In Kennedy v. Bremerton School District, the U.S. Supreme Court will decide whether the First Amendment protects a high school football coach who, joined by students, prayed after football games.
According to Joseph Kennedy, his religious beliefs required him to pray at the end of each game. Students eventually joined him as he kneeled and prayed for about 30 seconds at the 50-yard line. When the school district found out the superintendent directed Kennedy not to pray with students. After widely publicizing his plan, Kennedy announced he would pray after a particular game even if students joined him. He was ultimately put on administrative leave and didn’t apply to coach the next fall.
The Ninth Circuit held that Kennedy had no First Amendment free speech right to pray because he was speaking as a “government employee” rather than as a “private citizen.” And even if he was speaking as a private citizen the Ninth Circuit held the district could prevent him from praying because of Establishment Clause concerns.
The Supreme Court has long held that for a public employee’s speech to be protected by the First Amendment the public employee must be speaking as a public employee and not as a private citizen.
The Ninth Circuit concluded Kennedy was speaking as a public employee when he prayed. Kennedy “was one of those especially respected persons chosen to teach on the field, in the locker room, and at the stadium. He was clothed with the mantle of one who imparts knowledge and wisdom. Like others in this position, expression was Kennedy’s stock in trade. Thus, his expression on the field—a location that he only had access to because of his employment—during a time when he was generally tasked with communicating with students, was speech as a government employee.”
In his petition asking the Court to hear his case Kennedy claims his praying was private because it “plainly [was] not undertaken as part of his job responsibilities as an assistant football coach.”
The Ninth Circuit also held that even if Kennedy’s speech was private, avoiding violating the Establishment Clause was an “adequate justification for treating Kennedy differently from other members of the general public.”
The Supreme Court has long opined that the Establishment Clause “mandates government neutrality between religion and religion, and between religion and nonreligion.” The Supreme Court has likewise made clear that Establishment Clause analysis “must include an examination of the circumstances surrounding” the action alleged to have violated the Clause.
Per the Ninth Circuit an objective observer would know “Kennedy actively sought support from the community in a manner that encouraged individuals to rush the field to join him and resulted in a conspicuous prayer circle that included students.” “Viewing this scene, an objective observer could reach no other conclusion than [the school district] endorsed Kennedy’s religious activity by not stopping the practice.”
Kennedy asserts that the Ninth Circuit’s Establishment Clause holding is wrong as well. “This Court has made clear time and again that the government does not run afoul of the Establishment Clause by tolerating private religious expression or activity.” “The Ninth Circuit seemed to think [disallowing Kennedy’s prayer] was compelled by this Court’s decision in Santa Fe Independent School District v. Doe (2000). But Santa Fe did not involve private prayer in view of students; it involved a school policy permitting school-edited and -approved prayers to be broadcast over the school’s public address system before games, as part of the school’s official pregame ceremonies. That could not be farther from the facts of this case, where everyone knew that the district wanted nothing to do with Kennedy’s prayer.”