What Did the Justices Say About Football Prayer? The Oral Argument in Kennedy v. Bremerton School District

Posted in: Constitutional Law

This is a case about a public school football coach, Joseph Kennedy, who prayed at the end of football games. He was often surrounded by his students, students from the opposing team, or other people who attended after he publicized the prayer. The district court and the Ninth Circuit ruled in favor of the school district, which had suspended him after he refused to follow their prayer policy. The Supreme Court then granted cert. on this case, presumably to be more favorable toward Coach Kennedy’s religion.

Three parts of the First Amendment are involved in the litigation. Kennedy claims he has both a free exercise of religion and a free speech right to say these prayers on the fifty-yard line. Then the Establishment Clause of the First Amendment asks if establishment blocks Kennedy’s free exercise and free speech claims because he is a government employee. The school district argued that Kennedy’s case should be treated as a matter of punishment for government speech and therefore analyzed under cases on that subject, namely Garcetti and Pickering.

Those exercise, speech, and establishment issues often run into each other, as they did in this case. Did the Justices’ questions during oral argument inform us about how they look at this case? Is it free exercise, free speech, a hybrid of exercise and speech, establishment, or government or private exercise or speech? How will the Justices vote on this case?

Breyer: Just the Facts

Whenever I teach Justice Stephen Breyer’s cases in constitutional law classes, I recommend that students pay attention to the facts, because Breyer always cares about and focuses on the facts. In this case, perhaps looking for a simple result, he said the case might be about facts, and not about law, and asked the coach’s lawyer, Paul Clement, if he was right or wrong about “six facts”: 1) that Kennedy went to the fifty-yard line and prayed with the students; 2) that the school said Kennedy could pray but it must be separate from the students and non-demonstrative; 3) that Kennedy said he would not stop praying if the students were around him; 4) that Kennedy advertised his intention to pray at one game; 5) that the school offered Kennedy a chance to keep coaching and pray privately; and 6) that Kennedy did not answer the letter offering deal 5.

Breyer also said that if there are 54 different religions in the United States, is the neutral law not to let anyone lead prayer? The Court seemed to hold that in 1962, when it ruled in Engel v. Vitale that the public schools were not allowed to sponsor prayer for the students because doing so violated the Establishment Clause.

The Free Exercise Principle: Strict Scrutiny

Does Kennedy have a free exercise right to pray with his students? The Free Exercise Clause says everyone is supposed to obey neutral laws of general applicability. That’s what the Court held in Smith, which is still the leading free exercise case despite numerous religious attempts to overrule it. If a law discriminates against religion, or is not neutral and general, however, it gets strict scrutiny. Plaintiffs always want strict scrutiny, as that level of review is very difficult for the government to survive.

Kennedy says he has a free speech right to pray and the government cannot interfere with it. His lawyer, Paul Clement, kept emphasizing that this case is just about a coach’s right to pray, which is protected by the Free Exercise Clause. Why should the state be allowed to discriminate against religion?

In Smith, Justice Scalia stated that hybrid cases get strict scrutiny. Hybrid cases combine two constitutional rights. Justice Thomas asked whether this was a hybrid case of speech and exercise. If so, that could be an easy way to get strict scrutiny, and increase the odds that Kennedy would win.

Unless the Establishment Clause makes a difference.

Do We Still Have an Establishment Clause?

Justice Breyer was looking for an easy Establishment Clause answer based on the facts.

When I teach my students the Establishment Clause, I tell them to take their pick on what the clause means. The Court has interpreted it numerous times and ways. The Justices have been arguing about establishment for a long time, and their debate was present in the oral argument.

Here are your choices.

Do the Lemon factors rule Establishment Clause cases? Lemon says 1) the statute must have a secular purpose; 2) it can neither promote nor inhibit religion, and 3) there cannot be excessive government entanglement with religion.

Does the Establishment Clause forbid government endorsement of religion?

Does the Establishment Clause prohibit government coercion of religion?

Justice Gorsuch talked about overruling Lemon, while Justice Kavanaugh emphasized that the case had not been applied since forever years ago. Those two Justices already criticized Lemon in the recent case upholding a government Christian cross. Thomas does not like Lemon either. Justice Alito did not join their strong criticism of Lemon in that case, but Alito did say the Christian cross was secular—can you believe that?—so he might have been influenced by Lemon in one way or another.

Those Justices also do not like the endorsement test, and neither does the coach’s attorney. Justice O’Connor shrewdly added that test to Establishment Clause jurisprudence, arguing that government endorsement “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the primal community.” I think that is a beautiful quotation and a test worth using to keep students from exclusion and inclusion. There was much talk, however, that it too needs to disappear. Clement kept saying the school district had repeatedly used endorsement and never mentioned coercion, and that endorsement was a weak and meaningless test. One amicus brief also argued that endorsement should be abandoned.

So that leaves us with coercion. The school district’s lawyer, Americans United’s Richard Katskee, told the Court that if they abandoned endorsement and went with a coercion test instead, the case should be remanded so that the district court could conduct a coercion analysis based on the facts of the case. He very clearly told the Court that choosing coercion did not mean an automatic victory for Kennedy. Instead, he was confident that the reason the school district opposed Kennedy’s public prayers with students was that it coerced students into praying. #PraytoPlay, as some Twitter users have put it. If you wanted to play football, wouldn’t you have to pray to make sure your coach was seeing you and recognizing that you supported his religious values?

Sotomayor and Kagan for the School District?

On the facts of the case, we might have heard a lot about students being coerced into prayer, which is supposed to be unconstitutional today, as it was yesterday in Engel. Because the prayer was coercive, enforced religion, or was not secular. Justices Sotomayor and Kagan also focused on the coach’s job. Was he defending his constitutional right to private prayer, or was he a state actor endorsing or coercing religion?

Sotomayor asked lots of questions about teachers, including those who pray—silently or vocally—in their classroom before the bell rings, or after. Does the whole constitutional question depend on whether the bell has rung? Sotomayor had a broad view of teachers’ duties, which are not completely defined by the ringing of a bell. Kagan pointed out that the post-football game speech is government speech. She also emphasized that sixteen-year-olds are not adults. Sotomayor joined her on that point. Those two Justices seem to believe that the coach’s prayer policy coerces students who are not adults into practicing the coach’s religion. That would be an Establishment Clause violation.

Just Stick With Those Employment Cases?

Kagan in particular said Garcetti does not get to the “heart of . . . what our cases have long cared about . . . which is coercion on students and having students feel that they have to join religious activities that they do not wish to join, that their parents do not wish to join.” The Court might get to the heart of the case by ruling on establishment and free exercise.

But Katskee stayed strongly with Garcetti and Pickering. Do they give him and the district its most direct victory? Garcetti says that a public employee’s job-related speech is not protected by the First Amendment. Thus Kennedy could be limited under Garcetti. And he would lose the Pickering balancing test because of the government’s strong argument about separation of church and state.

Yes, separation of church and state. The case is supposed to be about that. Does separation require Kennedy to keep his religion private and away from his students?

And Roberts and Coney Barrett

A few interesting comments from the Chief Justice and Justice Barrett. Roberts asked Clement, what if the activity was “something more extensive, standing up on the 50-yard line, arms outstretched, engaging in audible prayer?” Justice Barrett asked what would happen if Coach said the Our Father with hands outstretched, causing “a lot of havoc in the stands.” Clement said the answer depended on whether the prayer was instructional or not.

It comes down again and again to the Coach’s role at the school. Katskee talks about “the power and authority of the coach, which is awesome.” Will he be awesome enough to get five Justices to say he has a free exercise right to pray? Five to say, in contrast, his employers can limit his work at the workplace? Or five to say it would violate establishment to allow a public coach to lead the team in coercive prayer.

I would go with establishment. Will they? Would you?

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