A Big Win for Religious Liberty at the Supreme Court

SCOTUS upholds a coach's right to pray.

On October 23, 2015, high school football coach Joseph Kennedy knelt at the 50-yard line and bowed his head for a “brief, quiet prayer.” The game was over and Coach Kennedy prayed alone.  

It was a quiet, reflective moment for the coach to exercise his religious beliefs. The school district objected, informing him it was “unconstitutional.”

Three days later, after a football game on October 26, Coach Kennedy “again knelt alone to offer a brief prayer as the players engaged in postgame traditions.” Some adults joined him on the field as he prayed.

That would be his final game.

Shortly thereafter, the school district put Coach Kennedy on leave and prohibited him from participating in any capacity in “football program activities.” The school district said he had engaged in “public and demonstrative religious conduct while still on duty as an assistant coach.” If he wasn’t fired, the school district would purportedly “violate the Establishment Clause” because “reasonable students and attendees might perceive the district as endorsing religion.” (Cleaned up). However, no players had been coerced to pray with Coach Kennedy, and he otherwise had a spotless record. It didn’t matter – the school district followed the recommendation that Coach Kennedy not be rehired the next year. Simply put, he was disciplined for praying at the wrong time and at the wrong place.

This morning, the Supreme Court upheld the right of Coach Kennedy to say a private prayer under the Free Exercise and Free Speech Clause of the First Amendment. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”)

Justice Neil Gorsuch, writing for the majority, rejected the school district’s argument that the suspension of Coach Kennedy “was essential to avoid a violation of the Establishment Clause,” stating “an Establishment Clause violation does not automatically follow whenever a public school or other government entity fails to censor private religious speech.”

He further noted that “where there is no evidence anyone sought to persuade or force students to participate, and there is no formal school program accommodating the religious activity at issue.” The conduct itself wasn’t inherently coercive; a school’s failure to censor private religious speech does not establish religion. The Establishment Clause, instead, “must be interpreted by ‘reference to historical practices and understandings.’”

Justice Gorsuch continued:

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.

This continues Justice Gorsuch’s strong defenses of religious liberty. Previously, when the New York Catholic Diocese of Brooklyn challenged the occupancy limits imposed on religious services by Governor Cuomo during the COVID-19 pandemic, Gorsuch came to their defense, stating: “there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

Back to Coach Kennedy’s case. The liberal Justices – Sotomayor, Breyer, and Kagan – dissented. The first sentence of Justice Sotomayor’s dissent started with an inaccurate description of Coach Kennedy’s actions: “This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event.”

What Sotomayor gets wrong is that this case was never about praying “at the center of a school event.” Coach Kennedy prayed after the school event was over. Sloppy writing reveals sloppy thinking, and the dissent never recovers from this error.

Instead, Sotomayor only continues with her mistakes, alleging Coach Kennedy’s conduct caused “severe disruption to school events.”

How can that be accurate if the “school event” has concluded when the prayer takes place?

Sotomayor cites to the public’s reaction to the prayer after the “school event,” observing that members of the public rushed to the field to join the silent prayer. She also writes that the school district “received calls from Satanists who ‘intended to conduct ceremonies on the field after football games if others were allowed to.’”

In other words, the liberal justices would curtail a person’s proper exercise of a First Amendment right because of the public’s reaction to, or perception of, that First Amendment right. However, as Justice Gorsuch made clear: “the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which . . . religious activity can be proscribed’ based on ‘perceptions’” or ‘discomfort.’”

Taking matters further, Justices Sotomayor, Breyer, and Kagan found there to be a “strong argument” that Coach Kennedy’s prayer “was speech in his official capacity as an employee that is not entitled to First Amendment protections at all.” These Justices announce their hostility to the exercise of religion and speech, and their disapproval of robust First Amendment protections for public employees.

It also exposed their unequal treatment of secular and religious speech (and of secular and religious acts). The school district’s performance evaluation of Coach Kennedy advised against rehiring him because he “failed to supervise student-athletes after the games.” But the school district allowed other staff to “forego supervising students after the game to do things like visit with friends and take personal phone calls.” The rules were only applied to Coach Kennedy - the only one whose speech/conduct was of a religious nature. For the liberal wing of the Supreme Court, it was acceptable for the religious conduct to be singled-out and prohibited.

This is consistent with Sotomayor’s overall judicial philosophy. In Roman Catholic Diocese of Brooklyn v. Cuomo (which I referenced a few paragraphs above discussing Gorsuch), Sotomayor supported New York having more restrictive COVID-19 pandemic rules on houses of worship than big box stores.

Be thankful that Sotomayor wasn’t writing for the majority.

I’ll conclude with a comparison of Coach Kennedy’s case to Sotomayor, Kagan, and Breyer’s defense of abortion rights in their dissent in Dobbs, which overruled Roe v. Wade and left the issue of abortion up to the states. The holding of Roe - “that the Constitution safeguards a woman’s right to decide for herself whether to bear a child” - was fiercely defended by the liberal wing of the Supreme Court. But that “right” to an abortion was a Court creation, not mentioned in the Constitution and not part of the rights protected under the Fourteenth Amendment. Yet here, when we have fundamental rights specified in the First Amendment, these same Justices see no issue with the State preventing the exercise of those rights.

It appears some “rights” are valued over others.