The U.S. Supreme Court heard another church/state case on Monday in which the court's conservative super-majority appears to be moving toward a greater accommodation for religious expression in public schools. The case was brought by a public high school football coach who claims the right to kneel and pray on the 50-yard line at the conclusion of each game, joined by those of his players who want to participate.
School authorities in the town of Bremerton, Wash., told coach Joseph Kennedy to stop his midfield praying because it violated school policy. That policy is for school employees to neither encourage nor discourage religion. The school district and the lower courts said Kennedy's public praying amounted to a school endorsement of religion, and Kennedy was put on paid leave when he refused to stop.
Lawyer Paul Clement, representing the coach, told the justices Monday that Kennedy's 50-yard line prayers were "private speech" protected by the First Amendment guarantee of free speech and the free exercise of religion. The prayer, he contended, was much like an player crossing himself after making a touchdown.
Liberal justices and the court's precedents
Justice Sonia Sotomayor posed a series of hypothetical questions about where to draw the line on religious speech for school employees: When, if ever can teachers pray in class? Could the school "fire a coach who decides to put a Nazi swastika" on his arm, and claims it is part of his religion when he goes to the middle of the field to pray? she asked. "Could the school say no?"
Lawyer Clement said that might be one of the "rare cases where you question the sincerity of the religious belief." But "assuming it's a sincere religious belief, there's no basis to discriminate" against the prayer.
Justice Elena Kagan said that whatever label you put on Coach Kennedy's prayers is irrelevant. "Endorsement, coercion, I mean, you're requiring a lot of a school boards to try to figure out exactly which box in the establishment clause [doctrine] to put this in."
Justice Stephen Breyer, not so subtly, wondered why the court should be deciding this case at all at this point in light of the disputed facts in the case. "My problem with this case." he said, is that the record would seem to indicate the case "may be about facts and not really much about law."
Breyer, Kagan, and Sotomayor are from the court's liberal wing and have no desire to overturn the court's precedents marking a clear separation between church and state. The court's conservatives have a very different view. They want to focus instead on accommodating religion in public schools and other public institutions.
Conservative justices seemed sympathetic to prayer
But, in this case, even conservative Justice Brett Kavanaugh—an avid sports fan, and coach for his daughters' teams—understood how Coach Kennedy's behavior might be perceived by some parents. "Every player is trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting line up, playing time, recommendations for colleges, etc." he observed.
And yet Kavanaugh, and fellow conservative Justice Neil Gorsuch repeatedly suggested that, in their view, it is now time for the court to "bury" some of its older precedents for good. Most prominent is a 1971 case which barred the use of taxpayer money to pay for parochial school teacher salaries and books because such expenditures would unconstitutionally entangle the government with religion. In legal shorthand, the case is seen as a ban on state endorsement of religion.
Lawyer Clement, representing the coach, stressed that while the court has largely abandoned the endorsement test, school districts all over the country still rely on it. "It's a stubborn fruit," he said. "I don't think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half."
Lawyer Richard Katskee, representing the school board, replied that Kennedy's actions had not been benign. The coach, he said, conducted a media blitz, permitted state legislators to join him on the field, and put students—some just 14 years old—in jeopardy. "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."
If the evidence bears that out, "what then should we do if we thought coercion were the appropriate test, but hadn't been applied by the school district or by the court below?" Gorsuch asked.
Katskee said the court should remand the case back to the lower court for fact finding on the question of coercion.
"There is no evidence of coercion in this record," an alarmed Clement replied. He implored the court to settle the matter, emphasizing that Coach Kennedy has already "waited six years to get his job back."
A decision in the case is expected by summer.
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