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  • Deirdre D. Macchia

U.S. SUPREME COURT UPHOLDS FOOTBALL COACH’S ABILITY TO PRAY ON THE PLAYING FIELD


The Supreme Court of the United States recently decided in favor of a high school football coach who lost his job due to his continuance of post-game prayers on the football field. The Justices ruled that the Petitioner’s conduct with respect to post-game prayer was protected by the First Amendment.


Joseph Kennedy was employed as a football coach at Bremerton High School since 2008. During his nearly two decades as a coach of the football team, Mr. Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. The practice culminated in a regular event where Mr. Kennedy would offer his prayers after the players and coaches had shaken hands, taking a knee at the 50-yard line and praying “quiet[ly] for approximately 30 seconds.” At the beginning, Mr. Kennedy prayed on his own, but over time players from both the home and visiting teams joined him in a short prayer. During this time, Mr. Kennedy incorporated short-motivational speeches with his prayer while others were present in the locker room. It was noted that this locker room practice was a school tradition that predated Mr. Kennedy’s tenure. In recollecting the practice, Mr. Kennedy reported that he never told any students that it was important that they participate in any religious activity and “never pressed or encouraged any students to join” his prayer. For over seven years, no complaints were received by the District about this practice.


The District’s superintendent did not learn of this practice until 2015 to which the District quickly reacted by sending Mr. Kennedy a letter identifying the inspirational talks including school prayer and prayer in the locker-room as “problematic practices.” Following the District’s letter, Mr. Kennedy briefly halted the prayers. Shortly thereafter, Mr. Kennedy notified the District that he intended to resume his prayers at the next game. The continuance of Mr. Kennedy’s prayer caused a scene that the District described as chaotic, with spectators and reporters attempting to join Mr. Kennedy at midfield. The District indicated that prayers violated District policy and provided Mr. Kennedy options to engage in school prayer that it believed would not be in violation of school policy. Subsequently, Mr. Kennedy continued to pray at the next two games, prompting the District to place him on administrative leave and eventually declined to renew his contract for the following season.


Mr. Kennedy argued before the federal district court that the District’s actions violated his rights under the free speech and free exercise clauses of the U.S. Constitution. The U.S. Court of Appeals for the 9th Circuit ruled in favor of the District, but the Supreme Court decision reversed that ruling. In a 6-3 decision ruling in favor of Mr. Kennedy, Justice Gorsuch rested the majority’s opinion on the test outlined in Lemon v. Kurtzman. Colloquially known as the Lemon test, a law or practice will pass constitutional scrutiny if its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.” The Supreme Court agreed that Mr. Kennedy had met his part of the test by showing that the decision not to renew his contract violated both the free speech clause and free exercise clauses of the Constitution. Justice Gorsuch added that courts should determine whether a law or practice violates the establishment clause by looking at history and the understanding of the drafters of the Constitution, which he asserted that the court of appeals failed to do. Gorsuch distinguished the instant case from other school prayer cases in which the Court found the prayer involving public schools to be “problematically coercive.” The majority reasoned that in the instant case, Mr. Kennedy’s prayers were not publicly broadcast or recited to a captive audience. In addition, students were not required or expected to participate.


The minority opinion, written by Justice Sonia Sotomayor, blamed the majority with misconstruing the facts of the case in depicting the prayers as “private and quiet” when the prayers in fact caused “severe disruption to school events.” Moreover, Sotomayor wrote that the key question in the case was whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event” and not whether Mr. Kennedy could pray privately.


Although the imminent impact of the case is unknown, its effect may erode earlier established precedent involving separation of church and state and school prayer with respect to public school districts


This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to Athina L. Cornell of Cornell, Merlino, McKeever & Osborne at edlawgroup@cmmolaw.com or Deirdre D. Macchia at dmacchia@cmmolaw.com