, Fla. FFRF explained in its brief that this move is problematic for Kennedy because a Florida resident cannot sue a Washington school district over its policies. FFRF’s brief cites ample case law establishing that when a plaintiff leaves the state under circumstances such as Kennedy’s, the case cannot continue.
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. It seems like they’ll do it here, too.
(Large portions of this article were published earlier)