Supreme Court Finds Coach’s Post Game Prayer a Personal Matter

At the request of the school district, Kennedy stopped incorporating religious references or prayer into postgame talks to the team, and almost dropped the postgame prayer. But according to Justice Neil Gorsuch’s majority opinion, one day on the way home after a game, Kennedy felt he had betrayed God by not offering his prayer “so he turned his car around” and returned to the now-empty field and prayed at midfield.

The district suspended Kennedy after the 2015 season, citing his failure to “follow district policy” regarding religious expression. His federal lawsuit contending that the district’s actions violated his First Amendment rights was dismissed on summary judgment by the district court, affirmed by the Ninth Circuit.

The Ninth Circuit found that Kennedy’s speech qualified as government rather than private speech because “his expression on the 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. The coach’s activities were enough to lead an “objective observer” to conclude that the school district endorsed Kennedy’s religious activity by permitting the practice, which the court said would violate the Establishment Clause, under Lemon v Kurtzman, 403 US 602 (1971), and its progeny.

The Supreme Court reversed, focusing on the free exercise issues. The Court stated that where a policy inhibits free exercise rights, the government (here the school district) must show that the policy is “neutral” or “generally applicable.” If not, the government must show that the policy is narrowly tailored to achieve a compelling state interest. The Court said that the Bremerton policy was not neutral at all, since it did not restrict any other postgame activities by coaches such as visiting with friends or taking personal phone calls.

As to Kennedy’s free speech rights, the court applied the test in Garcetti v. Seballos (2006) which asks whether the employee’s speech is pursuant to his official duties, in which case it is not shielded from employer control. The court stated that Kennedy’s post game prayer was outside the scope of his duties as a coach and did not convey an official message.

Either way the school district’s policy was subject to strict scrutiny. The district argued that the policy was narrowly tailored to a compelling governmental interest: its suspension of Kennedy was necessary to avoid violation of the Establishment Clause under Lemon. As the lower courts had found, an objective observer could have concluded the district endorsed Kennedy’s prayers by allowing them to take place, an establishment of religion.

The Supreme Court rejected the argument by rejecting its premise: “[T]his court long ago abandoned Lemon” and the endorsement test. Justice Gorsuch explained that the Court had already determined that the Establishment Clause must be interpreted by “reference to historical practices and understandings” of the framers of the Constitution, and by that measure “Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine” separating protected private expression from government coercion.

Justice Gorsuch added that students were not required or expected to participate: “Learning how to tolerate diverse expressive activities has always been part of learning how to live in a pluralistic society.”

Justice Sonia Sotomayor’s dissent, joined by Justices Elena Kagan and Stephen Breyer, offered a different factual account of what occurred. It described large gatherings that included local politicians, broadcast media, and spectators who hopped the fence to join, causing disruption and requiring the district to hire extra security. The opinion included three photos that showed large gatherings on the field. 

The dissent argued that the prayers were coercive, noting that several parents had advised the school district that their children had participated in the prayers “solely to avoid separating themselves from the rest of the team.” The opinion noted that students depend on teachers and coaches for “tangible benefits” that range from playing time to college recommendations.

The dissent called out the majority’s overruling of Lemon v. Kurtzman and “decades of subsequent precedents.”

Public schools and other public sector employers attempting to review employee religious expression must now look more closely at whether the conduct at issue could be understood as non-official activity even when undertaken while “on duty”, and worry less that permitting it would be deemed an employer endorsement of religion.

The Kennedy decision is another signal that a new and confident Supreme Court majority intends to remake the jurisprudence under the Constitution’s religion clauses, with stare decisis principles being a secondary consideration. Readers focused on the legitimacy of the Court in fractious times might be concerned by the justices’ inability to find agreement on the relevant facts.