The path to the U.S. Supreme Court sometimes takes strange and unexpected turns. As former Justice David Souter once observed, the high court’s decisions involve real people with actual consequences.
Such is the case with Joe Kennedy, a former Marine, whose chance hiring in 2008 as a part-time assistant high school football coach in Bremerton, Washington, has landed him in an epic First Amendment controversy over free speech and religious freedom.
Pursuant to his hiring, Coach Kennedy happened to watch a 2006 movie about a coach who turned around a losing football program by praising God after every game. Kennedy decided to emulate that practice by kneeling at midfield after games and praying. For most of the next seven years, he did so with little attention or fanfare. But by the 2015 football season, his post-game ritual attracted not only his own players but players and coaches from opposing teams, as well.
When an opposing coach complimented this practice to a member of the Bremerton School District, Coach Kennedy was asked to cease his post-game prayer, with officials asserting that his actions violated the establishment clause of the First Amendment by meshing church and state. After all, Bremerton High School is a public institution, supported like most such schools by taxpayer dollars.
At first, Coach Kennedy abided by the request. But later in the 2015 season, he restarted his post-game tradition, to the chagrin of the head coach, as well as the school district. When the season was over, the Bremerton head coach retired and simultaneously recommended that Coach Kennedy not be rehired. Since he was part-time and worked on an annual contract, it seemed like an easy move to let Kennedy go. He was not tendered another offer to coach, and he did not reapply for same. Instead, he filed suit in federal District Court in Washington state, alleging that his First Amendment rights of free speech and free exercise of religion had been infringed.
For the next six years, Joe Kennedy’s case went back-and-forth between the U.S. District Court and the U.S. Court of Appeals for the 9th Circuit. Multiple rulings by both of the latter courts favored the school district’s argument that Coach Kennedy’s actions had crossed the establishment-of-religion line.
But this year, the U.S. Supreme Court accepted Kennedy’s certiorari appeal and recently heard oral arguments in the case. Based on the questions and comments of justices during oral arguments, it appears that Kennedy’s post-game prayers may have been answered.
The U.S. Supreme Court’s rulings have been consistent in some elements of the First Amendment religious establishment clause and have evolved in others. For instance, the high court has rejected mandatory school prayers during school hours and during events such as commencement. Similarly, the Supreme Court has denied requests to mix teaching of evolution with creationism. However, there has been growing support for allowing religious organizations to meet on school grounds after hours and for permitting public school resources to be utilized by parochial institutions.
The present case aims to set an important precedent in the freedom-of-religion area and comes at a time when conservative ideology on the Supreme Court is ascendant. Further, the case has been a cause célèbre among conservatives since 2015, when it was highlighted by Donald Trump and Dr. Ben Carson, among others.
The questions in the Kennedy v. Bremerton School District case revolve around Kennedy’s status as a public employee and whether coercion was involved in his post-game actions. From this vantage point, it appears that the Supreme Court could promulgate a split decision, supporting Kennedy’s right to conduct prayers after games are finished and most people are departed, while determining that his legal arguments about getting his old job back are moot.
However the aforementioned case turns out, the Supreme Court and American society as a whole are moving in the direction of tolerating more religion in our daily lives. Amen to that.
Dr. Samuel B. Hoff is a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University. He has taught and published extensively on constitutional-law issues.
