The Supreme Court’s conservatives appear likely to rewrite the rules for allowing religious prayer in public schools after arguments were heard Monday in a case involving a football coach who prayed on the field’s 50-yard line after games.
Even if the court ultimately adopts a narrow ruling in favor of the praying football coach, it would make a notable chip in the legal structure established during the 20th century to separate church and state. That would be a major victory for the Christian religious right, which has been engaged in grassroots organizing to put religious prayer back in schools since the Supreme Court’s 1962 ruling barring it from public schools. That same group backed the nominations of all six of the Supreme Court’s current conservative justices.
One obstacle to a broad ruling overturning decades of precedent is that the facts in the case of Kennedy v. Bremerton School District are highly disputed.
The case centers on the actions of Joe Kennedy as the football coach at a public school in Washington state. As a coach, Kennedy was known to mix religious prayer into motivational talks he gave to players. He also led students on his team and opposing teams in silent religious prayer at the 50-yard line after football games.
In 2015, the school became aware of his religious prayers after receiving a complaint from an opposing team’s coach. The school tried to accommodate him by saying he could continue to give motivational talks to his players as long as they remained secular and that he could continue to pray, as long as it was somewhere more private than in the middle of the football field. After initially complying, Kennedy hired a right-wing legal nonprofit to represent him and launched a media campaign to claim persecution and bring attention to his prayers.
The media blitz resulted in partisan attention to his cause as right-wing media rallied around him. It ended after he went to lead his post-game prayer at the 50-yard line and a crowd of supporters rushed the field in what a lower court deemed a “stampede” that the school district argued put students in danger. The school district then put Kennedy on administrative leave. Kennedy filed the lawsuit claiming his right to religious expression was denied. He subsequently moved to Florida.
Kennedy’s lawyer, Paul Clement, sought to frame the case solely around a single instance of the coach silently praying at the 50-yard line after a football game. However, Richard Katskee, an attorney for Americans United for Separation of Church and State who argued for the school district, sought to include the whole record of Kennedy’s prayers and refusal to compromise with the district.
Another dispute arose over whether Kennedy was acting in his official capacity as a public school football coach after the conclusion of a game. Clement argued that Kennedy was not acting in such a capacity because the game was over and players could go to the locker rooms as they pleased. The court’s liberal justices, however, noted that Kennedy was required to stay after games for post-game talks with his players, cleanup and making sure students and the crowd got home safely.
There were also differences between the two sides about the legal principle at issue when the school district placed Kennedy on administrative leave. Katskee argued that the school district’s sanction of Kennedy was on strong legal grounds as his public prayers raised the possibility that students would feel coerced into joining them. But conservative justices brought up the school district’s initial claims, from filings with the Equal Employment Opportunity Commission, that it could sanction the coach over the fear that his prayers could constitute a government endorsement of religion.
Amid the wide variance in the acceptance of the facts of the case, the justices largely questioned the two lawyers about a range of hypothetical situations, as opposed to the actual one at hand.
Could a math teacher tell students the class was taking a five-minute break to pray, Justice Elena Kagan wondered. Can the school fire a teacher who wears a “Nazi swastika” as part of their religious beliefs and leads students in prayer, Justice Sonia Sotomayor asked. What about if the coach makes a political statement like kneeling during the national anthem to protest racial injustice, Justice Clarence Thomas wanted to know. Or if they waved a Ukrainian flag in protest of Russia’s invasion, Justice Samuel Alito asked. And what if Kennedy stood at midfield with his arms raised and gave an audible prayer, Chief Justice John Roberts asked.
What is clear in regard to the case is that the conservative justices are extremely likely to side with Kennedy. This was known well before the arguments, as Alito wrote a concurrence joined by Justices Neil Gorsuch, Brett Kavanaugh and Thomas regarding the Kennedy case in 2019 noting their support for the claims brought in it. They are likely to have a majority with the conservative Justice Amy Coney Barrett now on the bench.
The only question is how far a ruling goes in scaling back the limits placed on school prayer in public schools during the 20th century. The new post-Barrett court has already issued far-reaching rulings increasing protections on religious liberty, especially Christian religious liberty. This case looks likely to join those in the pantheon of decisions that will define early 21st-century jurisprudence.