“Hello everybody! Welcome to another exciting challenge on the game show everyone is talking about, “You’re the Supreme Court!” Today, we take on a challenge that crosses into legal, ethical and logical gray areas. What is the right way to handle a football coach who won’t stop praying on the football field? Are you ready, contestants? Here we go!”
Former Bremerton (Wash.) High School assistant football coach Joseph Kennedy began “taking a knee” at midfield long before NFL players were Kaepenicking. Kennedy knelt in prayer at midfield after games, and was often joined by members of the team. Bremerton public school officials fired him from his job in 2015 when he refused to stop his on-field prayers, which his superiors said violated the Constitution’s prohibition against government endorsement of religion. Bremerton sued, and all this time his case has been winding its way through the system, finally reaching the Supreme Court in oral argument this week.
The question before the Court is whether Kennedy’s on-field prayers are protected by the First Amendment’s guarantee of religious liberty or violate the First Amendment by promoting his religion in a government supported setting. The justices will issue their opinion decision in June.
In the oral argument, the issues were scattered far and wide, prime among them being “What’s going on here?” Was this a public display of religion under the school’s auspices? Was Kennedy’s conduct merely a private moment, protected by his right to worship without government interference? Did an assistant coach’s praying place pressure on the team’s players to join him in prayer, thus constituting coercion? In oral argument, the hypotheticals from the Justices came in waves.
Chief Justice Roberts asked whether Kennedy could have prayed aloud mid-field while standing with his arms outstretched. Justice Barrett added, “Let’s say he says the ‘Our Father’ with arms outstretched and it starts causing a lot of havoc in the stands.” Then what? Justice Alito mused whether Kennedy could or would have been disciplined for protesting the invasion of Ukraine, climate change or racial injustice. Justice Kavanaugh asked whether a school could “fire the coach for the sign of the cross right before the game.” Justice Sotomayor helped out not at all with an incoherent hypothetical about a public high school disciplining “a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray.”
At first, Kennedy prayed alone, but after a few games some of his players asked to join in. Eventually visiting players became part of the ritual. Soon it included an inspirational talk with religious references. Kennedy would sometimes stand in the middle of a circle of players holding a helmet above his head.
The decision is likely to turn on whether the justices view Kennedy’s prayers as private expressions of thanks to the Lord or public spectacles.
“So, contestants, YOU’RE THE SUPREME COURT! What would you rule?”
“Yes, Jack! You’re the first to buzz in! What’s your answer? (Jack lives in Alexandria, Va. He is a D.C. lawyer, a professional ethicist—whatever that means—and he runs a web echo chamber called “Ethics Alarms!” Sorry, Jack, I’ve never read it, like just about everybody else with a life! But “You’re the Supreme Court!” Take it away!”
Well, Wink, I have to say that I see this as an easy call from an ethics perspective. To begin with, Coach Kennedy—remember, he’s an assistant coach—has no right to use school property for a public religious demonstration, which is what his prayers are even if all of the spectators had left the stands before he started his ritual. (So far, I haven’t been able to find out how long the games had been over before he had his prayer meeting.) If this was really just a personal expression of thanks, Kennedy didn’t have to use the football field. Of course he was making the school a party to his religious exercise.
The school also argues that his display constituted coercion, which apparently the school did not raise in the original case. That may be a legal procedural issue, but it’s still relevant ethically. Justice Kavanaugh—you know, the high school rapist and college beer-addict? He’s also been a school basketball coach— is quoted in the Times as asking, “What about the player who thinks, ‘If I don’t participate in this, I won’t start next week?’…Every player’s trying to get on the good side of the coach.”
He’s right, especially if most of his team mates are joining in (see the photo above.).
I see this issue as distinct from the NFL National Anthem protest mess, which unquestionable occurred during pre-game ceremonies and before full stadiums, and was engaged in by employees. No constitutional rights were involved, and employers’ rights to forbid political displays in the workplace governed. In this case, the issue is religion, not politics, and the employer is the government. Nevertheless, the same basic principle applies. The school can’t forbid the coach from praying, but it can forbid him from making praying party of his players’ school activities or doing so in a manner that suggest that the school approves, endorses, or is enabling the practice of religion.
Kennedy should have been fired.