High School Coach Joe Kennedy was fired from his job at Bremerton (Washington) High School for praying at the 50-yard line immediately after each game. The coach engaged in this practice for nearly eight years (win or lose) until local officials determined it to be a threat to good order. Namely, they saw this as a violation of the Establishment Clause of the First Amendment.
The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.
If you are not familiar with this story, here are more of the particulars. The coach began this practice in 2008, taking a knee at the 50-yard line and initially praying alone for less than a minute. Over time, other players on his own team and eventually players from opposing teams voluntarily joined him after the game. The school, many years later, demanded he stop. In addition to defending the Establishment Clause, they expressed concern over the rights of students, particularly players who the school says may have felt compelled to participate or were discriminated against for not participating. The coach was offered a compromise (to pray away from public view). He declined this compromise and was then fired.
Coach Kennedy filed suit on the grounds his own religious freedom was infringed. The competing interest to the Establishment Clause is the Free Exercise Clause, the right for each of us to practice our religion without interference (this truly is an individual right defined by the First Amendment).
The Free Exercise Clause protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of a “public morals” or a “compelling” governmental interest. For instance, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.
So, these are the two competing interests, both clearly stated and not hard to understand, at least on the surface.
The Establishment Clause says we do not have a national religion as some countries do (or have had in the past) and we do not compel anyone to be part of any religious institution or take part in any rituals or other religious practice against their will. In addition, we do not discriminate against others who refuse to take part in a religious practice or join a religious institution. The Free Exercise Clause allows each to practice their faith freely (or to choose to practice not at all). Individual religious practice is limited by only very rare exceptions when it might actually harm society or other individuals. These are two fundamental, bed-rock principles of our nation, ones that made our country unique 250 years ago, but are far more commonly accepted around the world today.
The question for many is this: which one of these two clauses should prevail over the other, the coach’s right to exercise his religion freely or others right to not be compelled to participate? Can the coach be allowed to engage in this practice if it harms others?
For me and other like minded folks, the better question is: does the Establishment Clause even apply here? Unless the coach is forcing others to join him in prayer, the Free Exercise Clause must hold. If intimidation cannot be proven, this is simply the free exercise of religion among the participants. The Free Exercise Clause does not limit us to particular locations. It doesn’t say anywhere but public locations. For instance, I wouldn’t do it myself, but you have the right to stand on the street corner and tell passers by what you believe in and what they need to do be saved. It may be annoying and ineffective, but it is allowed. A coach is clearly in a position of authority, but unless he is abusing his authority, he too is allowed to express his faith at the school.
Coach Kennedy originally lost his case in the Ninth Circuit, but after seven years of further litigation, he eventually won an appeal at the US Supreme Court in 2022, a 6-3 decision, with the three most liberal justices dissenting.
Here is a bit more from CNN regarding the details:
Separation of Church and State
As the coach’s lawyer states, this should not have been a case of separation of Church and State. In fact, this concept regarding Church and State was never incorporated into the Constitution, not even as an amendment. The words were originally put forth by Thomas Jefferson as president in 1802, in a letter to a religious institution. The Supreme Court has often referenced these words in rulings and for many separation of Church and State is synonymous with the Establishment Clause. Nevertheless, this concept has never been officially codified.
The coach’s lawyer correctly points out this case is actually the State versus an individual: the school board vs Coach Kennedy. The coach did not act on behalf of the State; he did not attempt to further one religion over others. The coach is clearly not seeking to further a theocracy which will dictate its own morality to American citizens. There is no such theocracy. This claim folks are imposing religion and moral values upon an unwilling public is consistently raised by those against the free exercise of religion. We have an individual exercising his own faith, not a church ingratiating itself within the state, attempting to assume the power of the state. The individual is standing up for his own rights while the state actually opposes his actions. For the state to prevail, it must prove the coach went beyond his free exercise of religion and unduly used his authority to influence players. They were unable to do that, so instead they claimed a sinister, unstated intent: the coach is imposing his own religion on others.
During litigation, the school board only defended the Establishment Clause.
Rachel Laser, president of Americans United for Separation of Church and State, which represented the school board in the case, said the separation was “under complete attack” by the Supreme Court as it favors the free exercise clause at the expense of the establishment clause, thereby raising the specter of religious favoritism.
Ms. Laser’s statement can easily be turned around: we cannot deny an individual’s free exercise rights at the expense of the Establishment Clause, thereby raising the specter of denying religious freedom (as is still explicitly done around the world even today) . The coach’s rights, and the rights of millions of other religious Americans, is “under complete attack”.
As a Christian myself, living in am era where freedom and reality have been redefined, we see Christians as among the most discriminated in our country https://seek-the-truth.com/2021/08/20/what-is-freedom/. We are considered the prudes, the kill-joys, the purveyors of guilt and shame, the traditionalists holding back progress and modernity. Many do not like our points of view, so they seek to shut them down. We object to unbridled public sexuality and the murder of unborn children and are accused of attempting to establish a theocracy. From my perspective, cases such as this one prove the point. We applaud those fighting to retain the free exercise rights protected under the First Amendment.
“I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.” Cardinal Francis George, May 2010
In any case, we certainly ought to balance the two clauses which can sometimes be in conflict. When examining the individual circumstances of this case, how can one possibly determine the Establishment Clause is threatened? Who exactly was threatened by the coach’s action? Who was harmed and how? Where are the lawsuits against the coach for his unfair treatment of players? In addition, how can you avoid concluding the Free Exercise clause is threatened?
Writing for the liberal minority on Monday, Justice Sonia Sotomayor said the Constitution does not authorize public schools to embrace Kennedy’s conduct, and wrote that the majority’s opinion rejects “longstanding concerns” surrounding government endorsement of religion.
Justice Sotomayor implies the coach must obtain approval of the school or his actions are illegitimate. This is how religion is practiced in the USA? When was this written into the First Amendment? She goes on to emphasize the Establishment Clause, but only the Establishment Clause. What government institution endorsed the coach’s prayer or endorsed a particular religion? Clearly, this was his idea, and his idea alone.
The dissenting opinion turns the Establishment Clause on its head. The coach must seek approval from his employer to practice his religion while “on the clock”? No. The school should remain agnostic unless the coach is threatening or unduly influencing others. Were kids compelled to participate? Did the coach take away playing time for kids who did not? Did the coach look askance at kids who did not? None of this was established. The dissenting justices and the school board, say the case is about retaining the balance of Church and State (something which is not even a legal provision), at the expense of the Free Exercise clause (a bedrock principle of our Constitution).
Of course, liberal media and the other usual suspects lined up in support of the school board:
The court decided against government officials whose policies and actions were taken to avoid violating the constitution’s first amendment prohibition on government endorsement of religion, known as the “establishment clause”.
Robert P Jones, founder and chief executive of the Public Religion Research Institute thinktank in Washington, said: “What we’re seeing is a desperate power grab as the sun is setting on white Christian America. In the courts, instead of moving slowly and systematically, it’s a lurch.”
Praying on the 50-yard line for a minute while everyone else exits the stadium is a power grab? Isn’t this just a bit of an exaggeration?
Conservative columnist George Will, writing in the Washington Post, has it right.
Cue the alarms from those secularists who bring religious zeal to their crusade against the incipient theocracy they detect in every religious observance allowed in the public square.
Gorsuch argued that no reasonable observer would have concluded that the specific actions for which the school district disciplined the coach — brief, quiet and solitary prayers after three games — were the government speaking.
Dissenting, Justice Sonia Sotomayor, joined by justices Breyer and Kagan, noted, accurately, that “students face immense social pressure.” Sotomayor, however, simply asserted this: The fact that a majority of his players eventually joined what had been his solitary prayers showed “coercive pressure at work.” Oh? The school district said it had “no evidence that students have been directly coerced to pray” with the coach.
Our cranky nation, with its constant surplus of truculence, could benefit from a smidgen of Thomas Jefferson’s live-and-let-live spirit. He was at most a Unitarian (understood as the belief that there is at most one God). As president, however, two days after he wrote the letter endorsing a “wall of separation” between church and state, he attended, as he occasionally did, religious services in the House of Representatives. (Services were held every Sunday in some government buildings.) He was respecting beliefs he rejected.
In “Notes on the State of Virginia” (1785), Jefferson had written, “It does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” The court’s decision for the football coach should cause timorous adults, and the fragile young people they shape, to stop fueling today’s cancel culture and the demands for “safe spaces.” Mere exposure to another’s belief does them no injury.
The Establishment clause is not threatened here in the least in this instance. In the USA, it is under less threat today than it has ever been (participation in organized religion is steadily on the decline). On the other hand, the coach’s right to exercise his religion was clearly prevented and without good reason. As Christians move into the minority, free exercise will be more threatened. The claim is always religious theocrats are compelling the non-religious to go along, but this is an exceptionally poor example to highlight such a disturbing trend. If you cannot find a better example, maybe there is no threat after all.
Prayer after games was not a school program. It was not advertised by the school. The school knew for years and implicitly endorsed it. The school is guilty of establishing a state religion for the simple act of not shutting down a prayer of willing individuals? How is this related to establishing a religion? It is not. Is one religion favored over another? Clearly not. Coaches of other faiths were not prevented nor discouraged. That would be an actual problem, but others could have done the same had they desired. Their lack of trying does not implicate Coach Kennedy.
Imposing My Religion?
This threat from the State rings true to me because I continually hear claims I am imposing my religion on others. I offer my point of view which is certainly influenced by my religion, but expressing my opinion is not an imposition of my faith on others. I am simply exercising my free speech rights. In an exchange with a friend, I heard this same baseless fear of my imposing my religion on others:
Your definition of human life is based on your religious beliefs and not everyone has the same definition. Why do you feel it is necessary and moral to impose your religious beliefs on others?
Do I demand you or others make the sign of the cross? Do I demand you or others accept the same books of the bible as my faith does? Do I condemn non-Catholics who do not go to confession? Do I demand Wal-Mart keep the Sabbath? No. I do not impose these tenets of my faith on you or anyone else.
What about you? Do you believe that theft is wrong, for example? If I took your car home without permission should I be punished? Would your answer depend upon your belief in the commandment “thou shall not steal” or would it be for some other reason like we need common laws and beliefs to maintain a civil society?
That’s extreme and that isn’t where we are today, and I hope that isn’t a future goal.
You said I am imposing my religion on others. I am simply saying that is not correct. I believe in freedom of religion. I have never compelled anyone to follow my religion or any other. Persuade yes, but never impose. You made a charge. I dismissed it as ridiculous. You still have proven nothing on this point. Offering my view, even a moral one, is not tantamount to imposing my religion on others.
Demanding others follow religious rituals via legislation would be a clear violation of the Establishment Clause. Such laws wouldn’t last a moment in today’s anti- religious environment. The hue and cry over non-existent threats is so great, so what would happen if a credible threat was actually proposed? But more importantly, nobody is proposing such. This is a red herring opponents of religion (especially opponents of Christianity) continually surface.
Certainly, we can point to numerous historical examples of forced proselytization of others. Such have been imposed by virtually every religion at some point. We can even point to similar examples in countries today, but none doing so in the past or even today were bound by anything remotely resembling our First Amendment. Its principles are now part of our culture and a common standard.
Our founders were aware threats to religious liberties abound and sought to neutralize them. They experienced them firsthand. The First Amendment strikes a balance between expression of faith and imposition of religion upon others. Still, the Constitution is simply a written document that can be ignored, especially by progressives who do not feel bound by it; we must understand what it provides for us and support those principles when they are under threat. The proper balance is not always maintained, so when that balance is lost, as was done initially in Coach Kennedy’s case, we must speak and act boldly to protect our rights. Thank God for people of strong will like the coach.