- The Washington Times - Monday, June 27, 2022

The Supreme Court ruled Monday in favor of a public high school football coach who was fired after he prayed at the 50-yard line immediately after games, saying the government can’t punish someone for what a majority of justices held was personal, private religious expression.

The 6-3 ruling may put the final nail in the “Lemon” test, a decades-old precedent that offered a strict, albeit confusing, interpretation of the First Amendment’s balance between free exercise of faith and government entanglement with religion.

Justice Neil M. Gorsuch said Joseph Kennedy, who coached at a school in Bremerton, Washington, proved his postgame prayer was private and no students were compelled to join him — indeed, on the three occasions that led to his firing, none did.

The school district still ousted him. It said Mr. Kennedy’s role as an employee and the public setting drifted too far into state sponsorship of religion, making some students and parents uncomfortable.

Justice Gorsuch said that wasn’t a good enough reason to trump Mr. Kennedy’s First Amendment rights.

“The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” he wrote for the majority.

Justice Gorsuch was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Clarence Thomas, Brett M. Kavanaugh and Amy Coney Barrett.

Justice Sonia Sotomayor, writing in a dissent joined by fellow liberal Justices Stephen G. Breyer and Justice Elena Kagan, argued that the coach invited players to pray with him, that many of his prayers right after the game attracted significant crowds and that his conduct was neither personal nor silent, but rather an “official-led prayer.”

She said the coach was fired after a back-and-forth with the school district over Mr. Kennedy’s behavior, which initially involved inviting student-athletes to join him, and the school was justified in seeing the coach’s actions as a “severe disruption” at events.

“This decision does a disservice to schools and the young citizens they serve, as well as to our nation’s longstanding commitment to the separation of church and state,” Justice Sotomayor wrote.

She argued that the court’s decision effectively overrules Lemon v. Kurtzman, a 1971 case that set out a complicated test to determine whether and when the government was unlawfully endorsing or encouraging a particular faith or religion. The Lemon test, as it became known, said a government’s action must have a nonreligious purpose and its effect must not promote or inhibit religion, nor constitute “excessive government engagement with religion.”

Justice Gorsuch, in the majority opinion, said the high court “long ago abandoned Lemon and its endorsement test offshoot” because of confusion and inconsistency.

“The court has explained that these tests ‘invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators,” he wrote. 

A test of principles

Liberal advocacy groups said the ruling undercut the principle of separation of church and state, which doesn’t appear in the Constitution but has been used as a shorthand for the way courts view the balance between the First Amendment’s two religion clauses.

Ben Jealous, president of People for the American Way, blamed “a Supreme Court dominated by ultraconservative partisans, who act as though their faith tradition should take precedence over all others in public life.”

“This ruling ignores the rights of students who feel pressured to take part in a ritual that is not their own. It puts our country on a dangerous path toward further blurring of the lines between church and state, with all of our rights at risk as a result,” he said.

Republican lawmakers said the ruling stood up for one of America’s founding principles: the right to religious freedom.

Sen. Ben Sasse, Nebraska Republican, suggested the outcome was a no-brainer.

“This case is super straightforward: The First Amendment prevents the government from suppressing personal religious expression. That’s it — that was the case,” he said. “The school district’s behavior in this matter was simple, straightforward bigotry.”

Mr. Kennedy said he made a vow to God to pray for his students after each football game, starting in 2008.

He initially prayed alone, but he said some students took notice and asked whether they could join. He began to deliver motivational speeches with prayer, though he said he never coerced anyone to participate. In 2015, his superintendent told him to stop the practice, saying he was violating the district’s religious activities policy.

After the admonishment, Mr. Kennedy began to conduct short solo prayers at the end of games while the players were supposed to be doing something else. The school said that still ran over the line, and Mr. Kennedy was suspended.

Mr. Kennedy, speaking to Fox News on Monday, signaled he wasn’t sure what comes next for him, but he celebrated the legal win. He moved to Florida after he was fired but has said in the past that he would return to Bremerton, a town near Seattle, should he win his case.

“Thank God and thank everybody that supported me, and I found out that I’m not insane. It’s absolutely true of all the facts of the case, and it just feels good to know that the First Amendment is alive and well,” he said.

His lawsuit asked that he be reinstated as a coach, though Richard B. Katskee, a lawyer at Americans United for Separation of Church and State, who argued the case for the Bremerton School District, said he doubted Mr. Kennedy is still interested in coaching in Washington.

“The district is assessing the decision and exactly what it means,” he said.

Rachel Laser, president of Americans United, said the case opens worrying new ground.

“Here the majority is ignoring the power this coach has over his students when he prays,” she said.

Justice Gorsuch wondered what would have happened had the line been drawn the other way.

He said barring personal private prayer or religious expression could allow schools to fire teachers for saying grace over their lunch or wearing a yarmulke to school.

“Under the district’s rule, a school would be required to do so,” he said.

The case is Kennedy v. Bremerton School District.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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