Three fundamental rights — the right to worship, the right to free speech, and the right of public school students not have religion forced on them — are at the center of a case currently before the United States Supreme Court that grew out of a high school football coach’s simple desire to give thanks to God following his team’s games.
Joe Kennedy was an assistant coach with the Bremerton High School football team in Bremerton, Washington. Kennedy says his practice of kneeling by himself on the 50-yard line at the end of each game and offering a brief prayer of thanks eventually grabbed the attention of players, who asked if they could join him.
“I didn’t want to cause any problems with the school district and the school district didn’t want to have any problems with me,” said Kennedy, whose post-game prayers next caught the attention of school administrators.
That’s when, in 2015, the Bremerton School District warned Kennedy that, in order not to violent the Constitution’s establishment clause, he should no longer pray on the 50-yard line, in view of his players and the public at large.
Kennedy said at first, he went along with the district’s wishes, praying away from the field in private, but then decided that was a violation of his right to expression.
“So, I went back to what I was originally doing, praying by myself on the 50 and I thought that would be the end of it,” Kennedy recalled in an interview Tuesday. “They just took it as a step too far and they said, ‘Well, people can still see you’ and they tried to remove my First Amendment rights. I understand trying to protect kids, but you can’t strip everybody’s away by doing that.”
During oral arguments in Kennedy v. Bremerton Monday, the 6-3 conservative majority court seemed generally sympathetic to the coach’s concerns.
"We believe, based on hearing the arguments yesterday, that we are pretty confident about the outcome of this case," said Spencer Fane LLP attorney A.J. Ferate, "it’s just a matter of what breadth we’re going to receive as a result of the opinion."
Ferate lives in Oklahoma City but grew up in Bremerton and knows Kennedy well. He and Kennedy's legal team argue that even public school teachers and coaches retain some right to free speech in school, and in Kennedy's case, his brief prayers were not part of his official duties and thus did not constitute government speech.
"There is nothing in the Constitution that says that adults need to act like atheists when they’re around kids," said Ferate in an interview Tuesday, "and that’s really what the school district is asking for in this case."
But the school district paints a different picture as to how then-Coach Kennedy was handling the situation, saying he encouraged the attention that the issue drew and also encouraged player participation in the post-game prayers. District officials also say there were instances where players said they felt pressured to participate.
"The school did just the right thing to respect and protect the rights of the kids and their parents," said Richard Katskee, the attorney who argues on the district's behalf Monday. "That should be the bottom line for the Court."
Members of the clergy also came out in support of the school district, saying that as much as they believe in and encourage prayer, as well as Coach Kennedy’s right to practice his faith, the leaders of the district did the right thing.
“When a person in leadership says and expresses their faith by themselves, that's beautiful, wonderful, i encourage that,” said Rev. Douglas Avilesbernal, Executive Minister of the Evergreen Baptist Association, “but as soon as others join you, that is no longer a private expression. and if I'm going say I'm going to pray as a Christian in a position of leadership, in the space where I exercise my leadership, then in very tangible ways, I’m expressing support for a specific type of faith."
Based on what he heard in the courtroom Monday, Kennedy says he feels good about the status of the case: "For the first time I feel like somebody actually listened to it, so I’m very optimistic and feel really good that at least somebody heard it."
But Kennedy says he also can't help but think about what he believes will be terribly negative consequences if the Court rules for the school district.
"Because right now I believe everybody in America has the right to freedom of expression and the freedom of speech, that’s what I fought for in the Marine Corps for 20 years," said Kennedy. "I always assumed everybody had that, but the way the lower courts ruled, that’s in jeopardy...and so right now if that stands, that’s the part that weighs on my heart."