Supreme Court to hear religious liberty dispute over high school coach's on-field prayers

Joseph Kennedy likes to think of himself as a "big brother" of sorts to the many students he has mentored over the years as a high school football coach. 

"I remember the hundreds of times I told my players not quit no matter the challenge," he told Fox News this week.

But the former Washington state resident is now in perhaps the biggest fight of his life, one that has taken him all the way to the U.S. Supreme Court in a religious liberty dispute over the limits of exercising one's faith in public.

The nine justices will hear oral arguments Monday on whether the local school district properly suspended Kennedy from his job at Bremerton High School, after he refused to stop praying on the field at the end of games.

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A central question: Is a public school employee who says he is praying by himself while at school and visible to students engaging in "government speech" that lacks any First Amendment protection.

"The whole idea of just because I'm working there, I have no rights anymore as an American?" Kennedy said. "When do I stop representing the school district? And that's what we're kind of asking, just a simple thing: Can I pray after a football game?"

The school district argues that the act was anything but a private moment of reflection, and that it continually involved public prayers with students, some of whom felt pressured to join in the display.

"No child attending public school should have to pray to play school sports," said Americans United for Separation of Church and State president Rachel Laser, the group representing the school district. "No student should ever be made to feel excluded-- whether it’s in the classroom or on the football field-- because they don’t share the religious beliefs of their coaches, teachers or fellow students." 

ACT OF FAITH

Kennedy is an 18-year Marine veteran, who also worked at the local naval shipyard in Bremerton, about 20 miles west of Seattle across the Puget Sound. But high school football is his passion. Returning to his alma mater in 2008, Kennedy started as an assistant varsity coach.

"The prayer after the football game -- that was just myself, I would just take a knee at the 50-yard line after football game," Kennedy told Fox News' chief legal correspondent Shannon Bream. "After a few months, the kids would say: Coach, what are you doing out there? And I just said I was thanking God for what you did. They asked if they could join. And I said: it's America, a free country, you do what you want to do. And that's how that kind of started."

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What began as a 15-30 second Christian blessing "quietly and alone" evolved into something more over time. Players and coaches from his and opposing teams would join him in prayer on the field.

After about seven years, several parents began complaining, including one whose son was an atheist and believed he would not get as much playing time if he failed to join in the post-game prayer.

Another parent, Paul Peterson, whose son played on the team in 2010, said the sight of the coach on the field surrounded by kneeling teammates became a "spectacle," that put pressure on other students to follow.

In their legal brief with the high court, lawyers for the school district argued, "Parents should not have to fear that the messages their children receive in Sunday school will be undermined by competing religious messages Monday morning in English class — or Friday night on the football field."

But Jeremy Dys, an attorney with First Liberty Institute, the group representing Kennedy, said no coercion or instruction was involved.

"Coach Kennedy simply wants to pray by himself at the 50-yard line. That's the commitment he made before God," Dys told Fox News. "They [school leaders] refused to honor that. And now here we are seven years later, arguing about whether or not someone could be fired from their job just because the public can see him engage in a private act of worship."

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TAKING ACTION

School officials say they repeatedly tried to accommodate Kennedy. After formal complaints in 2015, they sent a letter requesting he stop praying with students in the locker room and on the field. The school said he could "engage in religious activity, including prayer, so long as it does not interfere with job responsibilities."

Kennedy initially agreed, but after a month he partially reversed his stance and resumed his original practice of on-field prayers immediately after games.

The coach was then put on paid leave. Both sides dispute whether he was later fired or decided eventually not to return for the following season.

Lower courts have all ruled for the school. The 9th Circuit U.S. Court of Appeals concluded that by kneeling and praying in view of students and parents, Kennedy "spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected."

The Supreme Court initially refused to get involved in 2019, instead ordering a federal appeals court to take a second look at the issues presented. But four conservative justices warned at the time, that appeals court's "understanding of the free speech rights of public school teachers is troubling and may justify review in the future." Joining Justice Samuel Alito and Clarence Thomas at the time were Justices Neil Gorsuch and Brett Kavanaugh, two of President Trump's appointees.

Fast-forward three years, and with a fortified 6-3 conservative majority, the high court may now be poised to rule for Kennedy.

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PRAYER PRECEDENT 

It is a bedrock right of the Constitution's First Amendment:  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Tension between those government and individual principles has been especially acute in the past six decades, as judges have been asked to ensure-- when protecting one side, they do not go too far in violating the other. The Supreme Court has interpreted such laws be enforced in a manner that is neutral toward religion, developing a balancing test when job-related speech may be involved.

The justices in other similar past disputes has generally prohibited public school prayer, even if it is voluntary.

 In a 2001 ruling involving a Texas high school policy allowing student-led, student-initiated prayer at high school football games, the high court found it violated the Establishment Clause of the First Amendment.

"On school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer," the court majority said that was not private, but rather public speech.

 "Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval."

Three conservative justices dissented, including Justice Clarence Thomas, who is still on the court. They said the majority ruling "bristles with hostility to all things religious in public life."

The Supreme Court in separate rulings has also blocked teacher-led prayers in the classroom and at graduation ceremonies, but allowed a student Bible group to meet on campus after class.

In a pending case argued last fall, the high court will soon decide the constitutionality of a Maine program that provides tuition assistance for students without a local public school to attend private institutions, as long as the funding is not used for religious or "sectarian" instruction.

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FINAL DRIVE   

The current dispute has triggered a high-stakes political divide.

Trump featured Kennedy at a campaign event in Virginia in 2016 when running for president.

 "I think that is absolutely outrageous. I think it’s outrageous," Trump said at the time of Kennedy's situation. "I think it’s very, very sad."

Supporting legal briefs have been filed in this current appeal by former Vice President Mike Pence, and separate coalitions of former professional football players, 24 conservative states, and GOP senators.

Groups on the other side include other retired NFL players, as well as civil rights and national religious organizations.

When the Bremerton controversy was heating up in 2015, about a half-dozen student leaders and teachers had invited the Satanic Temple of Seattle to attend a game in what they described as an expression of free speech, saying if Kennedy was allowed to pray publicly, so should they.

On the larger constitutional questions, lawyers for the school district say personal faith is sullied when mixed with government.

"Church-state separation means that no one should ever have to choose between their religious freedom and being part of the team," said Americans United leader Laser. "Our country is on perilous ground if the Supreme Court considers overturning decades of established law that prevents government employees from pressuring students to pray in public schools. That’s what makes this case so critical — a loss would dangerously erode a core principle of our democracy."

As for Kennedy, he now lives in Florida, but promised to move back to Bremerton if allowed to coach there again. He says the lengthy court fights are about more than himself.

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"The kids said: coach, can't you just give in? And I realized if I did that, I would be going against everything I've ever taught these guys," he said. "You keep driving until the very end, until there's nothing left on the clock. I would have been the biggest hypocrite in the United States if I would have just said: oh yeah, you're right, this is too hard for me. What kind of example would I have set for my guys?"

The case is  Kennedy v. Bremerton School District (21-418). A ruling is expected by late June.