TWH – As we reported yesterday, the Supreme Court handed down their ruling in the case Kennedy v. Bremerton School District yesterday. The case focused on a football coach who in his lawsuit claimed the school district that employed him violated his 1st amendment rights when they forbid him from going out to the 50-yard line after the game to publicly pray while students and attendees were still present.
The court ruled 6-3 with all the conservatives justices siding with Kennedy, and the more justices dissenting in favor of Bremerton.
There is concern within the Pagan and other religious communities that the 6-3 ruling in favor of Kennedy by the Supreme Court yesterday, will result in those who follow minority religions or beliefs being subjected to, forced, or pressured into publicly engaging in prayers that do not reflect their beliefs.
The Roberts Court, April 23, 2021. Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor. Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States. [Note: Judge Ketanji Brown Jackson will join the Court later this year with Justice Breyer’s retirement. Judge Jackson was confirmed by the United States Senate on June 14, 2021, by a vote of 53-44]
Students involved in the case had made statements that they felt coerced to participate in the prayers, and the case had been dubbed “Pray to Play” in the media.
The previous precedent set by the Supreme Court in the 2005 case, Garcetti v. Ceballos held that “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
The Supreme Court by deciding in Kennedy’s favor up ends that previous precedent and overturned the Ninth Circuit Court of Appeal’s ruling which was in Bremerton’s favor.
The Court’s decision written by Justice Gorsuch stated, incorrectly, “That Mr. Kennedy has discharged his burdens is effectively undisputed. No one questions that he seeks to engage in a sincerely motivated religious exercise. The exercise in question involves, as Mr. Kennedy has put it, giving ‘thanks through prayer’ briefly and by himself ‘on the playing field’ at the conclusion of each game he coaches. Mr. Kennedy has indicated repeatedly that he is willing to ‘wai[t] until the game is over and the players
have left the field’ to ‘wal[k] to mid-field to say [his] short, private, personal prayer.'”
There was ample news coverage of the fact that coach Kennedy did not follow the school district’s instruction and continued to hold his prayers at the 50-yard line while students and attendees were present. He even went on a media campaign stating that his rights were being violated which resulted in utter chaos on the field after a game where several bystanders were injured in the crowd’s rush to support the coach.
Conservatives applauded the Court’s decision among them, Senator Ted Cruz said “I am proud to be part of a group of 11 Senators and 14 Representatives that filed an amicus brief with the Court that argued in defense of Coach Kennedy’s free exercise of his faith.” He added, “I’m thankful the Supreme Court fully enforced the First Amendment—in a major victory for religious liberty—and upheld our God-given right to practice our faith. ”
Senator Joni Ernst, an Iowa Republican, wrote: “Another win for religious liberty and personal freedom!”
But how the decision applies to other religious practices and forms of prayer is not yet clear. The decision may not be so good for minority faiths including the various forms of Paganism, especially when it comes to implementing the privileges implied by the Supreme Court decision. Circle Sanctuary’s Lady Liberty League released a comment “Libertas, Goddess of Freedom, Be with Us, Guide Us, Help Us uphold American Democracy, Religious Freedom for All, & Separation of Church & State, now & in times to come! So Mote It Be!”
Retired attorney, Hecate Demetersdatter told TWH, “The justices appear to have made up facts that they think sound better for them. The case seriously erodes the wall between church and state and is wrongly decided.”
She continued with, “I’m waiting for the uproar when a Wiccan priestess leads her class in The Charge of the Goddess. If I were still practicing, I’d take that case, pro bono.”
Justice Sotomayor in her dissent included a picture of coach Kennedy on the 50-yard line doing anything but exhibiting a silent and quiet prayer.
Image via Justice Sotomayor’s dissent
In her dissent, Justice Sotomayor pointed to many of the same legal precedents upheld by the Ninth Circuit Court of Appeals and summed up with:
“Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent.”
The details of the case as TWH reported back in April:
According to filings in the case, coach Kennedy frequently led prayers with his players before and after games at Bremerton High School in Washington state. What started as Kennedy going alone to the 50-yard line after games to offer silent prayers in thanksgivings, grew with some of the players (from both teams) joining him and then expanded into him offering motivational speeches.
When the school board learned this was happening, they attempted to resolve the issue by offering Kennedy other options for expressing his faith that did not involve using a public space, and would not potentially violate the school board’s policy on “Religious-Related Activities and Practices.”
According to court records, a letter sent by the school board in September of 2015 informed Kennedy that he was “free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity, and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.”
While coach Kennedy initially complied with the school board’s request, he eventually retained attorneys to examine whether his 1st Amendment constitutional right was being violated.
A month later, Kennedy not only opted to continue his mid-field prayers after the game, but also had his attorneys send a letter to the Bremerton School District demanding they rescind the directives outlined in their September letter, but also announced his intent to pray at mid-field after the October 16 game.
His announcement to directly challenge the School District’s directives was highly publicized and ultimately resulted in a virtual stampede of those in support of Kennedy jumping the fence and knocking down other students and parents in attendance at the game. This happened despite the School District’s attempts to secure the field and notify the public and those in attendance that they were prohibited on the field after the game. The Bremerton School District sent Kennedy another letter stating his conduct violated policy and highlighted the other options available to him – undertaking his mid-field prayer after the stadium was empty, or holding his prayer elsewhere on the grounds in private.
Kennedy’s response was to reach out to the media and claim the only possible solution he would accept was for him to be allowed to conduct his mid-field prayers after the game.
He then repeated his mid-field prayer after games, on October 23 and 26, which resulted in the school district placing Kennedy on paid administrative leave, citing his alleged failure “to follow district policy regarding religious expression” and his failure “to supervise student-athletes after games.” Ultimately Kennedy did not reapply for his position once his contract expired, so the school had no cause to consider or renew his contract.
Bremerton School District issued a statement yesterday after the ruling was handed down:
“The Bremerton School District’s priorities have always been protecting the rights and safety of students while ensuring that they receive an exemplary education. That’s why, when we learned that a district employee was leading students in prayer, we followed the law and acted to protect the religious freedom of all students and their families. In light of the court’s decision, we will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff. We look forward to moving past the distraction of this 7-year legal battle so that our school community can focus on what matters most: providing our children the best education possible.”
Daniel Mach, director of the American Civil Liberties Union Program on Freedom of Religion and Belief, said in a statement, “This decision is deeply disappointing and undermines the religious liberty of public school students. As the Supreme Court recognized over 60 years ago, it’s inherently coercive for school officials to pray with students while on duty. Today’s ruling ignores that basic principle and tramples the religious freedom of students who may not share the preferred faith of their coaches and teachers.”
Taryn Darling, senior staff attorney, ACLU of Washington, said “The freedom to hold beliefs that differ from those with authority has been a founding principle of our country. It is disappointing that today’s decision erodes protections for public school students to learn and grow free of coercion. Kitsap County is a religiously diverse community and students reported they felt coerced to pray. One player explained he participated against his own beliefs for the fear of losing playing time if he declined. This decision strains the separation of church and state — a bedrock principle of our democracy – and potentially harms our youth.”
The Bremerton School District was represented by Americans United for Separation of Church and State (AU).
Rachel Laser, President and CEO of AU, issued the following statement after the ruling:
“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom. It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish. As that line has blurred, public education, reproductive rights, civil rights and more have come under attack.
“This decision represents the greatest loss of religious freedom in our country in generations. This court focused only on the demands of far-right Christian extremists, robbing everyone else of their religious freedom. It ignored the religious freedom of students and families.
“As the network of religious extremists and their political allies behind this case celebrate victory, we can expect them to try to expand this dangerous precedent – further undermining everyone’s right to live as ourselves and believe as we choose. Americans who value freedom and equality – especially for public school students – must rededicate themselves to reestablishing the separation of church and state across the United States.”
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