Willie R. Tubbs, FISM News

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Monday, the Supreme Court heard oral arguments from attorneys representing former high school football coach Joe Kennedy and the Washington state school district that fired him for refusing to break his practice of kneeling for prayer at the 50-yard line after games.

In a case that attracted much attention from both Christian and anti-Christian circles, the official transcript indicates the Court was largely sympathetic to Kennedy, who was fired under accusations of using his job as a government employee to endorse a religious viewpoint.

“When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own,” Paul D. Clement, Kennedy’s attorney, said in his opening remarks [which begin on page 3 of the linked document]. “That private religious expression was doubly protected by the Free Exercise and Free Speech Clauses.

“When the School District fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it … ignored a veritable wall of this Court’s precedents that make clear that a school does not endorse private religious speech just because it fails to censure it.”

Richard B. Katskee, representing the Bremerton School District, argued that Kennedy’s prayers were unlawful as they were “audible” and done in such a way that could, potentially, make it impossible for the school to ensure public safety.

Kennedy’s prayers, at least in the eyes of the defendants, were so popular as to be likely to cause a stampede, which was the word Katskee used to characterize a moment after one game in which members of the fanbase took to the field in order to pray with Kennedy.

“No one doubts that public school employees can have quiet prayers by themselves at work even if students can see,” Kastkee said in his opening remarks [which begin on page 56 of the above-linked document]. “If that were the issue, there wouldn’t be a case here because the District allowed that. But that wasn’t good enough for Mr. Kennedy. He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people.”

All of the Court’s justices expressed concerns over the district’s assertion that Kennedy was forcing, either directly or by implication, his student-athletes to participate in prayers, which would be a violation of the Establishment Clause of the U.S. Constitution (separation of church and state).

For all the furor from the defense on the location and audibility of the prayer, the real issue is whether Kennedy forced students to participate in prayers in his capacity as a coach, or used his position to proselytize to an unwilling audience.

It is indisputable that the coach, at times, led prayers with his own and other teams at midfield, but at issue is how and why the others came to be there.

There is a possibility the Court splits the difference in the case finding that in some instances, Kennedy overstepped his bounds and in others engaged in free speech.

One moment in particular hinted at where the justices might be leaning.

“A football game ends,” Justice Samuel Alito hypothesized [page 67]. “The coach is not required at that point to go to the locker room with his students. It’s not part of his duties at that time. He is allowed to remain on the field for a period of time. He is allowed to walk onto the field. He does that by himself. He goes to the 50-yard line. He kneels down and he prays. He doesn’t invite anybody to go with him, but he also doesn’t tell people who are also permitted on the field to go away. And all of this is visible to people in the stands … can he be fired for engaging in those activities?”

 Katskee responded that this situation would not constitute a fireable offence. However, at numerous other parts of the hearing, Katskee attempted to drive home the point that Kennedy had not always behaved in the manner Alito described.

 “[Kennedy] gave special permission to two legislators and some other people to come onto the field to have a prayer circle with him on the 50-yard line,” Katskee said, later adding, “And then, as part of the arrangement, was to turn around and have one of those state legislators address the team, which he did.”

 The case featured several moments during which the court’s conservative justices gave examples of political speech that would, in theory, have been permissible according to the school district.

 Justice Clarence Thomas asked [on page 58], “if the coach, instead of taking a knee for prayer, took a knee during the National Anthem because of moral opposition to racism … how would your school district respond?”

 Katskee replied that the district would view this as governmental speech if “the coach goes to the center of the field in front of everyone during the National Anthem.”

Justice Brett Kavanaugh questioned [page 77] if a school district could “fire the coach for giving the sign of the cross on the field?”

Kavanaugh bristled when Katskee suggested the action would be permissible “if the coach is doing it while not making himself the center of attention at the center of the field.”

“I don’t know how we could write an opinion that would draw a line based on not making yourself the center of attention as the head coach of a game,” Kavanaugh said.

The public nature of Kennedy’s prayers were of chief concern to the anti-Christian groups that have supported the school district and the Court’s liberal justices.

“He’s the one who chose to publicize his prayer by doing it on the 50-yard line,” Justice Sonia Sotomayor said [page 33]. “He didn’t do it on the side. He didn’t just bow his head. He got on a knee at the very center of the field.”

The Court is not expected to issue a ruling in the case until June.