The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, the Supreme Court granted cert in Kennedy v. Bremerton School District, the case of the high school football coach who wants to pray publicly on the field after games. The school district told him not to do so, at least in the presence of students, and, when he continued, refused to renew his contract. The coach argues that the school district has violated his First Amendment free speech and free exercise rights.
This is the second time Coach Kennedy has been to the Court. He first sought cert in 2019, at the preliminary injunction stage, but the Court declined to grant his petition at that time. In a statement for himself and three other justices, Justice Alito suggested that the school district might have violated Kennedy's First Amendment rights, but that the facts were not clear. Perhaps the school district didn't want Kennedy to pray on duty because praying distracted him from supervising team players? The district has cleared that up now, though. It maintains that it did not allow Kennedy to pray for the "sole reason" that allowing him to do so would amount to an official endorsement of religion in violation of the Establishment Clause.
A Ninth Circuit panel agreed with the school district and ruled against Kennedy, although several judges tried, unsuccessfully, to have the case reheard en banc. It seems clear that the Court granted cert last week in order to reverse. Although the cert petition makes the obligatory argument about a circuit split, it spends most of its time arguing that the panel opinion was both "egregiously wrong" and "exceptionally important." It's hard to imagine that the justices who voted to grant cert, including, presumably, those who joined Justice Alito's statement three years ago, would have taken the case unless they agreed. And they likely expect to be joined by at least one of their colleagues.
To my mind, the most interesting arguments in the case involve the district's claim that allowing Kennedy to pray publicly on the field would violate the Establishment Clause. The notion that allowing Kennedy to pray would amount to an official endorsement of religion, which persuaded the panel, seems implausible to me. The endorsement test asks whether an objective observer, familiar with the context, would think that government action signals favor or support for religion. The panel concluded that "an objective observer, familiar with the history of Kennedy's on-field religious activity, coupled with his pugilistic efforts to generate publicity in order to gain approval of those on-field religious activities," would think that the school district had ultimately come to support Kennedy's conduct.
But that seems wrong. Surely, someone who knew the whole story would understand precisely that the school district greatly disapproved of Kennedy's conduct and that the last thing it wanted was for Kennedy to keep praying in public. An informed observer would understand that, at most, the district was allowing Kennedy to pray publicly only because of the lawsuit he had filed against it.
Although the endorsement argument is weak—and that's assuming the justices apply the endorsement test in the first place, which is never entirely clear ahead of time—the district does have another argument that strikes me as stronger. In some cases, the Court has indicated that the government may violate the Establishment Clause by placing public school students in a situation in which they feel psychological coercion. For example, the Court has held that students may feel forced, from peer pressure, to stand respectfully for a prayer at an official graduation ceremony, or for an officially sponsored prayer before a school football game. The district could argue here that allowing Kennedy to pray publicly, even if that would not amount to an official endorsement of religion, would nonetheless create a situation that places pressure on team members to participate.
Kennedy would presumably respond that he is not praying in his capacity as a school employee, that he does not ask anyone to join him, that team members are free to leave the field without praying—in short, that no one is placing pressure on anyone. But that is perhaps a bit formalistic. A team member could easily feel that, even if the school district doesn't approve what Kennedy is doing and doesn't require anyone to stick around for the prayer, and even if Kennedy does not ask anyone to join him, the coach will know who stays and who leaves, as will the other players. For a kid in high school, that could easily create pressure to join in. Few kids will want to risk being an outcast on the team or benched by the coach. I'm not saying this will be a winning argument, but it does strike me as a valid point, under the Court's precedents.
The Court will hear the case later this term. For more thoughts on the case, my colleague, Marc DeGirolami, and I have recorded a podcast episode, which you can find here.