A high school football coach was fired for praying aloud at the 50-yard line: Did the public school violate his First Amendment rights, or did the coach violate the so-called Establishment Clause?
That’s what was at issue before the Supreme Court on Monday.
Bremerton High School, a public school near Seattle, Washington, hired Joseph Kennedy to coach football in 2008. Over the years, Kennedy prayed on bended knee, out loud, on the field, sometimes with his players. Kennedy has always claimed that the players’ involvement was voluntary. But a coach from an opposing team informed school administrators of the prayers. Bremerton High then reprimanded and ultimately fired Kennedy.
The school argues that any prayer must be led by students, not led by the coach, as he was a public school employee and his prayers violated the Establishment Clause of the First Amendment, which prohibits government entities from endorsing religion. Kennedy’s attorney Paul Clement argued that his client’s prayers were private, not government-sanctioned speech, and that the school violated Kennedy’s free speech rights.
The justices asked multiple hypothetical questions to discern where government speech begins and a person’s free speech rights end. Justice Samuel Alito asked whether a school employee could be punished for carrying a Ukrainian flag on school property. Justice Brett Kavanaugh asked whether the school could “fire someone making the sign of the cross before a game?”
Justice Elena Kagan seemed concerned that the prayers were coercive of other students.
The case has drawn attention from free speech enthusiasts and sports professionals alike. Minnesota Vikings quarterback Kirk Cousins, Chicago Bears quarterback Nick Foles, and former NFL quarterback Drew Stanton filed an amicus brief in support of Kennedy. They mentioned Colin Kaepernick kneeling during the national anthem to protest racial injustice and Tim Tebow’s on-field prayers on one knee as well.
“That practice, like Kennedy’s prayers, is controversial — courageous to some and offensive to others,” they argued. “But if Joe Kennedy had taken a knee to protest racial injustice, the district almost certainly would not have argued that his speech was somehow the state’s. Rather, there would have been no question that it was protected private speech.”
Justice Clarence Thomas asked the attorney representing the school about this exact argument. “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?” The attorney agreed it would be.
The conservative justices seemed to lean in favor of Kennedy’s rights, while Justices Stephen Breyer and Kagan seemed to believe the school had the right to fire Kennedy. A ruling is expected in June.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota.
