Supreme Court further erodes separation between church and state in case of praying football coach

By Ariane de Vogue, Tierney Sneed and Devan Cole, CNN

The Supreme Court said Monday that a Washington state school district violated the First Amendment rights of a high school football coach when he lost his job after praying at the 50-yard line after games.

The opinion was 6-3 along conservative-liberal ideological lines.

“The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” Justice Neil Gorsuch wrote in the majority opinion.

The court said coach Joe Kennedy’s prayers amounted to private speech, protected by the First Amendment, and could not be restricted by the school district.

The decision lowers the bar between church and state in an opinion that will allow more religious expression in public spaces. The court clarified that a government entity does not necessarily violate the Establishment Clause by permitting religious expression in public.

“We are aware of no historically sound understanding of the Establishment Clause that begins to ‘(make) it necessary for government to be hostile to religion’ in this way,” Gorsuch wrote.

The Establishment Clause of the Constitution says Congress can “make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Kennedy praised the court’s ruling in a statement on Monday, saying, “All I’ve ever wanted was to be back on the field with my guys.”

“I thank God for answering our prayers and sustaining my family through this long battle,” he said.

The decision continues a trend of a right-leaning court that has sided repeatedly in recent years with religious conservatives. Last week, the court said that Maine could not exclude religious schools from tuition assistance programs in a 6-3 decision divided along ideological lines.

“Today’s ruling is the court’s second major expansion of constitutional protections for religion in six days,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“Last week, the court made it harder for states to decline to fund religious education. Today, the court is making it harder for secular schools to keep religion out of extracurricular activities, like high school football. In the name of defending religious exercise, the court’s conservative majority has neutered the First Amendment’s other reference to religion — its prohibition of state sanctioning of it.”

Justice Sonia Sotomayor, writing for the three liberal dissenters, said the court “weakens” the Establishment Clause’s “backstop” protecting religious freedom.

“It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all,” Sotomayor wrote.

‘Audible prayers’ on the field

Kennedy began his prayer ritual soon after he was hired in 2008, but the school district grew concerned when Kennedy’s short, quiet prayers grew in 2015 as players began joining him on the field all while the crowd was still in the stands.

The school district said it never restricted him from offering silent, private prayers, and offered him an alternate place to pray off the football field after games. Kennedy refused the accommodations and was ultimately placed on paid administrative leave and suspended from the program. After the season, he was given a poor performance evaluation.

He did not seek a new contract, but instead filed suit, arguing that the school district had violated his rights under the First Amendment. Kennedy lost his case at the district court level and before the 9th US Circuit Court of Appeals, which held that his prayer amounted to governmental speech that is not protected by the First Amendment.

Before oral arguments in April, Kennedy told CNN in an interview that “every American should be able to have faith in public and not to be worried about being fired over it.” Kennedy, who is Christian, said his prayers were meant to fulfill a covenant he had made to praise God after every game, “win or lose.”

Lawyers for the school district had argued to the court that Kennedy’s prayer practice was not private or personal prayer, but rather a ritual undertaken in full view of students that the school district was justified in restricting.

“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” Richard B. Katskee, a lawyer for Americans United for Separation of Church and State, told the justices.

But, Katskee said, that is not what Kennedy had engaged in. Instead, Katskee argued, Kennedy “insisted on audible prayers at the 50-yard line with students … (and) announced in the press that those prayers are how he helps these kids be better people.”

Katskee argued that even if the court viewed Kennedy’s speech as private, the school district had adequate justification to restrict it because officials are permitted to “prevent disruption of and maintain control over school events.” Katskee gave the example that a Satanist group had come forward to demand the same access to the football field.

Notre Dame Law School Professor Richard W. Garnett, who wrote a friend-of-the-court brief supporting Kennedy, said on Monday that the high court’s ruling will “provide much needed clarity and consistency” to an area of the law that has been “notoriously confused and inconsistent.”

“The Establishment Clause is concerned with the entanglement of governmental and religious authority,” he said, adding: “It does not require the censorship of private religious expression.”

Justices differ on whether players were coerced

In his majority opinion, Gorsuch differentiated the case from past cases, pushing back on the notion that the opinion would lead to more school prayer.

He said the prayers at issue “were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate.”

Gorsuch added that students “were not required or expected to participate,” rejecting concerns of some of the parents that students could feel “coerced.”

And he limited the discussion to three prayers instead of a broader pattern of the coach’s conduct.

“Respect for religious expressions is indispensable to life in a free and diverse Republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,” Gorsuch wrote.

Sotomayor’s dissent, which included photographs of the prayers in question, suggested that she thought the majority was not describing accurately the factual circumstances of the case.

“As the majority tells it, Kennedy, a coach for the District’s football program, ‘lost his job’ for ‘(praying) quietly while his students were otherwise occupied,'” she wrote. “The record before us, however, tells a different story.”

Her dissent also pointedly noted that the school district tried to accommodate the coach by offering him a place to pray, off the field. “Again, the District emphasized that it was happy to accommodate Kennedy’s desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement,” she said.

She said that it was “unprecedented” for the court to hold that Kennedy’s conduct, “taken as a whole, did not raise cognizable” concerns of coercion.

Sotomayor stressed that students could have felt coerced to join in the prayer and pointed to the fact that the court in the past has “recognized that students face immense social pressure.”

She said that they look up to their teachers and coaches as role models and “seek their approval” and that players might try to gain a coach’s approval to secure a stronger letter of recommendation for college recruiting or more playing time on the field. “The record before the Court bears this out,” she wrote.

Already, such concerns have been raised by the National Education Association, the nation’s leading labor union for teachers, which said on Monday that the majority opinion would open the door to coercive prayer in schools.

“The Constitution should protect public school students from being coerced into religious activity,” NEA president Becky Pringle said in a statement. “The court’s decision here does the opposite: it ignores the real-life pressure and coercion that students will feel when school officials stage public religious observances in class or at school events.”

This story has been updated with additional details Monday.

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