Prayer And Pluralism: SCOTUS Victory For The Coach Who Took A Knee

Coach Joe Kennedy didn’t intend to make a spectacle of himself or set an example. When he began a tradition in 2008 of offering a quiet, midfield prayer after Bremerton High School football games, he surely never thought that he’d be standing on the steps of the Supreme Court in June 2022 after a seven-year battle to regain his job.

The Court has now handed Kennedy a victory, holding that the Bremerton School District in Washington state violated the First Amendment’s Free Exercise and Free Speech Clauses by firing Kennedy for his personal, quiet post-game prayers.

The ruling is significant not just because it reinforces the First Amendment protections guaranteed to government employees, but because it strengthens our nation’s increasingly shaky commitment to pluralism – having diverse religious views or no religious view at all and coexisting in society.

In writing for the six-justice majority, Justice Neil Gorsuch opened: “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

The factual record in Kennedy’s case, however, was devoid of any evidence of respect or tolerance. To the contrary, the school district seemed to be under the mistaken impression that it had to scrub any private religious expression from the public square (here, school property).

From the outset, the Bremerton school district had argued that allowing any “overt actions” on Kennedy’s part that might appear to a “reasonable observer to endorse…prayer…while [Kennedy was] on duty as a District-paid coach” would violate the First Amendment’s Establishment Clause, making it appear as though his religious exercise was school-sanctioned and that the government was somehow “establishing religion.” In multiple letters that were exchanged with Kennedy prior to his lawsuit, the school district mentioned “endorsement of religion” eight times, but  nothing was said about any other concerns that might have prompted his termination.

However, the Supreme Court has clarified that a school does not endorse private, religious speech simply because it fails to censor it. In Kennedy’s case, Gorsuch noted that, by targeting his religious expression and nothing else, the school district’s policy on Kennedy’s prayers could hardly be considered neutral or “generally applicable.” As a result, the policy required the Supreme Court’s highest standard of review: strict scrutiny. Under strict scrutiny review, the School District had to show that its actions were justified by a compelling state interest, narrowly tailored to meet that interest.

It could not.

The Court also refused to buy the school district’s argument that the Establishment Clause required a government entity to single out private religious speech for special disfavor. The government’s phantom constitutional violation didn’t justify an actual violation of Kennedy’s individual’s First Amendment rights. It believed – wrongly – that it had to suppress religious observances when a similar secular expression (i.e., taking a knee to protest police violence) was perfectly acceptable.

Bremerton School District had focused on suppressing religious expression, rather than on Free Exercise and pluralism, and Justice Gorsuch hinted as much. 

[L]earning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’…This Court has long recognized as well that ‘secondary school students are mature enough … to understand that a school does not endorse,’ let alone coerce them to participate in, ‘speech that it merely permits on a nondiscriminatory basis.’ … Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But ‘[o]ffense … does not equate to coercion.’

Later in the opinion, Gorsuch again extolled the virtues of pluralism and stressed its relevance to Kennedy’s case:

In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity…It is a rule…that would undermine a long constitutional tradition under which learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.’…We are aware of no historically sound understanding of the Establishment Clause that begins to ‘mak[e] it necessary for government to be hostile to religion’ in this way.

The CEO of Americans United for Separation of Church and State, Rachel Laser, was predictably apoplectic about the Court’s ruling, writing, “Religious freedom is not the right to use your power as an agent of the state and a public school coach to impose your beliefs on students.”

Yet, nothing in the record indicates Kennedy’s prayers were in any way coercive. When approached by players who wanted to join him in prayer, he responded simply by saying, “This is a free country. You can do what you want.” Not exactly the stuff of intimidation.

No American should have to choose between their

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