Supreme Court appears likely to allow Christian prayer in public schools, eroding religious neutrality
Yesterday, the Supreme Court heard arguments in a case that revolves around an issue that was seemingly settled decades ago: the separation of church and state. Specifically, whether public school officials can involve students in explicit Christian prayer.
Joseph Kennedy, a coach for the Bremerton High School football team in Washington state, began praying with the student athletes after their games in 2008. Over time, more students began to join him, though whether they did so out of a religious fellowship or perceived pressure is up for debate. According to the court record, “at least one parent confirmed a player felt ‘compelled to participate’ in Kennedy’s post-game prayers because ‘he felt he wouldn’t get to play as much if he didn’t.’
For the next seven years, Kennedy’s prayers took on the form of grand motivational speeches until it was finally noticed by the school district in 2015. He was asked to end his public prayer sessions, which had become a spectacle at the 50-yard-line under the stadium lights and in front of players and spectators. Kennedy refused all attempts at accommodation offered by the district and instead hired lawyers at the far-right First Liberty Institute to threaten suit. The coach was eventually placed on administrative leave and did not apply for a contract renewal.
That wasn’t the end, though. Kennedy claimed he had been fired and sued the school for violating his First Amendment rights. Both the district court and appeals court ruled in favor of the school, finding that—as previous Supreme Court precedent demands—public school-sponsored religious activities are prohibited by the Constitution. A three judge panel of the Ninth Circuit Court of Appeals summed up the case thusly (pdf):
The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.
We already know that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are likely to rule in Kennedy’s favor—both from yesterday’s arguments and from the Supreme Court’s previous handling of the case in 2019.
In the case’s earlier visit to the Supreme Court, the four justices expressed sympathy for Kennedy’s expression of the Christian religion while on the job and criticized the Ninth Circuit’s reasoning in ruling for the school (pdf).
The Ninth Circuit’s opinion applies our decision in Garcetti v. Ceballos, 547 U. S. 410 (2006), to public school teachers and coaches in a highly tendentious way. According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.
Alito led the skepticism of the school’s case in oral arguments yesterday, suggesting Kennedy was “unlawfully fired” (listen to audio):
Alito: But it’s an employment discrimination case. And what do we do in an employment discrimination case where the employee says, I was unlawfully fired? We look at the employer’s reason for the action that was taken. And if the reason that is given is an unlawful reason, then the employee wins…We look at the reason that was given. What was the reason that you gave here?
School’s lawyer: The — although the reason in the last letter was — was about religion — was about religion concerns, it isn’t the case that the Court looks only at the — only at the given reason. In fact, it’s quite the opposite. This Court made clear in Saint Mary’s against Hicks and Reeves against Sanderson that it’s necessary to look at the whole record to determine whether — whether a — an employment action was improper and that goes for both the employer and the employee. And, here, there was — there was an enormous pile of evidence that the school district acted on other concerns: safety of the students, control of its program and message, and the worry about the storming of the field…
Alito: I know that you want to make this very complicated, but, seriously, it’s your argument that if the — if the employer gives an unlawful reason that the employer can nevertheless — nevertheless win because the employer could have given all sorts of other lawful reasons for the — for the action.
School’s lawyer: We don’t — we don’t at all think that it was — this was an unlawful reason under the Establishment Clause. We think that it was required. We think that at the very least the District had the discretion to take those concerns into account.
Alito then went on the compare Kennedy’s actions to a teacher who displays political signs at their own house:
Alito: Suppose the coach has got all sorts of political signs on the front lawn of the coach’s house. Can they fire him for that reason?
School’s lawyer: No, but no one would — no one would view that as government speech, number one, and no one would view that as a message being conveyed to students, something that they’re — that they might benefit from or are supposed to go along with.
Alito: No? No student could — no student could think that? No student could think that if — boy, if I don’t agree with — if I don’t say things in class, write things in my papers, that agree with the coach or if I — the teacher or I say something that’s contrary to what this teacher feels really strongly, that’s going to hurt me.
School’s lawyer: The question isn’t whether no student can think it. It — the question is whether — whether a reasonable observer should think it. It’s an objective test. And compare that situation with, for example, the teacher putting up those signs in the classroom. That — that shows that that — the school district could certainly be concerned about that — that pressure on the students, that they feel like if they don’t voice the opinion that’s up on the wall there, that they might be penalized for it, and the District can make the decision that it — that it is going to regulate that.
With those four reliable votes in Kennedy’s favor, the school will need both Chief Justice John Roberts and Justice Amy Coney Barrett to side with the three liberal justices. While Roberts may rule against Kennedy, Barrett has been a stalwart vote for the Christian right in the past. For instance, she was a key vote in allowing religious objectors to refuse to comply with Covid-19 mitigation measures.
Ultimately, it seems likely that the Court will rule in favor of Kennedy.
Kennedy v. Bremerton is just one prong of Republicans’ battle to reframe religious neutrality as unconstitutional discrimination against people of faith. We see it in state laws that allow medical providers to deny patients treatment that goes against the provider’s personal beliefs. We see it in rightwing media when they claim there is a “war on Christianity.” We’ve seen it in many court arguments, like Espinoza v. Montana, wherein Montana’s taxpayers were compelled to finance Christian schools that teach homophobia.
A ruling in favor of Kennedy would be a massive win for the right, allowing schools to embark on state-sponsored religious indoctrination of children, and a loss for the U.S. Constitution.