In an important 6-3 religious freedom decision from the U.S. Supreme Court, the high court ruled that a public high school in Washington state violated Coach Joe Kennedy’s rights when it disciplined him – and ultimately refused to re-hire him – for taking a knee and praying quietly at the 50-yard line after football games.
For seven years, the coach took a knee to pray after games. Sometimes he was joined by players. He never pressured anyone to join him. In 2015, however, someone from another school commented positively about the coach’s practice, and his school district quickly moved to restrict the practice, suggesting that he pray elsewhere on school grounds where no one would be around to see him.
He resisted the pressure, and the ensuing controversy led to his not being re-hired. A lawsuit followed, and seven years later, our nation’s highest court agreed that Kennedy’s religious rights had been violated.
The decision, importantly, corrects the mistaken impression that many public school districts and other government entities have that religious speech and actions must be suppressed in order to avoid the First Amendment’s prohibition against the “establishment of religion.”
The majority opinion, written by Justice Neil Gorsuch, says, “That reasoning was misguided.”
The court rejected the argument of the school district that the coach’s praying amounted to religious “coercion” of students, and since the school district is a government entity, it needed to avoid sponsoring such expressive activity.
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s,” Gorsuch wrote. “Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The court examined whether Kennedy’s “speech” – i.e., his prayer – was private speech or job-related. The distinction is crucial.
“[W]hat matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach,” Gorsuch stated. “And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.”
But, the school district argued, even if Kennedy’s prayer was “private speech,” the district had the important duty of ensuring that his private speech didn’t “offend” a “reasonable observer” who might conclude that the school district was “endorsing” religion.
Gorsuch responded to that argument by saying the high court has “made plain, too, that the Establishment Claus does not include anything like a ‘modified heckler’s veto, in which … religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’”
The majority also dismissed any notion that Kennedy’s prayers were “coercive” in any respect.
“But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”
The majority opinion is broad enough to clarify a First Amendment issue that has troubled public schools and their employees for decades. It will, for example, serve to protect teachers who bow their heads to give thanks over their lunch in the cafeteria, or teachers who wear religious garb or a cross. The majority opinion mentioned those examples specifically.
But its reasoning should also apply to school personnel who speak out on a matter of public concern while on school grounds but in a non-teaching situation, such as when teachers respond to a personal question from a student or another teacher about a matter of faith.
It should even protect coaches and teachers who bow their heads respectfully while students pray.
“The Constitution neither mandates nor tolerates that kind of discrimination,” Gorsuch wrote.
Kennedy is represented by attorneys with First Liberty Institute. In an email to the Daily Citizen, First Liberty’s President, CEO and Chief Counsel Kelly Shackelford celebrated the win.
“This is a tremendous victory for Coach Kennedy and religious liberty for all Americans,” Shackelford said. “Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired. We are grateful that the Supreme Court recognized what the Constitution and law have always said – American’s are free to live out their faith in public.”
What happens next for Coach Kennedy? Will he get his old coaching job back? Will the district be forced to pay him for his lost wages over the years since he lost his job? The Daily Citizen will keep you informed as this case wraps up in the lower courts.
Justices Thomas and Alito wrote separate concurring opinions. Justice Sotomayor wrote a dissenting opinion in which Justices Breyer and Kagan joined.
The case is Kennedy v. Bremerton School District.
Photo from First Liberty Institute.