The Freedom From Religion Foundation is gravely concerned that some U.S. Supreme Court justices will seek to use the case they heard today, about an ostentatiously praying coach, as an excuse to allow school staff to push religion onto students.
The lawsuit was brought by a former high school football coach whose contract was not renewed after he continued to host group prayers on the 50-yard line after games. The litigant, Joe Kennedy, claims God called him to become a coach, and that he promised God to “give you the glory after every game, win or lose.”
The justices asked expansive questions during the proceedings, indicating little agreement on the facts or how the court should handle the legal analysis in the case. However, NBC News, among other onlookers, has called it for Kennedy, noting “the conservative majority seemed prepared to rule that the coach was expressing his own private religious views and not speaking for the school district.”
Richard Katskee, the Americans United attorney arguing on behalf of the school district, said Kennedy insisted on giving audible prayers so students could join, and “created a zoo on the field.”
“This case is a poor vehicle for clearly delineating the rights of students and staff in public schools,” warns FFRF Senior Counsel Patrick Elliott. “Coaches cannot push their religion on students, and any potential ‘win’ for the coach here must come with restrictions on religious activity aimed at students.”
FFRF filed a compelling amicus brief before the Supreme Court that argued the case has become moot. After losing in the district court, Joe Kennedy sold his home in Washington and moved approximately 2,800 miles to Pensacola, Fla. FFRF explained in its brief that this move is problematic for Kennedy because a Florida resident cannot sue a Washington school district over its policies. FFRF’s brief cites ample case law establishing that when a plaintiff leaves the state under circumstances such as Kennedy’s, the case cannot continue.
Unfortunately, some justices seemed inclined to buy the narrative spun by former coach Kennedy. He had claimed that his prayers were “personal” and “private,” in spite of his clear intent to include students and other game attendees in the prayers.
However, Justice Stephen Breyer questioned Kennedy’s version of events. Breyer said, “One of my problems in this case is the parties seem to have different views of the facts,” continuing, “This may be a case about facts and not really much about law.”
Justice Elena Kagan asked about a theme highlighted in FFRF’s amicus brief. FFRF argued that the court must take into account the harm caused to students who are nonreligious when coaches instigate prayer. Kagan said that the court’s prayer cases demonstrate a concern regarding “coercion on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion.” She called this the “heart of what we care about.”
“He chose to publicize his prayer, and he got down on one knee on the 50-yard line,” said Justice Sonia Sotomayor.
Conservative justices on the court may be ready to undermine the court’s prior cases on religion in school. Justice Neil Gorsuch asked about the use of the endorsement test, which counsel for Kennedy said should be formally overruled along with the court’s longstanding Lemon test. These tests have been used by courts throughout the country for decades to ensure that governments do not advance religion or appear to endorse religion.
“Aside from the fact that this case shouldn’t have been in front of the court in the first place, because of the mootness issue, the case law has been clear — no public school employee can lead students in prayer. This case is just another instance of an ultraconservative Supreme Court looking to dismantle the wall of separation,” says FFRF Legal Director Rebecca Markert.
FFRF Co-President Annie Laurie Gaylor remarks, “Whatever this court decides, we know one thing: Our cherished founding principle of separation between state and church is in jeopardy. Religious extremists will take this as a signal to redouble their efforts to unravel more than 60 years of firm Supreme Court precedent protecting the rights of students to be free from religious ritual and indoctrination in our public schools.”
The 9th U.S. Circuit Court of Appeals had last year ruled in favor of Washington’s Bremerton School District, which did not renew Coach Kennedy’s contract after he defied reasonable requests to stop praying with students on the 50-yard line right after games. Kennedy had been singled out for praise by then-President Trump, including in a speech from the Oval Office on Religious Freedom Day, and has been a darling of Christian nationalist organizations and extremist members of Congress.
A decision in the case is expected to be announced by the end of June. If the court dismisses the case because it became moot, it could do so sooner.
