WASHINGTON – The Supreme Court’s conservative majority seemed to be searching on Monday for a narrow way to rule in favor of a former high school football coach who lost his job for praying at the 50-yard line after his team’s games.
The task was complicated by factual disputes over the conduct of the coach, Joseph A. Kennedy, and the shifting rationales offered by the school district in Bremerton, Wash., For disciplining him.
According to Paul D. Clement, one of Mr. Kennedy’s lawyers, his client had sought to offer only a brief, silent and solitary prayer of thanks after his team’s games. Earlier episodes, including prayers in the locker room, were not relevant, Mr. Clement said.
Richard B. Katskee, a lawyer for the Bremerton School District, said the school was entitled to require that its employees refrain from public prayer if students were likely to feel coerced into participating.
He was challenged by some of the more conservative justices, who said the district had initially argued that it could stop Mr. Kennedy from praying on a different ground: that the school would be perceived to be endorsing religion by allowing it. They suggested that the fear of coercion was a rationalization after the fact.
Justices across the ideological spectrum peppered the lawyers with hypothetical questions. Chief Justice John G. Roberts Jr. asked whether Mr. Kennedy could have prayed aloud while standing with his arms outstretched. Justice Samuel A. Alito Jr. asked whether Mr. Kennedy would have been disciplined for protesting the invasion of Ukraine, climate change or racial injustice.
The tenor of the questioning from the court’s conservative members was unsurprising, as four of them had issued a statement questioning a preliminary ruling in favor of officials from the US Court of Appeals for the Ninth Circuit, in San Francisco.
“The Ninth Circuit’s understanding of the free speech rights of public-school teachers is troubling and may justify review in the future,” Justice Alito wrote at the time. He was joined by Justices Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
“What is perhaps most troubling about the Ninth Circuit’s opinion,” Justice Alito added, “is a language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith – even when the coach is plainly not on duty. ”
After further proceedings, a unanimous three-judge panel of the Ninth Circuit again ruled against Mr. Kennedy, saying that school officials were entitled to forbid his public prayers to avoid a potential violation of the First Amendment’s prohibition of government establishment of religion.
The full Ninth Circuit declined to rehear the case over the objections of 11 judges. The two sides sharply disagreed about how to characterize Mr. Kennedy’s actions.
Judge Milan D. Smith Jr., author of the panel opinion, wrote that “Kennedy made it his mission to intertwine religion with football.”
“He led the team in prayer in the locker room before each game, and some players began to join him for his postgame prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while the fans remained in the stands, ”Judge Smith wrote.
In response, Judge Diarmuid F. O’Scannlain said the panel opinion had things backward. “It is axisomatic that teachers do not ‘shed’ their First Amendment protections ‘at the schoolhouse gate,'” he wrote, quoting a 1969 Supreme Court decision. “Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public-school teacher or coach, while on the clock and in the earshot of others, is subject to plenary control by the government.”
On Monday, Justice Stephen G. Breyer, said the case, Kennedy v. Bremerton School District, No. 21-418, presented unusual challenges. “This may be a case of facts and not really much about the law,” he said.