The U.S. Supreme Court on Monday sided with a high school football coach who claimed the right to pray on the 50-yard line after each game, joined by those players who wanted to participate. The 6-to-3 decision was the latest example of the court's conservative supermajority requiring more accommodation for religion in public schools and less separation between church and state.
The decision was based largely on the lower courts' finding that that the school told the coach to stop his midfield praying because it would be perceived as a school endorsement of religion.
Writing for the court majority, Justice Neil Gorsuch said that the school relied exclusively and improperly on concerns that the prayers would be viewed as a religious endorsement by the school. Without evidence that students had been coerced, the majority said, barring coach Joseph Kennedy from praying on the 50-yard line at the end of each game was a form of hostility to religion, in violation of the Constitution.
"Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims," Gorsuch wrote.
The three dissenters said that account of the facts blinkered reality. Writing for the three liberals, Justice Sonia Sotomayor said that Kennedy's prayer was neither private speech, nor benign. She pointed to the fact that the coach conducted a media blitz leading ultimately to the field being stormed and students being knocked down. And she said "schools face a higher risk of unconstitutionally 'coerc[ing] ... support or participat[ion] in religion or its exercise' than other government entities."
"This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state," Sotomayor wrote. "Today's decision elevates the rights of a school coach who voluntarily accepted public employment, over the rights of students required to attend public schools and who may feel obligated to join in prayer." In doing so, Sotomayor claims, the court gives "short shrift" to the constitutions ban on state entanglement with religion.
University of Virginia law professor Douglas Laycock usually files briefs siding with religion advocates. But not in this case. He called Monday's ruling, "fundamentally dishonest" and pointed to the third sentence of the Gorsuch opinion, which characterizes coach Kennedy's conduct as "quiet isolated prayers," stating, "They weren't quiet and they weren't isolated. They were leading the students in prayer, and to say that's okay undermines all the school prayer cases." By that he means Supreme Court decisions barring teacher- or student-led prayers in public school classrooms, and ceremonies like graduation.
Villanova law school's Michael Moreland conceded that the facts in this case could cut either way, but he still said that the court got it right. He said that some of the court's school prayer precedents, but not all, may now fall by the wayside. Among those on firmer ground now he said are, "historical practices that have gone on for a long time and in a lot of parts of the country. That includes coaches leading prayers and it might include things like moments of silence at graduations."
Background to the case
The case began in 2015 when school administrators in Bremerton, Wash., instructed Kennedy to stop his praying on the field at the end of the game. But Kennedy, a former Marine, refused. "I fought and defended the Constitution and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody, that's just not America," he said.
By the time of the homecoming game, Kennedy's media appearances had made him something of a celebrity, and things in Bremerton had gotten so tense that despite extra police at the game, the mainly pro-prayer crowd mobbed the field, knocking over some of the band members and cheerleaders. Kennedy, surrounded by TV cameras and some players, knelt to pray on the field while a state legislator placed his hand on Kennedy's shoulder in support. That wasn't all. There were Satan worshippers there, too, from Seattle. It was, recalled the school principal, "a zoo."
The school continued to tell Kennedy and his lawyers that it wanted to accommodate his wish to pray, but it wanted a less public demonstration of faith because it said the post game prayers would be seen as the school endorsing religion.
Near the end of the season, after Kennedy repeatedly refused to stop his public praying, the superintendent placed Kennedy on paid administrative leave. Kennedy did not apply for a new contract the following year. Instead, he sued the school district, contending it had violated his right to free speech and the free exercise of religion.
What the opinion means
Monday's decision is the latest in a long line of recent decisions siding with religious interests, and against more secular ones. Among them: the court has ruled that the constitution bars federal anti-discrimination laws, including those requiring accommodations for sick and disabled employees, from applying to lay teachers at religious schools; it ruled that a Catholic social services agency could refuse to abide by its contract with Philadelphia, a contract which required it to work with same-sex couples applying to take in foster children; it ruled that closely held for-profit corporations could refuse, on religious grounds, to abide by a federal law requiring insurance to cover contraception for their employees; it ruled that city councils and other public boards are free to open their meetings with explicitly Christian prayers. It ruled that a 4o-foot cross honoring soldiers who died in World War I could remain on state property at a busy intersection in suburban Maryland.
This is far from a complete list, but it is an indication of more such decisions to come in the future. The current court is the most pro-religion of any court in nearly 70 years, according to statistics compiled for an upcoming article in The Supreme Court Review, written by law professors Lee Epstein of Washington University, St. Louis, and Eric Posner of the University of Chicago. While the number of pro-religion outcomes edged up to 58% overall when William Rehnquist was chief justice (1986-2005), the rate has skyrocketed to over 86% in the years since then with John Roberts as chief justice and the court's composition growing steadily more conservative.