The U.S Supreme Court has granted certiorari on a case we reported on in 2019, Kennedy v. Bremerton School District (Case No. 21-418), regarding a football coach that was placed on administrative leave after he prayed at the center of a field after a football game he coached. He was then formally discharged from employment when he refused the school district’s directive to only pray “where he could not be seen.”
Coach Joe Kennedy of a Washington state high school began the tradition of kneeling for a short prayer at the end of every game. Members of both teams would join and this would also promote a good spirit of sportsmanship among the young athletes. His local school district later suspended and fired him for violation of district policy. The reasoning the school district used was:
“‘(T)hat petitioner, in praying on the field after the game, neglected his responsibility to supervise what his players were doing at that time and, second, that petitioner’s conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while “on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.”’
A few years ago the Supreme Court did not grant certiorari, but left the door open for the matter to be accepted at a later time and now certiorari has been granted. This case presents a very good opportunity for the Supreme Court to reform its controversial Establishment Clause jurisprudence from the middle to late twentieth century that greatly scaled back recognizing religious prayer life in the public square, most specifically connected to the educational context. The decisions of the Supreme Court in these cases greatly distorted the meaning of the Establishment Clause. Some major cases in the educational context include Lee v. Weisman____ U.S.____, 112 S.Ct. 2649 (1992); School Dist. of Abington Township v. Shempp, 374 U.S. 203 (1963) and Engel v. Vitale, 370 U.S. 421 (1962).
Lee v. Weisman would be a viable candidate to be revisited and is one of the more modern cases that gravely misinterpreted the Establishment Clause. There, nonsectarian prayer at a public school graduation was found to have violated the Establishment Clause because of its alleged coercive effect on students and attendees and the appearance of a communicated government endorsement of religion from the public school. On the merits this decision does not have a firm anchor in the text of the Constitution nor tradition of the nation since the founding. A prayer at a public school event that is nonsectarian in nature is not placing any demands on students or attendees to be participants in a structured religious belief nor punishing those that choose to not embrace a religious lifestyle. It is merely a non-denominational religious expression not requiring faithful adherence to tenants of faith, but rather an expressive statement recognizing a faith belief and gratitude for those that choose to believe it. The Establishment Clause was intended to forbid a state run church from dominating the nation such as the Church of England not to prohibit non-denominational religious expression in the public sphere.
The present matter at issue does have differences with Lee as the facts in Kennedy concerned a coach praying on his own accord after a football game was completed, not during an active gathering such as a graduation. The issue of psycho-coercion, however, is a common thread through these cases.The Supreme Court should consider scaling down deference to this view of the Establishment Clause as it presents a grave barrier to the interpretation of the Establishment Clause consistent with the framer’s intent.
The players and coaches on either team individually made the decision to join the prayer after the school sponsored sporting event. There is also no evidence in the factual record to indicate that players who did not participate or reluctantly participated were unduly prejudiced.
It may be helpful to consider a sequence where a teacher chooses to offer a lunch prayer grace in the cafeteria and students interested in offering prayers sought to join him or her. The teacher is in a school building surrounded by several students in a cafeteria, thus the School District must consider just how far its policy covers. Lunch and post-game activities are not active performances of job responsibilities, thus there is a question as to just how far the district policy and the understanding of psycho-coercion extends.
We anticipate that the coach will be successful and the School District will be forced to reconsider its policy. We will continue to follow this matter very closely.