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Coach Prayer Case at High Court to Test Limits of Religious Acts

Jan. 20, 2022, 10:15 AM

A U.S. Supreme Court case pitting a former high school football coach against the school district that fired him for mid-field prayer after games will explore the confusing boundaries that surround religious expression at work.

Joe Kennedy, the former coach of the Bremerton High School Knights, contends that his free speech and religious exercise rights to have a “solitary” or “private prayer” at work are at risk after the U.S. Court of Appeals for the Ninth Circuit in March sided with the Bremerton School District in Washington. The district, however, says that the law is clear and that validating such behavior would impermissibly expand the rights of public school employees and harm students and parents.

“The fact that the court has taken up this case raises the worry that it might rewrite this long-settled law. That would affect all public schools and all government offices,” said Richard Katskee, attorney with Americans United for Separation of Church and State, which represents the school district. “If the Supreme Court said a public school coach had the rights to demand this kind of public prayer, they’d be powerless to stop any religious coercion.”

Conservative members of the court— Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaughpreviously signaled that the ruling against Kennedy was “troubling.” The high court on Jan. 14 agreed to hear arguments in the case after a divided Ninth Circuit declined to take up the case as a full court.

A broad cross-section of interested parties asked the Supreme Court to review the case, including a coalition of 24 states, federal and state lawmakers, religious institutions, two former professional football players—Steve Largent and Chad Hennings—and former football coach Tommy Bowden.

“Americans of faith do not turn their devotion off and on like a light switch, and we must reject any attempt by the government to control private religious expression or risk driving the faithful from not only public service, but also public life,” said Matt Sheehan, attorney for Advancing American Freedom, which filed a friend-of-the-court brief. “This case is particularly important because the Ninth Circuit’s reasoning can be used by the government to curtail or outright prohibit a significant portion of religious expression that the First Amendment protects.”

Ninth Circuit Decision

Kennedy previously asked the high court to hear his case when he failed to secure an early court order to restore his job and allow him to pray. The justices denied that request and sent the dispute back to the Ninth Circuit, where a three-judge panel ruled on March 18 in favor of the school district.

The former coach called that decision a “triple threat to individual liberty and First Amendment values.”

The case centers on whether a public-school employee who says a “brief, quiet prayer” by himself at school, visible to students, is engaged in government speech without any First Amendment protection, and whether a school is required to prohibit such expression, Kennedy said.

The district’s attorneys paint a different picture, arguing the coach’s behavior was far from private. The appeals court only addressed Kennedy’s individual behavior, not the broader “hypothetical” questions he claims it did, Bremerton says.

The Supreme Court in 2000 ruled that a prayer over a loudspeaker at a New Mexico school event violated the Establishment Clause, a key issue in Kennedy’s case as well. The provision is part of the First Amendment’s prohibition against the government “establishing a religion.”

The Ninth Circuit cited that case as a compelling reason to side with the school district, but the coach’s attorneys argue that the case didn’t involve private prayer in the view of students, but rather prayers broadcast through an intercom.

‘Clearer Doctrine’ Needed

The high court has never been clear about what test to use to determine when a public employee’s exercise of religion might cause the government to violate the Establishment Clause of the First Amendment, said Steven Collis, a law professor at the University of Texas School of Law who specializes in the First Amendment and heads the law and religion clinic.

Collis said a parallel would be whether a Muslim teacher wearing a hijab would be considered freedom of expression. The Ninth Circuit’s reasoning in the Kennedy case is arguably a similar test that could be expanded, Collis said.

“This case is an opportunity for the court to provide much-needed clarity,” he said by email. “Currently, too many public employers are confused about how to handle the religious exercise of their employees, who, in turn, are fearful of losing their jobs or being reprimanded simply for outwardly expressing their inner faith identity. A clearer doctrine from the Court would help lower courts, public employers, and their employees know better how to handle these types of situations and could reduce the number of conflicts we see in this area.”

The court will likely reverse the Ninth Circuit’s decision, said Rick Claybrook, a Washington, D.C.-based attorney for the Southern Baptist Convention, which also filed an amicus brief. He said the appeals court relied on the fact that others voluntarily joined the coach in prayer, but that it wasn’t a surprise the court would reconsider that decision.

“People have a right to complain and show solidarity when they agree that government officials are violating the Constitution,” Claybrook said.

School District Dilemma

Kennedy’s right to privately pray was never in question, the school district said. In a statement after the Supreme Court granted the petition to hear the case, attorneys at Americans United for Separation of Church and State said the school district followed the law to protect students’ religious freedom by firing Kennedy.

Students were pressured by their coach to participate in public prayer, and Kennedy spurned options the district provided to pray in ways that wouldn’t interfere with students’ religious freedom, said the district’s lawyer, Katskee.

These cases are rare and depend on the specifics of the expression involved, he said, but the law should be clear on when a policy violates the Constitution. He noted a similar case in 2008 in which the Third Circuit upheld a school district policy banning a coach from bowing his head during his team’s pre-meal grace and taking a knee with his team during a locker-room prayer.

“If a school district can’t control their own activities and events, and employees can hijack those activities, the government won’t be able to do its job,” Katskee said. “The reason these disputes aren’t common is because for decades, it’s been well understood what the law is.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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