Joseph Kennedy was dismissed from his job as a football coach at a public high school because he knelt to pray at midfield at game’s end. His suit against the Bremerton, WA, school district was argued at the Supreme Court on April 25, during which Kennedy claimed he had rights to free speech and free religious exercise. Justices have to first decide whether he was a government speaker before ruling on the coach’s rights.
The Establishment Clause
“Congress shall make no law respecting an establishment of religion.” That clause in the First Amendment has been applied to the states and long interpreted to prohibit government officials from conducting activities favoring any particular religion or religion over non-nonreligion. So in the case just argued, Kennedy vs. Bremerton School District, the first question justices need to decide is whether the prayers were exclusively “government speech” or private speech.
Kennedy’s lawyer, former Solicitor General Paul Clement, told the justices the location of the coach’s prayers (at the 50-yard line) was incidental to the expression of his First Amendment rights. However, for the school district, the location and manner of those prayers made all the difference. According to the school district, the establishment clause should control, but the students’ rights under the clause trump the rights of the coach. Accordingly, it offered the coach a private area to pray after games. He refused and then publicized the upcoming prayers. According to Richard Katskee, the school district’s attorney, Kennedy claimed the public prayers said aloud are “how I make these kids better people.”
Yay God, Boo Devil
If a high school principal, for instance, said daily Christian prayers over the public address system, that would be unconstitutional. Alternatively, if a teacher on her lunch break sat in the parking lot and said grace to herself, that would be permitted. What about Coach Kennedy? If his speech was exclusively government speech, then it’s unconstitutional. If there is at least some private speech element to it, then what?
The Bremerton school district said it must restrict Kennedy’s prayers, or it will violate the students’ rights. The coach is an employee, so it said his prayers constitute an impermissible establishment of a religion from its students’ perspective. The arguments went for almost double the usual time as justices piled on different hypotheticals for the advocates to address. Finally, Brett Kavanaugh, himself a girls’ basketball coach, stated, “Every player is trying to get on the good side of the coach.” That’s the school district’s case right there.
We’ll soon see how oral arguments translate into decisions by the Court. This is the last week that arguments are scheduled for this term. Opinions in all argued cases are expected to be released by early July.