July/August 2022 Church & State Magazine

First Amendment Fumble: Supreme Court Rules In Favor Of Wash. Football Coach Who Wants To Pray With Students

  Liz Hayes

The greatest loss of religious freedom in our country in generations.”

That was how Americans United President and CEO Rachel Laser described the U.S. Supreme Court’s decision in favor of football coach Joseph Kennedy in AU’s case, Kennedy v. Bremerton School District, on June 27. The ruling was the third strike against church-state separation within a week, coming on the heels of the court’s decisions to force taxpayers to fund private religious education and to abolish the constitutional right to abortion.

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” Laser said to the press. “It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.

“This decision represents the greatest loss of religious freedom in our country in generations,” Laser continued. “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.”

The 6-3 opinion, written by Justice Neil M. Gorsuch and joined by the five other conservative justices, bought into what a circuit court judge had called a “deceitful narrative” presented by the coach’s attorneys that Ken­nedy’s prayers were private and that students didn’t feel pressured to join.

“Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment,” Gorsuch concluded. “And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”

In her dissent that was joined by Justices Stephen G. Breyer and Elena Kagan, Justice Sonia Sotomayor called out the majority for ignoring reality: “To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demon­strative prayers on the 50-yard line of the football field. Ken­nedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.”

Sotomayor took the unusual step of including photos in her dissent – one shows Kennedy standing on the field circled by a crowd of kneeling student players with their heads bowed. Kennedy holds two football helmets in the air as he addresses the huddle. It’s one of the photos Americans United included in court briefs to demonstrate that Kennedy’s prayers were anything but personal, private or quiet as his lawyers have claimed.

“The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District stated that it was suspending Kennedy to avoid it being viewed as endorsing religion,” Sotomayor continues. “Under the Court’s analysis, presumably this would be a different case if the District had cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access to the field as grounds for suspending him. As the District did not articulate those grounds, the Court assesses only the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice.”

Indeed, the majority’s opinion focuses primarily on the final three games Kennedy coached in fall 2015 before the district placed him on paid administrative leave for refusing to stop praying with students. The court set aside Kennedy’s 7-year history of praying with students on the field and in the locker rooms, just as it set aside the district’s reports that parents came forward to say their children felt pressured to join Kennedy’s prayers.

“Notably absent from the opinion was any mention of the religious freedom that was really in jeopardy – that of every student and family, not just in Bremerton public schools, but in public schools around the country,” Laser said during a press conference after the decision was released. “The court was not concerned for the students who feel like they have to pray to play.”

During the press conference, several members of the media questioned what would happen next – would Kennedy soon be coaching again at Bremerton School District?

“We have serious doubts about whether Kennedy really wants to coach again [at Bremerton], no matter what he might be saying now, because he lives in Florida,” said Richard B. Katskee, AU vice president and legal director, who argued the case on behalf of the school district. “But let’s set that aside for the moment. The school district will certainly comply with the court’s ruling.”

Katskee said even as the Supreme Court ruled in Kennedy’s favor, the justices still made an important distinction about the involvement of students in Kennedy’s, or any public school employee’s, prayer practice. According to the majority opinion, Kennedy specifically said he would be willing to pray without students – for example, when the students were heading to the locker room or to the bus. That was central to the court’s ruling.

“It isn’t what Kennedy actually demanded at the time – not at all,” Katskee said. “The rewriting of history that the court is doing is important, though, because it underscores what school districts can and must still do: They have to ensure that their employees don’t coerce or pressure students to pray or take part in religious exercises contrary to the students’ and their families’ faith.”

In a statement released by AU, Bremerton School District said it “will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff. We look forward to moving past the distraction of this 7-year legal battle so that our school community can focus on what matters most: providing our children the best education possible.”

In addition to ignoring the facts and the concerns about coercion of public schoolchildren in this specific case, the court’s conservative majority also drove a nail in the coffin of the Lemon Test – the 51-year-old court precedent that established a comprehensive, three-pronged test for determining whether government action violates religious freedom. Just days earlier, the court overturned another precedent set a half-century ago in Roe v. Wade, to legalize abortion.

“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,” Sotomayor wrote in her dissent. “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,” So­to­mayor concluded. “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. I respectfully dissent.”

Laser fears the decision, coupled with the court’s other attacks on church-state separation this term, will embolden the shadow network of Christian nationalist groups who are supporting these cases and legislative efforts around the country seeking to force everyone to live by their beliefs. Laser called for a national recommitment to the separation of church and state – a key pillar of American democracy.

“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,” she said. “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.”

Laser promised that Americans United will continue to defend and protect religious freedom, which is inextricably tied to our other personal liberties, by fighting in the courts, legislatures and the public square for freedom without favor and equality without exception.

“Make no mistake, after 75 years we are in the fight of our lives,” Laser said at the end of her remarks to the press. “The work Americans United is doing matters more than ever before. We will never give up. And if our democracy is to survive, we must prevail.”

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