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 changing reasons given by the school district in Bremerton, Washington, to discipline him.
According to Paul D. Clement, one of Mr. Kennedy’s lawyers, his client had sought to pray only a short, silent and lonely prayer of thanks after his team’s matches. Previous episodes, including prayers in the locker room, were not relevant, Mr. Clement.
Richard B. Katskee, an attorney for the Bremerton School District, said the school was entitled to require its staff to refrain from public prayer if students were likely to feel compelled to attend.
He was challenged by some of the more conservative judges, who said the district had initially argued that 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.
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 Samuel A. Alito Jr. asked if Mr. Kennedy would have been disciplined to protest the invasion of Ukraine, climate change or racial injustice.
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 Neil M. Gorsuch, Brett M. 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.”
“He led the team in prayer in the locker room before each game, and some players also began to join him in his post-match prayer, where his practice eventually evolved to include full-blown religious speeches and prayers with players from both teams after the match, performed while the players were still on the field and while fans remained in the stands, ”wrote referee Smith.
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.