The Supreme Court ponders the right to pray on the 50-yard line

The parties included this image of Coach Kennedy, praying with the crowd after the homecoming game, in their joint appendix submitted to the Supreme Court.

By Nina Totenberg

April 25, 2022

The U.S. Supreme Court jumps back into the culture wars Monday in a case that involves a football coach's asserted right to kneel and pray on the 50-yard line at the conclusion of a public school football game.

Joseph Kennedy, a coach for the Bremerton, Wash., High School Varsity and JV football teams began praying with his players before and after games in 2008. At the end of a game, he would take a knee and say a prayer with his players at midfield.

By the 2015 season, Kennedy was often joined at the 50-yard line as well by players from the opposing team. Indeed, it was an approving comment by an opposing coach that finally alerted school district officials to the practice.

The school orders Kennedy to stop

That prompted the athletic director, and later the superintendent, to order the coaching staff to stop praying with students. Kennedy stopped his locker room prayers completely, and for a least one game left the home field, returning later when the crowds had gone, to pray by himself on the 50-yard line.

But the Marine veteran didn't like doing it that way.

"I fought and defended the Constitution, and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody — that's just not America," he said in an interview with NPR.

So Kennedy returned to his praying practice right after the game, mainly at away games, and with little fanfare. By the time of the big homecoming game, Kennedy had retained lawyers from the First Liberty Institute. In a letter to school officials, they said that the coach had a constitutional right to pray on the 50-yard line at the end of the game, and that students should be free to voluntarily join in.

In the lead up to the game, Kennedy embraced his newfound celebrity, making repeated media appearances. In a subsequent deposition, he described this media activity as "spreading the word about what was going on in Bremerton."

Tension builds ahead of homecoming

But as events unfolded, "it was a zoo," said John Polm, Bremerton High's principal, describing the homecoming game during his deposition. Attendance doubled, five TV stations showed up, and a group of Satanists unsuccessfully attempted to take the field to perform their own competing ritual.

Nathan Gillam, who served as head coach, broke down in his deposition when describing the harassment he experienced before and at the game and the chaos that ensued after. "I was done coaching at that point because I feared for my life," he said. Despite his 11 years building the program, he decided "this is not worth it; I have two children."

After the final whistle blew, a largely pro-prayer crowd mobbed the field, overcoming the extra security presence and knocking over some band members and cheerleaders. Surrounded by TV cameras and some players, Kennedy knelt to pray on the field while a state representative placed his hand on Kennedy's shoulder in support.

After the game, the back and forth between Kennedy's lawyers and the school district continued. The school district took the position that while it wished to accommodate Kennedy's private religious expression, it could not allow his midfield post-game prayers because such a public display at a school event would be perceived as the school's endorsement of religion.

Two weeks later, the superintendent placed Kennedy on paid administrative leave, citing his failure to abide by the district's policy against encouraging or discouraging student religious expression. Kennedy did not apply for a new contract the following year.

Religious discrimination?

No good cause—or bad cause—goes unlitigated, of course. Kennedy sued the school district, contending that it violated his First Amendment right to free speech and the free exercise of religion. He lost in the lower courts, but appealed to the Supreme Court, where the justices hear arguments Monday.

"What's at stake here is really the ability of teachers and coaches to engage in religious exercise while on duty," says former Solicitor General Paul Clement, who is representing Coach Kennedy in the Supreme Court. It is "established beyond doubt at this point that students are allowed to engage in a degree of religious exercise on school grounds," he notes, adding that this case "will clarify the law [as to] whether teachers and coaches have comparable rights to students."

But the school district and it's supporters contest this narrative.

"He was not being persecuted for his faith," asserts Paul Peterson, a parent who's son played for Coach Kennedy on the junior varsity team in 2010. "If it had been a quiet moment in prayer, nobody would have ever said a word about it."

Richard Katskee, representing the school board, argues that what Coach Kennedy did wasn't really private prayer at all.

"He was at the center of the field at an event the school district hires coaches to run; he insisted that he be surrounded by students, and he was delivering a prayer that they could hear. To call that personal and private just doesn't make any sense."

Former Pittsburgh Steelers football kicker Frank Lambert, now a Purdue University history professor, highlights the "dilemma" faced by players when a coach leads prayers, even if participation is optional: "If I do not participate, I risk demonstrating that perhaps I'm not a team player," and the player risks losing playing time to a competitor for his position who joined in the coach's prayer, he says. Lambert filed a friend of the court brief in the case, along with a dozen other former athletes, supporting the school district.

But 11 current or former professional football players have filed briefs on the other side, including three Hall of Famers. As one of the briefs puts it, "perversely, by reducing coaches to government employees with no autonomy, the [lower] court's reasoning would needlessly undermine coaches' ability to be effective as mentors and role models."

Those in Bremerton who have spoken out against coach Kennedy's public praying are in the minority, but they contend that is the point. "Where is free expression of the non-Christian student, the Jewish student, the Muslim student, the Sikh student, the student of no religion at all?" asks Student Rabbi Emily Katcher of the Beth Hatikvah congregation in Bremerton. "Of course they have the freedom, but they are in a position of weakness."

Rev. Douglas Avilesbernal, executive minister of the Evergreen Association of American Baptist Churches, worries that a victory for Kennedy will go too far, blurring the lines between religious and civic life, emboldening "a specific type of Christianity," to everyone else's detriment.

But the coach's lawyer, Paul Clement, compares Kennedy's mid-field prayers to a teacher wearing a yarmulke or crossing herself in the cafeteria before eating lunch. While some students might see forms of religious expression and feel pressure to join along, "that is something that you need to allow as long as there isn't any coercion," he says.

Kennedy and his supporters say this case is about the school district attempting to stamp out religious expression by its employees. They point to a letter written by the Bremerton's superintendent, instructing Kennedy that he may not "engage in demonstrative religious activity" that is "readily observable" to students and the public. "That seems to us to send a message of hostility to religion," says lawyer Clement, "like this is something almost shameful that you have to go do in a private booth."

The school district sees things very differently. "The problem here was this was never personal or private or solitary or any of those other adjectives that Mr. Kennedy's lawyers describe," says lawyer Katskee. "He chose to put himself in the center of the field at the end of the game to make a spectacle."

Opening the door to prayer in public schools?

Coach Kennedy's case comes to the Supreme court in the midst of a sea change in the law relating to the relationship between government and religion. In 1962, the Supreme Court outlawed officially sponsored prayer in public school, emphasizing the First Amendment's ban on any state establishment of religion. But more recently, the court has moved away from concerns about establishing or endorsing religion, emphasizing instead the First Amendment's guarantee to the free exercise of religion.

In 1971, for instance, the Supreme Court ruled 8-to-1 that states may not pay for teachers' salaries or instructional material at private religious schools without violating the Establishment Clause. By contrast, in 2018, the court sought to equalize funding for religious and non-religious private schools. Without overturning the 1971 case, the court, by a 5-to-4 vote, held that a state must provide scholarships to students at private religious schools if it does so for private non-religious schools. And this term the court heard a follow-up case that may further expand state funding for K through 12 religious education.

So, is coach Kennedy's case a camel's nose in the tent that could lead eventually to overturning the 60-year-old decision banning official prayer in public schools? Katskee, the school board's lawyer, thinks it could be. But Clement disagrees.

"Those cases may come down the pike," he acknowledges, but this case, he adds, is just about whether employees at a public school can express their religion on school grounds.

A decision in this case is expected by the end of June.