On April 25, 2022, the U.S. Supreme Court heard arguments involving a part-time high school football coach who lost his contract because he would pray at the 50-yard line after games. Inspired by the 2006 movie, Facing the Giants, Joseph Kennedy would “face the scoreboard, take a knee, thank God, and walk off.” Then some players started to join him. The school district told him to stop and when he kept doing it, they terminated his contract.
Kennedy v. Bremerton School Dist. first went to the Supreme Court in 2018, but the Court returned the matter to the 9th Circuit to resolve whether the case was about Kennedy’s free speech rights or the school district’s claim that allowing the prayers would infringe on the Establishment Clause. The case bounced around for a couple more years. The 9th Circuit decided that it looked like Kennedy was acting as an employee during a time when the First Amendment did not protect his speech and that a reasonable person might think the school was endorsing religion in violation of the Establishment Clause.
So this now becomes an issue of what freedom of speech teachers have at school. Since it was on school time, it would be government speech. But this speech was after a game when coaches could speak freely to family and friends, and the district was just upset that he wanted to talk to God instead. Of course, hugging one’s spouse after a game would probably not be questioned but lifting one’s hands to God invites a higher level of scrutiny.
And then there’s the fact that he left Washington state and moved to Florida two years ago, so the district says it’s a “moot” issue since part of what he’s asking for is reinstatement, and he’s not likely to move back to Washington. But Kennedy says that he’ll go right back to his job at Bremerton High School if he wins. The Court should throw out the mootness argument. People who are discriminated against need to find alternate work, even if it requires them to move. That Kennedy was able to “mitigate damages” by obtaining employment should not invalidate his claim. Plaintiffs in wrongful termination cases are usually required to seek other jobs –they cannot sit back accruing lost wages and interest. In contrast, their cases go through the system and then expect a massive payout from the defendant employer when it’s over. This means they need to diligently seek comparable work in the same field and document these efforts.
It isn’t uncommon for people in sports to have little rituals, like baptizing each other with coolers of ice or doing something else in the OCD vein to appease the spirits of the football field, and we’re not going to judge Kennedy’s sports ritual. It seems like he was doing it on his own and that he wasn’t coercing other students to do it. It was also apparently swift. It wasn’t a regular church ritual, like participating in the Eucharist on the 50-yard line. we can expect a very narrowly worded ruling when it comes out this summer that preserves the free speech rights of teachers but does not give carte blanche authority for teachers to hold church services on the field.
Most likely, the Supreme Court will find that the coach’s interest in free speech and free exercise of religion outweighs the joinder of church and state that the Establishment Clause was enacted to prevent.
