A high school coach’s personal act of prayer on a football field in Washington state is protected by the First Amendment, Kansas Attorney General Derek Schmidt told the U.S. Supreme Court on Tuesday.
Schmidt joined 23 other state attorneys general in filing a brief asking the Supreme Court to review and reverse a 9th Circuit Court of Appeals ruling that allowed the Bremerton School District to punish coach Joseph A. Kennedy for praying alone on a football field in view of his students.
“Courts have repeatedly confirmed that the mere presence of private, protected religious speech on a school campus does not constitute an endorsement such that it brings the school within the ambit of an Establishment Clause violation,” the attorneys general argued in the brief. Further, they said the 9th Circuit’s decision “impermissibly curtails public employees’ right to express themselves as citizens.”
The case is Joseph A. Kennedy v. Bremerton School District. A copy of the brief is available at https://bit.ly/3AWyOri.
The attorneys general say they want to protect an individual’s right to pray, but that is not what this case was about. If you want to read what the U.S. Court of Appeals for the Ninth Circuit published, it is available at https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf.
Kennedy shifted from being a private citizen saying a prayer to being a representative of the school endorsing a particular faith to students and a larger audience.
The court notes that a teacher who bows her head and prays before eating lunch in a school cafeteria is expressing her personal religious freedom, a right that is guaranteed by the First Amendment. It apparently started that way for Joseph Kennedy, but eventually he did more than that. Originally, he felt called to kneel at the 50-yard line immediately after games and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship and spirited competition. Spectators, students, parents and community members observed his religious conduct and eventually Bremerton High School players asked to join him. He said that was also their right.
But over time, his actions grew to include the majority of the team and sometimes members of the opposing team. Kennedy’s religious practice evolved to delivering short motivational speeches at midfield after games, as participants kneeled and he held up a helmet from each team. Sometimes his speeches contained religious content. He may say he was just enjoying his personal right to religious expression, but as a coach hired to influence youth at a public school, he was a government official and a person in authority promoting his religion.
People loved this at first. You can’t start the school day with “The Lord’s Prayer” nowadays, but what’s wrong with sneaking a little religion to a crowd after a football game? (Not that just anyone has access to this pulpit.)
The high school principal eventually received a parent’s complaint that his son “felt compelled to participate” in Kennedy’s religious activity. Even though he was an atheist, “he felt he wouldn’t get to play as much if he didn’t participate.”
Kennedy was advised to cut it out, but then he felt put upon. Rather than follow his school administration’s requirement to stop engaging in this behavior, Kennedy became a national hero as he began interacting with the media. He was not re-hired to coach for another year, and so he sued.
The court ruled that Kennedy’s action on the football field “a location that he only had access to because of his employment – during a time when he was generally tasked with communicating with students, was speech as a government employee.” In other words, he wasn’t just quietly praying, he was endorsing a particular faith, and he was doing so as the school’s coach. That action established his religious belief as favored or preferred over other beliefs, with the school’s stamp of approval. School is not the place for that
Our attorney general should know that..
