I believe that a personal prayer would be considered a "personal religious observance." I don't think that a coach led team prayer would. As I said before, I'm not sure that this ruling is as far reaching as some think.
Supreme Court Sides With Coach Over Prayers on 50-Yard Line
Over the last 60 years, the Supreme Court has rejected prayer in public schools, at least when it was officially required or part of a formal ceremony like a high school graduation. As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment’s prohibition of government establishment of religion.
“The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” Justice John Paul Stevens wrote for the majority in that case.
Justice Gorsuch wrote that those precedents did not apply to Mr. Kennedy’s conduct.
“The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience,” he wrote. “Students were not required or expected to participate.”
That is the issue though--what transpired in many cases was not a personal observance, and Kennedy politicized it and garnered a ton of attention as to what was going on.
From Sotomayor's dissenting opinion:
Today’s decision goes beyond merely misreading the record. The Court overrules
Lemon v.
Kurtzman,
403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot” of that decision.
Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.
I
As the majority tells it, Kennedy, a coach for the District’s football program, “lost his job” for “pray[ing] quietly while his students were otherwise occupied.”
Ante, at 1. The record before us, however, tells a different story.
A
The District serves approximately 5,057 students and employs 332 teachers and 400 nonteaching personnel in Kitsap County, Washington. The county is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated. See Brief for Religious and Denominational Organizations et al. as
Amici Curiae 4.
The District first hired Kennedy in 2008, on a renewable annual contract, to serve as a part-time assistant coach for the varsity football team and head coach for the junior varsity team at Bremerton High School (BHS). Kennedy’s job description required him to “[a]ccompany and direct” all home and out-of-town games to which he was assigned, overseeing preparation and transportation before games, being “[r]esponsible for player behavior both on and off the field,” supervising dressing rooms, and “secur[ing] all facilities at the close of each practice.” App. 32–34, 36. His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave.
Id., at 133.
The District also set requirements for Kennedy’s interactions with players, obliging him, like all coaches, to “exhibit sportsmanlike conduct at all times,” “utilize positive motivational strategies to encourage athletic performance,” and serve as a “mentor and role model for the student athletes.”
Id., at 56. In addition, Kennedy’s position made him responsible for interacting with members of the community. In this capacity, the District required Kennedy and other coaches to “maintain positive media relations,” “always approach officials with composure” with the expectation that they were “constantly being observed by others,” and “communicate effectively” with parents.
Ibid.
Finally, District coaches had to “[a]dhere to [District] policies and administrative regulations” more generally.
Id., at 30–31. As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”
Id., at 26–28.
B
In September 2015, a coach from another school’s football team informed BHS’ principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team’s coach told the principal that he thought it was “ ‘cool’ ” that the District “ ‘would allow [its] coaches to go ahead and invite other teams’ coaches and players to pray after a game.’ ”
Id., at 229.
The District initiated an inquiry into whether its policy on Religious-Related Activities and Practices had been violated. It learned that, since his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team. Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him.
Id., at 40. The District also learned that students had prayed in the past in the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too.
While the District’s inquiry was pending, its athletic director attended BHS’ September 11, 2015, football game and told Kennedy that he should not be conducting prayers with players. After the game, while the athletic director watched, Kennedy led a prayer out loud, holding up a player’s helmet as the players kneeled around him. While riding the bus home with the team, Kennedy posted on Facebook that he thought he might have just been fired for praying.
On September 17, the District’s superintendent sent Kennedy a letter informing him that leading prayers with students on the field and in the locker room would likely be found to violate the Establishment Clause, exposing the District to legal liability. The District acknowledged that Kennedy had “not actively encouraged, or required, participation” but emphasized that “school staff may not indirectly encourage students to engage in religious activity” or “endors[e]” religious activity; rather, the District explained, staff “must remain neutral” “while performing their job duties.”
Id., at 41–43. The District instructed Kennedy that any motivational talks to students must remain secular, “so as to avoid alienation of any team member.”
Id., at 44.
The District reiterated that “all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.”
Id., at 45. To avoid endorsing student religious exercise, the District instructed that such activity must be nondemonstrative or conducted separately from students, away from student activities.
Ibid. The District expressed concern that Kennedy had continued his midfield prayer practice at two games after the District’s athletic director and the varsity team’s head coach had instructed him to stop.
Id., at 40–41.
Kennedy stopped participating in locker room prayers and, after a game the following day, gave a secular speech. He returned to pray in the stadium alone after his duties were over and everyone had left the stadium, to which the District had no objection. Kennedy then hired an attorney, who, on October 14, sent a letter explaining that Kennedy was “motivated by his sincerely-held religious beliefs to pray following each football game.”
Id., at 63. The letter claimed that the District had required that Kennedy “flee from students if they voluntarily choose to come to a place where he is privately praying during personal time,” referring to the 50-yard line of the football field immediately following the conclusion of a game.
Id., at 70. Kennedy requested that the District simply issue a “clarif[ication] that the prayer is [Kennedy’s] private speech” and that the District not “interfere” with students joining Kennedy in prayer.
Id., at 71. The letter further announced that Kennedy would resume his 50-yard-line prayer practice the next day after the October 16 homecoming game.
1
Before the homecoming game, Kennedy made multiple media appearances to publicize his plans to pray at the 50-yard line, leading to an article in the Seattle News and a local television broadcast about the upcoming homecoming game. In the wake of this media coverage, the District began receiving a large number of emails, letters, and calls, many of them threatening.
The District responded to Kennedy’s letter before the game on October 16. It emphasized that Kennedy’s letter evinced “materia[l] misunderstand[ings]” of many of the facts at issue.
Id., at 76. For instance, Kennedy’s letter asserted that he had not invited anyone to pray with him; the District noted that that might be true of Kennedy’s September 17 prayer specifically, but that Kennedy had acknowledged inviting others to join him on many previous occasions. The District’s September 17 letter had explained that Kennedy traditionally held up helmets from the BHS and opposing teams while players from each team kneeled around him. While Kennedy’s letter asserted that his prayers “occurr[ed] ‘on his own time,’ after his duties as a District employee had ceased,” the District pointed out that Kennedy “remain[ed] on duty” when his prayers occurred “immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.”
Id., at 78 (emphasis deleted). The District further noted that “[d]uring the time following completion of the game, until players are released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is clearly on duty and paid to continue supervision of students.”
Id., at 79.
The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion. The District explained that its establishment concerns were motivated by the specific facts at issue, because engaging in prayer on the 50-yard line immediately after the game finished would appear to be an extension of Kennedy’s “prior, long-standing and well-known history of leading students in prayer” on the 50-yard line after games.
Id., at 81. The District therefore reaffirmed its prior directives to Kennedy.
On October 16, after playing of the game had concluded, Kennedy shook hands with the opposing team, and as advertised, knelt to pray while most BHS players were singing the school’s fight song. He quickly was joined by coaches and players from the opposing team. Television news cameras surrounded the group.
2 Members of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members. After the game, the District received calls from Satanists who “ ‘intended to conduct ceremonies on the field after football games if others were allowed to.’ ”
Id., at 181. To secure the field and enable subsequent games to continue safely, the District was forced to make security arrangements with the local police and to post signs near the field and place robocalls to parents reiterating that the field was not open to the public.
The District sent Kennedy another letter on October 23, explaining that his conduct at the October 16 game was inconsistent with the District’s requirements for two reasons. First, it “drew [him] away from [his] work”; Kennedy had, “until recently, . . . regularly c[o]me to the locker room with the team and other coaches following the game” and had “specific responsibility for the supervision of players in the locker room following games.”
Id., at 92–93. Second, his conduct raised Establishment Clause concerns, because “any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given [his] prior public conduct, overtly religious conduct.”
Id., at 93.
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. Stressing that “[d]evelopment of accommodations is an interactive process,” it invited Kennedy to reach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others.
Id., at 93–94. The District noted, however, that “further violations of [its] directives” would be grounds for discipline or termination.
Id., at 95.
Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50-yard line immediately after games. During the October 23 and October 26 games, Kennedy again prayed at the 50-yard line immediately following the game, while postgame activities were still ongoing. At the October 23 game, Kennedy kneeled on the field alone with players standing nearby. At the October 26 game, Kennedy prayed surrounded by members of the public, including state representatives who attended the game to support Kennedy. The BHS players, after singing the fight song, joined Kennedy at midfield after he stood up from praying.
In an October 28 letter, the District notified Kennedy that it was placing him on paid administrative leave for violating its directives at the October 16, October 23, and October 26 games by kneeling on the field and praying immediately following the games before rejoining the players for postgame talks. The District recounted that it had offered accommodations to, and offered to engage in further discussions with, Kennedy to permit his religious exercise, and that Kennedy had failed to respond to these offers. The District stressed that it remained willing to discuss possible accommodations if Kennedy was willing.
After the issues with Kennedy arose, several parents reached out to the District saying that their children had participated in Kennedy’s prayers solely to avoid separating themselves from the rest of the team. No BHS students appeared to pray on the field after Kennedy’s suspension.
In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members.
Id., at 114. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.
C
Kennedy then filed suit. He contended, as relevant, that the District violated his rights under the Free Speech and Free Exercise Clauses of the
First Amendment. Kennedy moved for a preliminary injunction, which the District Court denied based on the circumstances surrounding Kennedy’s prayers. The court concluded that Kennedy had “chose[n] a time and event,” the October 16 homecoming game, that was “a big deal” for students, and then “used that opportunity to convey his religious views” in a manner a reasonable observer would have seen as a “public employee . . . leading an orchestrated session of faith.” App. to Pet. for Cert. 303. The Court of Appeals affirmed, again emphasizing the specific context of Kennedy’s prayers. The court rejected Kennedy’s contention that he had been “praying on the fifty-yard line ‘silently and alone.’ ”
Kennedy v.
Bremerton School Dist.,
869 F. 3d 813, 825 (CA9 2017). The court noted that he had in fact refused “an accommodation permitting him to pray . . . after the stadium had emptied,” “indicat[ing] that it is essential that his speech be delivered in the presence of students and spectators.”
Ibid. This Court denied certiorari.
Following discovery, the District Court granted summary judgment to the District. The court concluded that Kennedy’s 50-yard-line prayers were not entitled to protection under the Free Speech Clause because his speech was made in his capacity as a public employee, not as a private citizen. 443 F. Supp. 3d 1223, 1237 (WD Wash. 2020). In addition, the court held that Kennedy’s prayer practice violated the Establishment Clause, reasoning that “speech from the center of the football field immediately after each game . . . conveys official sanction.”
Id., at 1238. That was especially true where Kennedy, a school employee, initiated the prayer; Kennedy was “joined by students or adults to create a group of worshippers in a place the school controls access to”; and Kennedy had a long “history of engaging in religious activity with players” that would have led a familiar observer to believe that Kennedy was “continuing this tradition” with prayer at the 50-yard line.
Id., at 1238–1239. The District Court further found that players had reported “feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.”
Id., at 1239. The court rejected Kennedy’s free exercise claim, finding the District’s directive narrowly tailored to its Establishment Clause concerns and citing Kennedy’s refusal to cooperate in finding an accommodation that would be acceptable to him.
Id., at 1240.
The Court of Appeals affirmed, explaining that “the facts in the record utterly belie [Kennedy’s] contention that the prayer was personal and private.”
991 F. 3d 1004, 1017 (CA9 2021). The court instead concluded that Kennedy’s speech constituted government speech, as he “repeatedly acknowledged that—and behaved as if—he was a mentor, motivational speaker, and role model to students specifically at the conclusion of the game.”
Id., at 1015 (emphasis deleted). In the alternative, the court concluded that Kennedy’s speech, even if in his capacity as a private citizen, was appropriately regulated by the District to avoid an Establishment Clause violation, emphasizing once more that this conclusion was tied to the specific “evolution of Kennedy’s prayer practice with students” over time.
Id., at 1018. The court rejected Kennedy’s free exercise claim for the reasons stated by the District Court.
Id., at 1020. The Court of Appeals denied rehearing en banc, and this Court granted certiorari.
1
1
