On Monday, the Supreme Court will hear arguments in a high-profile case involving a high school football coach who was reprimanded for praying after the game at the football field’s 50-yard line.
The dispute has spawned dozens of briefs from interest groups on both sides, with religious liberty advocates urging the 6-3 conservative majority court to advance their case, while supporters of the school have called on the justices to set a marker on the separation between church and state. .
An unusual twist that makes the stakes in the case hard to gauge is that coach Joseph Kennedy and the Seattle-area school district have offered wildly contrasting accounts of what transpired. Depending on which facts the court finds most persuasive, the case could be settled quietly or it could mark a turning point in First Amendment law.
“A real question the court has to decide here is which version of the facts it agrees with. And to an extent, deciding that may very well decide the case,” said David Gossett, a partner at Davis Wright Tremaine, who backed the school district in an amicus curiae brief with accounts from former professional and college athletes and coaches.
Monday’s dispute will pit Kennedy, a devout Christian, against the Bremerton, Washington, school district, where he worked before his contract expired.
Starting in 2008, Kennedy began kneeling on the football field after games and saying a short prayer. Eventually, many of his players joined him, as did members of opposing teams. This continued without formal complaint until 2015, when the school told Kennedy to stop.
Administrators said Kennedy’s conduct violated school policy that prohibited staff from encouraging students to engage in prayer or other devotional activity. The record also shows that one player, an atheist, feared that not joining Kennedy’s midfield prayer would “adversely affect his playing time.”
Kennedy defied the school’s order and was placed on administrative leave. He did not reapply for his job after he terminated his contract in 2015. He later filed a lawsuit, claiming that the school violated his First Amendment speech and religious rights by disciplining him for his private religious expression. .
The two parties painted very different versions of the events that led to the litigation. Kennedy describes himself as simply engaging in quiet, personal, private prayer at the end of the games. The school district, for its part, portrays Kennedy as leading a disruptive and highly publicized campaign to promote his right to religious demonstration at a school event.
A federal district court in Washington sided with the school. The judge concluded that Kennedy’s conduct was not constitutionally protected because he had been acting in his public employee capacity.
Kennedy appealed but was again rejected. A unanimous three-judge panel of the San Francisco-based federal appeals court held that the Bremerton School District (BSD) violated the Constitution’s prohibition on government support of religion “by allowing Kennedy to pray at the end of football games, in midfield, with students who felt pressured to join him.”
“Kennedy’s attempts to draw national attention to his challenge to BSD compel the conclusion that he was not engaging in private prayer, but rather was engaging in public speech of an overtly religious nature while performing his job duties,” said the panel of judges in the US the Ninth Circuit Court of Appeals wrote.
As Kennedy files his appeal to the Supreme Court on Monday, he is joined by several outside supporters. Among them is the American Center for Law and Justice, run by Trump-allied lawyer Jay Sekulow.
Sekulow’s group argues that the court should use the case as a vehicle to permanently erase from the books any remnants of its landmark 1971 ruling in Lemon v. Kurtzman, who created a legal test to measure the separation of church and state under the Establishment Clause of the First Amendment that conservatives have long argued goes too far in favor of secularism.
“As nearly half a century of often scathing criticism from academics, members of this Court, and lower court judges demonstrates, Lemon is flawed in reasoning,” Sekulow wrote in an amicus brief. “Its fundamental flaw with it, of course, is that it is not tied to the original meaning of the Establishment Clause. Devoid of solid doctrinal foundations, Lemon is elastic and unprincipled.”
The school district also has supporters on its side, including the American Civil Liberties Union (ACLU), which has urged judges to affirm the 9th Circuit ruling.
In an amicus brief, the ACLU told the court that speech by school officials on duty at a school-sponsored event, such as a high school football game, “carries the strong endorsement of the school.” .
“Public schools should welcome students of all faiths and none,” the group wrote. “That obligation is compromised when school officials take it upon themselves to convey (intentionally or unintentionally) religious messages.”
The group added: “Therefore, public schools have a constitutional duty to prevent their staff from engaging in behavior that will put the school’s approval on religious doctrine or activity.”
Gossett’s amicus curiae brief, from the Davis Wright Tremaine law firm, includes testimony from former professional and collegiate athletes who say coach-led sentence is “inherently coercive” on team members.
“The record here demonstrates that Mr. Kennedy’s actions had a propensity to lead players to feel compelled to participate in Mr. Kennedy’s expressions of faith, even if they would rather not have done so,” they wrote. “Accordingly, the amici urge the Court to affirm the Ninth Circuit’s decision below and reaffirm the basic principle that in the captive setting of a public school, ‘the government cannot coerce [children] to support or participate in religion or its exercise’”.
The school district may be in a tough fight given that the conservative-dominated Supreme Court in recent years has tended to be very sympathetic to religious interests.
The case, Kennedy v. Bremerton School District, will be heard Monday with a decision expected in the summer.
Reference-thehill.com