The Supreme Court leans to the coach in the case of school prayer

WASHINGTON – The Conservatives’ Conservative majority appeared on Monday looking for a narrow way to decide in favor of a former high school football coach who lost his job to pray at the 50-yard line after his team’s games.

The task was complicated by factual disputes about the coach, Joseph A. Kennedy’s behavior, and the various reasons given by the school district in Bremerton, Washington, for disciplining him.

The case pits the right of state employees to freedom of expression and the free exercise of their faith against the Constitution’s ban on government approval of religion and the Supreme Court’s precedent, which prohibits forcing students to participate in religious activities.

In his eight years as an assistant coach at Bremerton High School, Mr. Kennedy routinely prays after the fights, where students often joined him. He also led and participated in prayers in the locker room, a practice that neither he nor his lawyers now defend.

In 2015, after an opposing coach told the principal that he thought it was “pretty cool” that Mr. Kennedy was allowed to pray on the field, the school board instructed Mr. Kennedy not to ask if it disrupted his duties or involved students. .

The two sides disagree on whether Mr. Kennedy complied.

An official from the school did not recommend renewing the coach’s contract for the 2016 season, and Mr. Kennedy did not apply for the position again.

According to Paul D. Clement, one of Mr. Kennedy’s lawyers, the only thing that was on the agenda now was whether his client could pray a short, silent and lonely prayer of thanks after his team’s matches. Previous episodes were not relevant, Mr. Clement.

“Coach Kennedy was fired for that midfield prayer, not for any previous practice,” said Mr. Clement, adding that the actions of the school district violated Mr. Kennedy’s First Amendment Rights.

Richard B. Katskee, an attorney for the Bremerton School District, said it was justified in requiring its staff to refrain from public prayer if students were likely to feel compelled to attend.

“He insisted on audible prayers at the 50-yard line of students,” Mr. Katskee about Mr. Kennedy. “He announced in the press that these prayers are how he helps these children become better people.”

Sir. Katskee was challenged by some of the more conservative judges, who said the district had initially argued it could stop Mr. Kennedy from praying for another reason: that the school would be perceived as supporting religion by allowing it. They suggested that the fear of coercion was a rationalization afterwards.

“One of the difficulties in this case is getting to grips with the district’s reasoning,” Judge Neil M. Gorsuch said.

Judges across the ideological spectrum peppered the lawyers with hypothetical questions. Chief Justice John G. Roberts Jr. asked if Mr. Kennedy could have prayed aloud while standing with outstretched arms. Judge Amy Coney Barrett went a little further: “Let’s say he says ‘Our Father’ with outstretched arms and it’s starting to cause a lot of chaos in the stands.”

Judge Samuel A. Alito Jr. asked if Mr. Kennedy would have been disciplined to protest the invasion of Ukraine, climate change or racial injustice. Judge Sonia Sotomayor wondered if a public high school could discipline “a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray.”

Referee Brett M. Kavanaugh asked if a school could “fire the coach for the sign of the cross just before the match.”

The lawyers responded by suggesting lines that the judges could draw. Mr. Clement said it was important whether a coach’s speech had “an instructional component” and whether a religious exercise was fleeting.

Sir. Katskee said it was important whether the coach “makes himself the center of attention in the middle of the field.”

Justice Kavanaugh, himself a basketball coach, said the possibility of coercion posed an authentic problem.

“What about the player who thinks, ‘If I do not participate in this, I will not start next week?’ he asked, adding that “all players are trying to get on the good side of the coach.”

Judge Kavanaugh said the solution was elusive. “I do not know how to deal with it, honestly,” he said.

Mr. Clement said the school district had not invoked this argument. “This is not a case where the government took action because of coercive issues,” he said. “The record is crystal clear that they were concerned about approval.”

He added that Mr. Under no circumstances did Kennedy’s conduct constitute coercion. “When the coach is alone in midfield and gives a 15-second fleeting prayer,” he said, “if you call it coercion, you are making an important category mistake.”

Both Chief Justice Roberts and Judge Alito indicated that they wished the facts of the case to be more straightforward.

“What if all that was off the table?” Chief Justice Roberts asked Mr. Katskee, referring to the entangled story of Mr. Kennedy’s fight with the school district. “It’s simply the coach who goes out to midfield, kneels – takes a knee – and that’s it?”

Justice Alito also presented a simplified version of the controversy. “Forget about all the complicated facts of this case,” he told Mr Katskee.

Sir. Katskee said the hypothetical questions were a closer question than what was actually asked in court.

The content of the hearing by the conservative members of the court was not surprising, as four of them had issued a statement questioning a preliminary ruling in favor of U.S. Court of Appeals officials for the Ninth Circuit in San Francisco.

“Ninth Circuit’s understanding of elementary school teachers’ freedom of speech is worrying and may justify a revision in the future,” Judge Alito wrote at the time. He was joined by Judges Gorsuch, Kavanaugh and Clarence Thomas.

“Perhaps most worrying about the meaning of the Ninth Circuit,” Judge Alito added, “is language that can be understood as meaning that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious believe – even when the coach is clearly not on guard. “

After further cases, a unanimous three panel of judges from the Ninth Circuit again sentenced Mr. Kennedy and said school officials were entitled to ban his public prayers to avoid a potential violation of the First Amendment’s ban on state establishment of religion.

The full ninth district refused to hear the case again due to objections from 11 judges. The two sides strongly disagreed on how to characterize Mr. Kennedy’s actions.

Judge Milan D. Smith Jr., the author of the panel’s statement, wrote that “Kennedy made it his mission to merge religion with football.”

In response, Judge Diarmuid F. O’Scannlain said the panel’s statement had things backwards. “It is axiomatic that teachers do not ‘throw away’ their first protection of change ‘at the school gate’,” he wrote, quoting a 1969 Supreme Court ruling. speech by a primary school teacher or coach while on the clock and within earshot of others is subject to plenary control by the government. “

On Monday, Judge Stephen G. Breyer said the case of Kennedy v. Bremerton School District, Nos. 21-418, presents unusual challenges. “This may be a matter of facts and not really much of the law,” he said.

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