High school football coach scores big win at Supreme Court over post-game prayer

The Supreme Court handed a big win to a former Washington high school football coach who lost his job over reciting a prayer on the 50-yard line after games.

At issue was whether a public school employee praying alone but in view of students was engaging in unprotected "government speech," and if it is not government speech, does it still pose a problem under the First Amendment's Establishment Clause. 

The Supreme Court ruled Monday in a 6-3 decision that the answer to both questions is no.

"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. 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," Justice Neil Gorsuch wrote in the Court's opinion. "Religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination."

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Joe Kennedy was a junior varsity head coach and varsity assistant coach with the Bremerton School District in Washington from 2008 to 2015. He began the practice of reciting a post-game prayer by himself, but eventually students started joining him. According to court documents, this evolved into motivational speeches that included religious themes. After an opposing coach brought it to the principal's attention, the school district told Kennedy to stop. He did, temporarily, then notified the school that he would resume the practice.

The situation garnered media attention, and when Kennedy announced that he would go back to praying on the field, it raised security concerns. When he did pray after the game, a number of people stormed the field in support.

The school district then offered to let Kennedy pray in other locations before and after games, or for him to pray on the 50-yard line after everyone else had left the premises, but he refused, insisting that he would continue his regular practice. After continuing the prayers at two more games, the school district placed Kennedy on leave.

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The school district's reasoning was that if they allowed Kennedy, their employee, to pray on the field at a school game, it would violate the First Amendment's Establishment Clause, which protects separation of church and state.

"That reasoning was misguided," the majority opinion said. "Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. "

Gorsuch stated that not just the Constitution, but "the best of our traditions" call for "mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike."

The Court's ruling also stated that there is a distinct reason for why speech like Kennedy's is protected by both the Free Speech and Free Exercise Clauses.

"That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent," Gorsuch wrote.

The Court explained why Kennedy's prayer is not government speech, even though he was a government employee. The opinion stated that his words were not "pursuant to a government policy," he was not "seeking to convey a government-created message," and he was not acting in the normal scope of his duties because  the game was over, he was not providing instruction or game strategy, and that he prayed at a time when he was free to do other things like "attend briefly to personal matters."

Justice Samuel Alito also recognized in an concurring opinion that Kennedy prayed "while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities."

The Court's majority opinion noted that Kennedy had "voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students," and that the school district only took action against him "only for his decision to persist in praying quietly without his players after three games in October 2015."

At the District’s request, he voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students. The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015."

A dissenting opinion from Justice Sonio Sotomayor, who was joined by Justices Elena Kagan and Stephen Breyer, claimed that the majority's opinion "misconstrues the facts" of the case.

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"The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field," Sotomayor wrote. "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 also pointed to claims that players had felt pressured to join Kennedy out of a desire to win favor and playing time. During oral arguments, Kennedy's attorney addressed the assertion that Kennedy' prayer had a coercive effect, noting that the school district did not bring it up as a reason for ending his employment.