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In “Private Personal Prayer” Ruling, SCOTUS Bias on Full Display

June 29, 2022

On June 27, 2022, the Supreme Court (SCOTUS) issued a decision in favor of former Washington State high school football coach, Joseph Kennedy, who was terminated, as the 6-3 SCOTUS majority puts it, “after he knelt at midfield after games to offer a quiet personal prayer.”

This is where the lie begins– right out of the SCOTUS-supermajority starting gate– which makes me wonder if the SCOTUS conservative supermajority decided the outcome of this case and then tried to work backwards through the facts– selecting some, shaping some, and omitting some– in order to create a narrative in support of its creation, “quiet praying” Kennedy.

On its face, the SCOTUS supermajority’s version of events leads one to believe that once the district discovered that Kennedy was praying and offering a sort of catechism with his football players in the locker room before games as well as leading a prayer midfield immediately following games, again surrounded by his players, Kennedy stopped praying all together, then hired a lawyer and decided he needed to pray alone on the 50-yard line following games, once his players left the field. Aside from what SCOTUS majority paints as students from the opposing team just coming up to pray with him of their own volition, Kennedy complied with praying alone, yet in 2015, the district recommended that his contract not be renewed, that the district was singling Kennedy out for his “private, personal” prayers.

The SCOTUS majority does not mention Kennedy’s active role in a publicity campaign in which he announced his plans to pray midfield following a game; that he did so immediately after a game, while students were still on the field; that he invited the coach and players from the opposing team to join him. Instead, the SCOTUS supermajority errantly and conveniently disposes of the greater course of events surrounding the Kennedy debacle.

In the SCOTUS dissent, Justice Sotomayor offers details conveniently and narrowly omitted from the supermajority decision. (More to come on this.) However, those familiar with the history of Kennedy’s case in the courts need only read excerpts from the Kennedy’s case with the Ninth Circuit Court of Appeals. In July 2021, the Ninth Circuit decided not to rehear the case en banc (that is, all judges hearing the case as opposed to one or a few; usually happens when a case is deemed particularly significant).

In the case of the Ninth Circuit deciding not to hear the case en banc, not all judges agreed. However, what comes to light are details that makes a reader of the SCOTUS supermajority question why such details were omitted from their opinion, rendering the resulting discourse highly– and arguably, intentionally– misleading.

If Kennedy is within his rights, why omit key information about his behavior, thereby raising doubts about the motives of the SCOTUS supermajority to find in favor of the praying plaintiff simply because they are biased towards a praying plaintiff?

Good question.

Below is the Kennedy backstory as detailed by Ninth Circuit Judge Milan Smith (beginning at page 9), who calls Appellant Kennedy’s supposed silent, private prayer narrative “false.” Smith begins by calling out a colleague on the bench, Judge O’Scannlain, for being taken in by it:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.

Although I discuss the events in greater detail below, the reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers. In fact, the record shows clearly that Kennedy initially offered silent, private prayers while on the job from the time he began working at BHS, but added an increasingly public and audible element to his prayers over the next approximately seven years before the Bremerton School District (BSD) leadership became aware that he had invited the players and a coach from another school to join him and his players in prayer at the fifty-yard line after the conclusion of a football game. He was disciplined only after BSD tried in vain to reach an accommodation with him after he (in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands. He advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result.

As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of
the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media.

So much for the SCOTUS-declared “quiet personal prayer.” Continuing Smith’s narrative (legal references omitted for ease of reading):

When Joseph Kennedy was hired by BSD in 2008, his post-game prayers were initially silent and private. … Over the ensuing years, however, Kennedy made it his mission to intertwine religion with football. Eventually, he led the team in prayer in the locker room before each game, and some players began to join him for his post-game 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 fans remained in the stands.

When BSD’s Athletic Director heard about Kennedy’s practices, he told Kennedy that he should not be conducting prayers with his players. Id. Kennedy then wrote on his Facebook page that he thought he might have been fired for praying. … According to Principal John Polm’s deposition, that post resulted in “thousands of people saying they were going to attend and storm the field with [Kennedy] after the game.” In addition, Superintendent Aaron Leavell wrote in his declaration that “[o]nce the topic arose, the District was flooded with thousands of emails, letters, and phone calls from around the country, many of which were hateful or threatening.” … Clearly, from that time forward, the public was watching to see whether BSD would permit Kennedy to continue his demonstrative religious practices while he was on the job.

The public’s interest was neither surprising nor unintended; during the course of these events, Kennedy gave numerous media interviews describing his practice of praying midfield at the conclusion of BHS’s games, and of his intention to defy BSD in so doing.

Having learned of Kennedy’s on-duty religious practice, BSD concluded that it needed to make certain the coaching staff clearly understood the parameters of what was expected of them regarding religious activities while on the job. … BSD told the coaching staff that they could and should
continue giving inspirational talks to their players but that “[t]hey must remain entirely secular in nature, so as to avoid alienation of any team member.” … BSD also advised that “[s]tudent religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.” … BSD further counseled that “[i]f students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer, who is aware of the history and context of such activity at BHS, as endorsement of that activity.” … Last, BSD stressed that Kennedy personally 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.”

Kennedy initially followed BSD’s instructions, ceasing both his pre-game and post-game prayers, but he eventually commenced a very public campaign against BSD focused only on the post-game activity. Quoting from our opinion: “Kennedy’s increasingly direct challenge to BSD escalated when he wrote BSD through his lawyer on October 14, 2015. The letter announced that Kennedy would resume praying on the fifty-yard line immediately after the conclusion of the October 16, 2015 game. Kennedy testified in his deposition that he intended the October 14 letter to communicate to the district that he “wasn’t going to stop [his] prayer because there was [sic] kids around [him].” In other words, Kennedy was planning to pray on the fifty-yard line immediately after the game, and he would allow students to join him in that religious activity if they wished to do so. The lawyer’s letter also demanded that BSD rescind the directive in its September 17 letter that Kennedy cease his post-game prayers at the fifty-yard line immediately after the game.”

Kennedy’s intention to pray on the field following the October 16 game was widely publicized through Kennedy and his representatives’ “numerous appearances and announcements [on] various forms of
media.” For example, the Seattle Times published an article on October 14 (the same day as the lawyer’s letter was sent to BSD), entitled “Bremerton football coach vows to pray after game despite district order. A Bremerton High School football coach said he will pray at the 50-yard line after Friday’s homecoming game, disobeying the school district’s orders and placing his job at risk.” …

So what this man did is intentionally create a spectacle that put the district into a corner, including having to provide heightened security:

In an attempt to secure the field from public access, BSD “made arrangements with the Bremerton Police Department for security, had signs made and posted, had ‘robo calls’ made to District parents, and otherwise put the word out to the public that there would be no access to the field.” A Satanist religious group contacted BSD in advance of the game to notify them that “it intended to conduct ceremonies on the field after football games if others were allowed to.”

In conditioning their request (“if others are allowed to”), the Satanists exhibit more respect for authority than Christian Kennedy. Kennedy, however, had access to the field precisely because he was the district representative in charge of the game, so to speak:

On the day of the game, the District had not yet responded to Kennedy’s letter. Kennedy nonetheless proceeded as he indicated he would. The Satanist group was present at the game, but “they did not enter the stands or go on to the field after learning that the field would be secured.” But Kennedy had access to the field by virtue of his position as a public-school employee. Once the final whistle blew, Kennedy knelt on the fifty-yard line, bowed his head, closed his eyes, “and prayed a brief, silent prayer.” According to Kennedy, while he was kneeling with his eyes closed, “coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him].”

Kennedy’s claim that the large gathering around him of coaches, players, a state elected official, and other members of the public who had been made aware of Kennedy’s intentions because of the significant amount of publicity advertising what Kennedy was about to do, was “spontaneous” is self-evidently [false]. Moreover, Kennedy’s counsel acknowledged in his October 14, 2015 letter that Kennedy’s prayers were “verbal” and “audible,” flatly contradicting Kennedy’s own recounting.

BSD stated that this demonstration of support for Kennedy involved “people jumping the fence” to access the field, and BSD received complaints from parents of students who had been knocked down in the stampede. Principal John Polm said that he “saw people fall[.]” Principal Polm testified that “when the public went out onto the field, we could not supervise effectively,” resulting in “an inability to keep kids safe.” A photo of this scene is in the record, and it depicts approximately twenty players in uniform kneeling around Kennedy with their eyes closed, a large group of what appear to be adults standing outside the ring of praying players, and several television cameras photographing the scene. …

In the days after the game, similar pictures were “published in various media.” Kennedy also made numerous media appearances in connection with the October 16 game, to, in his words, “spread the word of what was going on in Bremerton.” For example, on October 18, 2015, CNN featured an article entitled “Despite orders, Washington HS coach prays on field after game.”

On October 23, 2015, BSD sent Kennedy a letter explaining that his conduct at the October 16 game violated BSD’s policy. BSD reiterated that it “can and will” accommodate “religious exercise that would not be perceived as District endorsement, and which does not otherwise interfere with the performance of job duties.” To that end, it suggested that “a private location within the school building, athletic facility or press box could be made available to [Kennedy] for brief religious exercise before and after games.”

Kennedy, of course, could also pray on the fifty-yard line after the stadium had emptied, as he did on September 18. Because the “[d]evelopment of accommodations is an interactive process,” the District invited Kennedy to offer his own suggestions.

Kennedy and his attorneys’ only response in the record to BSD’s invitation was informing the media that the only acceptable outcome would be for BSD to permit Kennedy to pray on the fifty-yard line immediately after games.

Kennedy engaged in the same behavior in violation of BSD’s directive on October 23, 2015 and October 26, 2015. A photo taken after the October 23 game shows Kennedy kneeling alone on the field while players and other individuals mill about. A photo taken after the October 26 game shows at least six individuals, some of whom appear to be school-age children, kneeling around Kennedy. (Note: Sotomayor’s dissent identifies politicians, not students, in this pic.)

This is not about the right to pray. It is about a desire to be seen praying. Kennedy’s decision to publicize his praying no matter how it might affect others is a failure of meekness, of coming under authority and modeling that for one’s students. It is about failing to consider at all the district’s wish to try to accommodate Kennedy’s prayer while maintaining the appearance of neutrality about the issue. It is about ignoring the reality that some students might feel compelled to participate in order to be part of the group. It is also about not considering the negative consequences for others when one stirs up the crowd’s anger, including fears about one’s future safety:

During this time, other BSD employees testified that they suffered repercussions due to the “attention given to Mr. Kennedy’s issue and the way he chose to address the situation.” For example, Nathan Gillam, BHS’s head football coach, testified that during the controversy, “an adult who [he] had never seen before came up to [his] face and cursed [him] in a vile manner.” Gillam further stated that he was concerned for his physical safety. He testified, “One of the assistant football coaches was also a police
officer and, as we headed down to the field for one game, I obliquely asked him what he thought about whether we could be shot from the crowd.” As a result of these concerns, Gillam “decided that [he] would resign” from the coaching position he had held for eleven years.

After the season wound down, BSD began its annual process of providing its coaches with performance reviews. Gillam recommended that Kennedy not be rehired because Kennedy “failed to follow district policy,” “his actions demonstrated a lack of cooperation with administration,” he
“contributed to negative relations between parents, students, community members, coaches and the school district,” and he “failed to supervise student-athletes after games due to his interactions with [the] media and [the] community.” Kennedy did not apply for a 2016 coaching position.

Smith continues with discussion of case law related to free speech, free expression, and the Establishment Clause.

This is not a lesson in free speech or free expression. It is a lesson in attention-seeking and selfishness.

Here’s how the SCOTUS supermajority spins it:

The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015.

The timing and circumstances of Mr. Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirms that Mr. Kennedy did not offer his prayers while acting within the scope of his duties as a coach.

JUSTICE GORSUCH delivered the opinion of the Court.
Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

From the SCOTUS minority’s dissent:

This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale, 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.

To those having trouble with the above statement about “constotutionally-impermissible, official-led prayer,” just imagine how you would treasure the restriction if the official praying were one of those previously-mentioned members of the Satanic church.


The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. See Carson v. Makin, 596 U. S. , (2022) (BREYER, J., dissenting) (slip op., at 1). To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50- yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District) stated that it was suspending Kennedy to avoid it being viewed as endorsing religion. Under the Court’s analysis, presumably this would be a different case if the District had cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access to the field as grounds for suspending him. As the District did not articulate those grounds, the Court assesses only the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice.

Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. Ante, at 22. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.

As the majority tells it, Kennedy, a coach for the District’s football program, “lost his job” for “pray[ing] quietly while his students were otherwise occupied.” … The record before us, however, tells a different story.

The District serves approximately 5,057 students and employs 332 teachers and 400 nonteaching personnel in Kitsap County, Washington. The county is home to Bahá’ís, Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and many denominations of Christians, as well as numerous residents who are religiously unaffiliated. …

The District first hired Kennedy in 2008, on a renewable annual contract, to serve as a part-time assistant coach for the varsity football team and head coach for the junior varsity team at Bremerton High School (BHS). Kennedy’s job description required him to “[a]ccompany and direct” all home and out-of-town games to which he was assigned, overseeing preparation and transportation before games, being “[r]esponsible for player behavior both on and off the field,” supervising dressing rooms, and “secur[ing] all facilities at the close of each practice.” … His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave. …

The District also set requirements for Kennedy’s interactions with players, obliging him, like all coaches, to “exhibit sportsmanlike conduct at all times,” “utilize positive motivational strategies to encourage athletic performance,” and serve as a “mentor and role model for the student athletes.” … In addition, Kennedy’s position made him responsible for interacting with members of the community. In this capacity, the District required Kennedy and other coaches to “maintain positive media relations,” “always approach officials with composure” with the expectation that they were “constantly being observed by others,” and “communicate effectively” with parents.

Finally, District coaches had to “[a]dhere to [District] policies and administrative regulations” more generally. … As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”

I thought of abbreviating the Sotomayor dissent section due to the length of this post, but the details are critical in understanding that Kennedy knew of and repeatedly defied his job description and other district policy, which means he refused to adhere to the authority in place when he was hired, and the SCOTUS supermajority completely ignores this fact.

In September 2015, a coach from another school’s football team informed BHS’ principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team’s coach told the principal that he thought it was “‘cool’” that the District “‘would allow [its] coaches to go ahead and invite other teams’ coaches and players to pray after a game.’” …

The District initiated an inquiry into whether its policy on Religious-Related Activities and Practices had been violated. It learned that, since his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team. Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into
postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him. … The District also learned that students had prayed in the past in the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too.

While the District’s inquiry was pending, its athletic director attended BHS’ September 11, 2015, football game and told Kennedy that he should not be conducting prayers with players. After the game, while the athletic director watched, Kennedy led a prayer out loud, holding up a player’s helmet as the players kneeled around him. While riding the bus home with the team, Kennedy posted on Facebook that he thought he might have just been fired for praying.

This man could have chosen to model for his players the ability to come under authority (in this case, the direct authority of the athletic director) and respect the district’s request in its pending inquiry. Instead, he chose to openly defy the district and stir up the issue on social media and sow discord. As a Christian, I have no respect for Kennedy’s defiance.

In contrast to Kennedy, it is the district that demonstrates patience and restraint:

On September 17, the District’s superintendent sent Kennedy a letter informing him that leading prayers with students on the field and in the locker room would likely be found to violate the Establishment Clause, exposing the District to legal liability. The District acknowledged that Kennedy had “not actively encouraged, or required, participation” but emphasized that “school staff may not indirectly encourage students to engage in religious activity” or “endors[e]” religious activity; rather, the District explained, staff “must remain neutral” “while performing their job duties.” … The District instructed Kennedy that any motivational talks to students must remain secular, “so as to avoid alienation of any team member.” … The District reiterated that “all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.” … To
avoid endorsing student religious exercise, the District instructed that such activity must be nondemonstrative or conducted separately from students, away from student activities. … The District expressed concern that Kennedy had continued his midfield prayer practice at two games after the District’s athletic director and the varsity team’s head coach had instructed him to stop. …

Kennedy stopped participating in locker room prayers and, after a game the following day, gave a secular speech. He returned to pray in the stadium alone after his duties were over and everyone had left the stadium, to which the District had no objection. Kennedy then hired an attorney, who, on October 14, sent a letter explaining that Kennedy was “motivated by his sincerely-held religious beliefs to pray following each football game.” … The letter claimed that the District had required that Kennedy “flee from students if they voluntarily choose to come to a place where he is privately praying during personal time,” referring to the 50-yard line of the football field immediately following the conclusion of a game. … Kennedy requested that the District simply issue a “clarif[ication] that the prayer is [Kennedy’s] private speech” and that the District not “interfere” with students joining Kennedy in
prayer. … The letter further announced that Kennedy would resume his 50-yard-line prayer practice the next day after the October 16 homecoming game.

There is a power differential that Kennedy refuses to acknowledge. If he really wants anyone to be free to voluntarily join him, he should pray outside of the proximity of his power– different place, different time, completely disconnected from the school, or from coaching. And certainly, he should not take to media to broadcast the situation (making anyone “spontaneously” participating with him a ridiculous idea on its face). But no:

Before the homecoming game, Kennedy made multiple media appearances to publicize his plans to pray at the 50-yard line, leading to an article in the Seattle News and a local television broadcast about the upcoming homecoming game. In the wake of this media coverage, the District began receiving a large number of emails, letters, and calls, many of them threatening.

The district confronts Kennedy’s reshaping of ersatz “solo” prayer:

The District responded to Kennedy’s letter before the game on October 16. It emphasized that Kennedy’s letter evinced “materia[l] misunderstand[ings]” of many of the facts at issue. … For instance, Kennedy’s letter asserted that he had not invited anyone to pray with him; the District noted that that might be true of Kennedy’s September 17 prayer specifically, but that Kennedy had acknowledged inviting others to join him on many previous occasions. The District’s September 17 letter had explained that Kennedy traditionally held up helmets from the BHS and opposing teams while players from each team kneeled around him. While Kennedy’s letter asserted that his prayers “occurr[ed] ‘on his own time,’ after his duties as a District employee had ceased,” the District pointed out that Kennedy “remain[ed] on duty” when his prayers occurred “immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.” … The District further noted that “[d]uring the time following completion of the game, until players are released to their parents or otherwise allowed to leave the event, Mr. Kennedy, like all coaches, is clearly on duty and paid to continue supervision of students.” …

The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion. The District explained that its establishment concerns were motivated by the specific facts at issue, because engaging in prayer on the 50-yard line immediately after the game finished would appear to be an extension of Kennedy’s “prior, long standing and wellknown history of leading students in prayer” on the 50-yard line after games. … The District therefore reaffirmed its prior directives to Kennedy.

On October 16, after playing of the game had concluded, Kennedy shook hands with the opposing team, and as advertised, knelt to pray while most BHS players were singing the school’s fight song. He quickly was joined by coaches and players from the opposing team. Television news cameras surrounded the group. … Members of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members. After the game, the District received calls from Satanists who “‘intended to conduct ceremonies on the field after football games if others were allowed to.’” … To secure the field and enable subsequent games to continue safely, the District was forced to make security arrangements with the local police and to post signs near the field and place robocalls to parents reiterating that the field was not open to the public.

The District sent Kennedy another letter on October 23, explaining that his conduct at the October 16 game was inconsistent with the District’s requirements for two reasons. First, it “drew [him] away from [his] work”; Kennedy had, “until recently, . . . regularly c[o]me to the locker room with the team and other coaches following the game” and had “specific responsibility for the supervision of players in the
locker room following games.” … Second, his conduct raised Establishment Clause concerns, because “any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given [his] prior public conduct, overtly religious conduct.” …

Again, the District emphasized that it was happy to accommodate Kennedy’s desire to pray on the job in a way that did not interfere with his duties or risk perceptions of endorsement. Stressing that “[d]evelopment of accommodations is an interactive process,” it invited Kennedy to reach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others. Id., at 93–94. The District noted, however, that “further violations of [its] directives” would be grounds for discipline or termination. … Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50-yard line immediately after games. During the October 23
and October 26 games, Kennedy again prayed at the 50-yard line immediately following the game, while postgame activities were still ongoing. At the October 23 game, Kennedy kneeled on the field alone with players standing nearby. At the October 26 game, Kennedy prayed surrounded by members of the public, including state representatives who attended the game to support Kennedy. The BHS players, after singing the fight song, joined Kennedy at midfield after he stood up from praying.

In an October 28 letter, the District notified Kennedy that it was placing him on paid administrative leave for violating its directives at the October 16, October 23, and October 26 games by kneeling on the field and praying immediately following the games before rejoining the players for postgame talks. The District recounted that it had offered accommodations to, and offered to engage in further discussions with, Kennedy to permit his religious exercise, and that Kennedy had failed to respond to these offers. The District stressed that it remained willing to discuss possible accommodations if Kennedy was willing.

After the issues with Kennedy arose, several parents reached out to the District saying that their children had participated in Kennedy’s prayers solely to avoid separating themselves from the rest of the team. No BHS students appeared to pray on the field after Kennedy’s suspension. In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. … The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.

I will close with some history of Kennedy’s suit, as presented in Sotomayor’s dissent:

Kennedy then filed suit. He contended, as relevant, that the District violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment. Kennedy moved for a preliminary injunction, which the District Court denied based on the circumstances surrounding Kennedy’s prayers. The court concluded that Kennedy had “chose[n] a time and event,” the October 16 homecoming game, that was “a big deal” for students, and then “used that opportunity to convey his religious views” in a manner a reasonable observer would have seen as a “public employee . . . leading an orchestrated session of faith.” … The Court of Appeals affirmed, again emphasizing the specific context of Kennedy’s prayers. The court rejected Kennedy’s contention that he had been “praying on the fifty-yard line ‘silently and alone.’” … The court noted that he had in fact refused “an accommodation permitting him to pray . . . after the stadium had emptied,” “indicat[ing] that it is essential that his speech be delivered in the presence of students and spectators.” … This Court denied certiorari.

Following discovery, the District Court granted summary judgment to the District. The court concluded that Kennedy’s 50-yard-line prayers were not entitled to protection under the Free Speech Clause because his speech was made in his capacity as a public employee, not as a private citizen. … In addition, the court held that Kennedy’s prayer practice violated the Establishment Clause, reasoning that “speech from the center of the football field immediately after each game . . . conveys official sanction.” … That was especially true where Kennedy, a school employee, initiated the prayer; Kennedy was “joined by students or adults to create a group of worshippers in a place the school controls access to”; and Kennedy had a long “history of engaging in religious activity with players” that would have led a familiar observer to believe that Kennedy was “continuing this tradition” with prayer at the 50-yard line. … The District Court further found that players had reported “feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.” …

The court rejected Kennedy’s free exercise claim, finding the District’s directive narrowly tailored to its Establishment Clause concerns and citing Kennedy’s refusal to cooperate in finding an accommodation that would be acceptable to him. … The Court of Appeals affirmed, explaining that “the facts in the record utterly belie [Kennedy’s] contention that the prayer was personal and private.” … The court instead concluded that Kennedy’s speech constituted government speech, as he “repeatedly
acknowledged that—and behaved as if—he was a mentor, motivational speaker, and role model to students specifically at the conclusion of the game.” … In the alternative, the court concluded that Kennedy’s speech, even if in his capacity as a private citizen, was appropriately regulated by the District to avoid an Establishment Clause violation, emphasizing once more that this conclusion was tied to the specific “evolution of Kennedy’s prayer practice with students” over time. … The court rejected Kennedy’s free exercise claim…. The Court of Appeals denied rehearing en banc, and this Court granted certiorari (agreed to hear the case).

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.

The SCOTUS supermajority opted for “a gausy history” in order to promote prayer– a hypocrisy.

Kennedy sought to pray in public, arguably “to be seen by men,” and he did not provide a role model in meekness.

According to the June 29, 2022, Seattle Times, here’s how Kennedy has restructured the history of his public-prayer behavior:

“This is just me thanking God for 15 seconds after a football game,” Kennedy told The Seattle Times on Monday, after the ruling.

Meanwhile, Jesus:

Be careful not to practice your righteousness in front of others to be seen by them. If you do, you will have no reward from your Father in heaven. …

And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.

Matthew 6:1, 5-6, New International Version


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  1. Thank you for calling these “justices” out on their total bs!

  2. Really appreciate your work spelling this out so clearly, Mercedes. This is really damning.

  3. debneill permalink

    Reblogged this on History Chick in AZ and commented:
    A must read!

  4. Daedalus permalink

    OK, Pastafarians, Let’s try the same thing!

Trackbacks & Pingbacks

  1. Mercedes Schneider: The Coach’s Prayer Was Neither “Personal” Nor “Private” | Diane Ravitch's blog
  2. 2022 Medley #2 – SCOTUS Gets First Amendment Religion Guarantee Wrong | Live Long and Prosper

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