On Monday, the Supreme Court of the United States heard oral arguments in the case of Joseph Kennedy, a junior varsity head coach from Washington state’s Bremerton School District who was fired in 2015 after praying at the 50-yard line after games.
The justices will reportedly be looking at two separate issues in the case before issuing their ruling. First, whether the coach praying by himself within view of others including students amounted to unprotected “government speech,” and second, if it is not, in fact, unprotected “government speech,” would it still present issues under the First Amendment, specifically the Establishment Clause?
Justice Elena Kagan asked Paul Clement, the attorney representing Kennedy, whether it would be inappropriate for a teacher to recite a prayer in the classroom. He responded that it would, if the teacher was doing so audibly in the presence of students, or if it was taking place during the instructional period, but not if it was private and silent. The question came as the result of a discussion about whether the prayers had come during the time when Kennedy was carrying out his responsibilities as a coach.
Justice Sonia Sotomayor posed a more shocking question, wondering if a coach praying on the field while wearing Nazi symbolism would also be appropriate. Clement made clear that he wasn’t aware of the existence of such a religion, though admitted that it could acceptably be banned as it was not a direct expression of any faithful activity, and therefore wouldn’t technically qualify as religious censorship.
The more conservative-leaning justices, Brett Kavanaugh and Samuel Alito wondered if the prayer was like any other protected expressions of speech allowed on school grounds. For instance, Alito asked if someone would be punished for having a Ukrainian flag, and Kavanaugh wondered if the school would be able to “fire someone making the sign of the cross before a game?”
Justice Clarence Thomas used a topical hypothetical to put the situation into perspective.
“If the coach, instead of taking a knee for prayer, took a knee during the national anthem because of moral opposition to racism, how would your school district respond? Would that be government speech?” he asked Richard Katskee, the attorney representing the school district.
Katskee concurred that it would be “government” speech given the time and place, as well as how any reasonable person may interpret the actions.
Thomas then referred back to the case at hand, asking how it’s possible for the action to be considered “government” speech if the school had already voiced objections to the action, making it clear they don’t side with it and thus taking away any notion of even tacit endorsement.
Kennedy claims that the termination was a violation of his First Amendment rights to freedom of religion and freedom of speech, while the school district maintains claims that the Constitution is actually the reason Kennedy’s prayers are an issue. They say that his praying was coercive to students who participated in the prayer with him.
“Mr. Kennedy’s actions pressured them to pray, and also divided the coaching staff, sparked vitriol against school officials, and led to the field being stormed and students getting knocked down. When Mr. Kennedy repeatedly ignored sincere efforts to accommodate personal prayers, what was the district to do?” asked Katskee, who is representing the school district.
Meanwhile, Kennedy’s lawyer is confident that the firing was a constitutional violation because the school only fired his client as a result of the actions being religious in nature.
Kennedy says that his tradition of praying after the games was something that he started to do by himself, but over time students began joining him. Eventually, he began to give motivational speeches, according to court documents, that contained religious themes and connotations. The school district warned Kennedy to stop after an opposing team’s coach brought it to their attention, but he wouldn’t be deterred. While he did temporarily pause his actions, he eventually resumed after notifying the school.
The situation gathered quite a bit of media attention, and this caused many people to attend games as well as the post-game prayer. The school district claims that the number of people walking onto the field following games became a safety concern. They offered to allow Kennedy to pray in a separate location or to resume his 50-yard line prayers once all other people had left, but he refused. Two games later, he was placed on leave from the school.
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