The Supreme Court issued cert in last week Kennedy v. Bremerton School DistrictThis is the story of a high-school football coach who desires to be seen praying on the field during games. He was told by the school district not to pray on the field in front of students and then refused to renew his contract. According to the coach, the school district violated his First Amendment rights of free speech and exercise.
This is Coach Kennedy’s second trip to the Court. The Court denied his request for certification in 2019 at the preliminary injunction phase. Justice Alito, along with three others, suggested that Kennedy might not have been protected by the First Amendment. However, the facts aren’t clear. Maybe Kennedy was not allowed to pray while on duty, as it could have distracted him from his duties of supervising the team. However, the district now has the matter under control. According to the district, Kennedy was not allowed to pray in the sole reason that the Establishment Clause would prohibit.
Although Kennedy was ruled out by the Ninth Circuit, a panel that agreed with Kennedy was ruled against him. Evidently, the Court granted cert last Wednesday in an attempt to reverse. The cert petition does not make the mandatory argument regarding a circuit split. Instead, it spends its time saying that the panel’s opinion is both “egregiously incorrect” and “exceptionally significant.” It is hard to believe that any of the cert petitioners, which includes Justice Alito, who voted for cert three years ago would not have agreed to take the case. They likely anticipate being joined at least by one of their coworkers.
The most intriguing arguments are the ones made by the district that Kennedy could pray on public fields would be in violation of the Establishment Clause. To me, the notion that Kennedy’s prayer would constitute an official endorsement for religion seems absurd. An endorsement test tests whether an objective observer familiar with the situation would believe that government actions indicate support or favor for religion. Panel members concluded that an objective observer who is familiar with Kennedy’s religious history, as well as his attempts to garner publicity for the religious activities, could conclude that Kennedy’s behavior was supported by the school district.
This seems to be wrong. Anyone who knows the story will understand that Kennedy was a target of disapproval and the district did not wish for Kennedy to pray in public. A knowledgeable observer will understand that Kennedy was allowed to pray in public only due to the lawsuit it had brought against him.
Although the endorsement argument is weak—and that’s assuming the justices apply the endorsement test in the first place, which is never entirely clear ahead of time—the district does have another argument that strikes me as stronger. Some cases have shown that the Court suggested that the government might violate the Establishment Clause if it places public school students under psychological coercion. The Court has ruled that some students might feel pressured by peers to participate in a formal prayer during a graduation ceremony or before school football games. Even though Kennedy’s public prayer would not constitute an endorsement of any religion, the district might argue that it would create a pressure situation for team members to take part.
Kennedy would presumably respond that he is not praying in his capacity as a school employee, that he does not ask anyone to join him, that team members are free to leave the field without praying—in short, that no one is placing pressure on anyone. This is a little too formal. Even if Kennedy’s actions aren’t approved by the school district and no one is required to attend the prayer, a team member can feel the pressure to do so. Kennedy will also know the coaches decision and the decisions of the players. That could lead to high school kids feeling pressured to take part. The coach may decide to make the kids an outcast or put them on the bench. While I don’t think this argument will win, it strikes me as valid, given the Court’s precedents.
This case will be heard by the Court later in this term. Marc DeGirolami (my colleague) and I recorded an episode of the podcast to discuss this case. You can listen to it here.