WASHINGTON — The Supreme Court’s conservative majority appeared Monday to be seeking a narrow way to rule in favor of a former high school football coach who lost his job for praying on the 50-yard line after his team’s games.
The task was complicated by factual disputes over the conduct of the coach, Joseph A. Kennedy, and the shifting justifications offered by the Bremerton, Washington, school district for disciplining him.
According to Paul D. Clement, one of Mr. Kennedy’s attorneys, his client had only sought to offer a brief, silent, and solitary prayer of thanks after his team’s games. Previous episodes, including prayers in the locker room, were irrelevant, Mr Clement said.
Bremerton School District attorney Richard B. Katskee said the school was entitled to require its employees to refrain from praying in public if students might feel coerced into participating.
It was challenged by some of the more conservative justices, who said the district initially argued it could prevent Mr. Kennedy from praying on a different ground: that the school would be seen as condoning religion in the authorizing. They suggested that the fear of coercion was an afterthought rationalization.
Judges from across the ideological spectrum peppered lawyers with hypothetical questions. Chief Justice John G. Roberts Jr. asked if Mr. Kennedy could have prayed aloud while standing with his arms outstretched. Judge Samuel A. Alito Jr. asked whether Mr Kennedy would have been disciplined for protesting the invasion of Ukraine, climate change or racial injustice.
The tenor of the questioning of the conservative members of the court was not surprising, since four of them had issued a statement challenging a preliminary ruling in favor of officials of the United States Court of Appeals for the Ninth Circuit, San Francisco.
“The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may warrant review in the future,” Judge Alito wrote at the time. He was joined by Justices Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
“Perhaps most troubling in the Ninth Circuit’s opinion,” Judge Alito added, “is language that can be understood to mean that a coach’s duty to serve as a good role model requires that the coach refrains from any manifestation of religious faith – even when the coach is obviously not on duty.
After further proceedings, a unanimous panel of three Ninth Circuit judges again ruled against Mr. Kennedyclaiming that school officials had the right to prohibit his public prayers to avoid a potential violation of the government’s First Amendment ban on establishing a religion.
The complete ninth circuit refused to rehear the case despite objections from 11 judges. The two sides were in deep disagreement over how to characterize Mr. Kennedy’s actions.
Judge Milan D. Smith Jr., the author of the panel’s opinion, wrote that “Kennedy has made it his mission to intertwine religion with football”.
“He led the team in prayer in the locker room before each game, and some players also began to join him for his post-game prayer, where his practice eventually evolved to include full-fledged religious talk and prayers with players from both teams after the game, conducted while the players were still on the pitch and while the fans remained in the stands,” Justice Smith wrote.
In response, Judge Diarmuid F. O’Scannlain said the panel’s opinion had things upside down. “It is axiomatic that teachers do not ‘give up’ their First Amendment protections ‘at the school gate,'” he wrote, quoting a 1969 Supreme Court decision. “Yet the notice in this case overturns those constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on time and within reach of ear of others, is subject to the full control of the government.”
On Monday, Judge Stephen G. Breyer, said Kennedy v. Bremerton School District, No. 21-418, presented unusual challenges. “It may be a matter of facts and not really of law,” he said.