Pray at the 50 meter line

Posted: 02/04/2022 16:01:33 Modified: 04/02/2022 16:00:06 A Christian public high school football coach insisted on leading pra...

Posted: 02/04/2022 16:01:33

Modified: 04/02/2022 16:00:06

A Christian public high school football coach insisted on leading prayers with his players at the 50-yard line immediately after the game. The school district told him to quit and when he didn’t, they fired him. This dispute now rests before the Supreme Court.

The school district of Bremerton, Washington, recognized that a coach can have a profound influence on high school students. He also appreciated that when the coach publicly and prominently leads prayers with his team on the field of play at a sporting event, the prayers appear to be sponsored by the school.

The district rejected both the idea and the appearance of a prayer system to play. He held that the Establishment Clause of the First Amendment prohibited the coach, Joseph Kennedy, from convening and leading such prayers. The Establishment Clause prevents a government entity or its representative from endorsing or promoting a particular faith or religion. The coach-led prayer service embedded in the football game experience was off limits. But significant issues remained to be addressed.

The First Amendment’s guarantee of religious freedom includes not only the Establishment Clause, but also the Free Exercise Clause, which prohibits government interference in an individual’s religious observances. Coach Kennedy ignored the Establishment Clause and invoked the Free Exercise Clause. He claimed that the school system’s treatment of him constituted an unconstitutional blanket ban on “demonstrative religious activities.”

During the litigation — he lost in federal district court and also in the court of appeals — Kennedy also relied on another argument entirely different from the First Amendment. Prayer, he rightly argues, is a form of speech and expression, and religious speech enjoys as much protection as secular (equally accurate) speech. From these legal truths, he argues that when the government, here the school, interfered with his prayers, it violated not only his right to free exercise but also his right to free speech.

This assertion relies heavily on Tinker v. Des Moines Independent School District, the 1969 case in which students claimed the First Amendment right to wear black armbands in school to protest the Vietnam War. The Supreme Court decision, which the students won, includes these words: “First Amendment rights…are available to teachers and students. Neither the students nor the teachers “have waived their constitutional rights to free speech or expression at the school gate”. The argument of the coach’s freedom of expression is therefore not frivolous.

But it’s wrong. Or, more accurately, based on the most relevant precedent, it is wrong. In 2000, the Supreme Court decided in Santa Fe Independent School District v. Doe that student-led prayer over loudspeakers before a high school football game violated the Establishment Clause. There, the Court clarified that while teachers and students may pray privately in school, “constitutionally protected religious freedom is restricted when the state affirmatively sponsors the particular religious practice of prayer.”

Given this precedent, if the Supreme Court accurately describes Kennedy’s prayer service as part of the school-sponsored football game experiment, the school system prevails. However, if the Court calls his prayers non-public, non-coercive and non-disruptive, Kennedy comes out on top. The same would be true if the Court qualified his prayers as taking place outside his employment.

For Kennedy, reconfiguring the facts is a smart strategy. Turning one’s public prayer into private expression wouldn’t exactly be water to wine, but it’s pretty close. Here are some of his alternate facts:

Even though his job description specifically included acting as a mentor and role model, his actions on the field immediately after time expired were not intended to affect the students on the field or the fans in the stands.

Even though it was his coaching position that gave him access to the midfield with his students and he broadcast these prayer services widely, he was engaged in personal prayer intended only for himself. The students were free to pass on their participation and they became members of his prayer circle voluntarily, as they are entitled to.

Ignore evidence that students feel pressured. If his players joined him, it was their business, not his. He simply spoke – that is, prayed – as a private citizen. etc

Some judges who would be expected to support the coach have, in other cases, ruled against public employees who were fired for speaking out at work. It’s embarrassing but hardly insurmountable. Supreme Court justices can always find a way to circumvent precedent, ignore or minimize inconvenient facts, or change the law. After all, once the Supreme Court has rendered a decision, there is no further review.

Some members of this Court seem predisposed to rule in favor of a Christian litigant (the first sentence of Coach’s argument in the Supreme Court is “Joseph Kennedy is a Christian”) who claims a restriction of his religious freedom. But maybe, just maybe, two of the six so-called conservative justices won’t succumb to this latest temptation.

Not likely. Yet a majority could craft a decision that protects the important free speech rights of public employees while maintaining the wall of separation between church and state. For this, let us pray.

Bill Newman, a Northampton-based solicitor and radio show host, writes a monthly column.

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Newsrust - US Top News: Pray at the 50 meter line
Pray at the 50 meter line
Newsrust - US Top News
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