It's debatable: Looking at constitution and football coach's midfield prayers
In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate a case before the Supreme Court in which it is considering whether a high school football coach's prayers at the 50-yard line violate the Establishment Clause of the Constitution. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.
ROSEN 1:
On April 25, the Supreme Court heard arguments in Kennedy v. Bremerton School District, which involved a high-school football coach — Joe Kennedy — who kneeled at the 50-yard line and prayed after every game. Concerned about a violation of the First Amendment’s Establishment Clause, the district superintendent directed Coach Kennedy not to pray publicly in front of students but to do so privately. The coach refused to comply and eventually parted ways with the school.
Coach Kennedy’s attorneys couched the issue as whether a public-school employee may say a brief, quiet prayer by himself at school and visible to students. In fact, Coach Kennedy’s prayers were neither private nor quiet. Bremerton players began to kneel and pray with him, and when the superintendent’s order became public, Coach Kennedy solicited the community’s support, and players and others surrounded him as he prayed audibly. Thus, the real question is whether a high-school coach may engage in demonstrative religious conduct immediately following a game surrounded by his players and members of the community.
First, Bremerton hired Joe Kennedy to be a coach, mentor, and role model for student athletes. His duties did not end with the final whistle. Instead, during his public prayers, Coach Kennedy was a government employee. His expression on the field — a location to which he had access only because of his employment — occurred when he was tasked with communicating with students. Consequently, Coach Kennedy’s speech was government speech and, in this context, was not protected by the First Amendment.
Second, the Establishment Clause requires government neutrality between religions and between religion and nonreligion. The Clause prohibits public schools from conveying a message that religion or a particular religion is favored or preferred. The Supreme Court has deemed unconstitutional prayer outside school classrooms, including student-led prayers at high-school football games. Coach Kennedy insisted his prayers occur immediately after games, and he openly directed the prayers at students and the public. As such, had it not been stopped, this conduct would have been perceived as Bremerton’s endorsement of Kennedy’s religious activity — a violation of the Establishment Clause.
I deeply respect the fact Coach Kennedy is a retired Marine. In this case, however, Coach Kennedy should not have disobeyed the order to cease his public prayers, thereby placing Bremerton in legal jeopardy.
MOSTER 1
The Kennedy v. Bremerton School District case may be the “constitutional canary” in the coal mine of protected private speech. Counsel for Coach Kennedy in their legal brief correctly frame the issue by citing the Supreme Court articulated dividing line “between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses Protect."
I must disagree with Rick’s pronouncement that Coach Kennedy’s prayers “were neither private nor quiet” and his displeasure with Kennedy’s attorneys couching “the issue as whether a public-school employee may say a brief, quiet prayer by himself at school and visible to students." In fact, the Coach’s counsel got it right as evidenced by the school district’s own communications. Reference to the Petitioner’s Reply Brief filed with the U.S. Supreme Court provides direct evidence that the Bremerton School District conceded that Coach Kennedy was not engaged in demonstrative conduct. “He neither claimed nor sought a right to ‘deliver’ prayers to ‘students’ BIO.i – as the district itself contemporaneously acknowledged, see, e.g., ER 185; E.R. 267 (email from superintendent acknowledging that ‘the issue has shifted from leading prayer with student athletes to’ whether Kennedy could ‘conduct a personal, private prayer .. on the 50 yard line.”
And that makes all the factual and legal difference in the world as the coach was not seeking to boisterously impose his prayers on the students or anyone else. The factual record makes clear that the encounter was exceedingly private, understated, and critically – after the football game had concluded. As such, this incident should not have even registered on any Constitutional Richter Scale let alone the seismic proportions imputed by the school district and those who would curtail our civil liberties.
Rick is correct that the Establishment Clause requires “government neutrality between religions and between religion and nonreligion”. However, as pointed out in Kennedy’s brief, “For more than a century, most lower courts have recognized that most public schools may tolerate teachers’ private but observable religious expression without running afoul of the Establishment Clause”.
It doesn’t take a constitutional scholar to conclude that the school district is overreaching and seeking to suppress Coach Kennedy’s right to Free Speech and the Free Exercise of religious faith under the First Amendment. This case is not restricted to an esoteric point of law. It will determine whether prohibitions against the exercise of free speech and religious expression are struck down or emboldened. We will soon find out whether the constitutional canary perishes or survives.
ROSEN 2
If this was simply a case of a coach praying privately on the 50-yard line after a game, Coach Kennedy’s conduct might be sustainable. Contrary to Charles’ assertions, this is not what happened. Kennedy’s prayers became an issue when a coach from an opposing team told Kennedy’s principal that Kennedy asked his team to join Kennedy in prayer. The school district was justly concerned that Kennedy’s public prayers with students exposed it to claims it breached the Establishment Clause, which prohibits public-school teachers from engaging prayer with students.
The district offered Coach Kennedy alternatives: deliver an inspirational secular talk or pray privately away from students. Kennedy refused, instead making himself a cause célèbre by “engaging in a media blitz” and seeking public support for his prayers. To suggest Coach Kennedy intended his conduct to be private is simply disingenuous—he deliberately prayed on the 50-yard line immediately following games in front of students and fans.
Importantly, Coach Kennedy spoke as a public employee, not a private citizen. That the games ended is irrelevant; Kennedy was still “on the job.” His contract with the school district “entrusted [him] to be a coach, mentor, and role model for the student athletes” before, during, and after games. Kennedy had access to the 50-yard line only because of his employment. Thus, the First Amendment does not protect Kennedy’s conduct. And if the district had failed to act, an impartial observer would certainly perceive Kennedy’s prayers while surrounded by students as having the school’s endorsement, an Establishment Clause violation.
But assume, as Kennedy’s lawyers argue, that Kennedy prayed as a private citizen, not a coach. If such private prayer is permitted, citizens representing every manner of faith group—both traditional and nontraditional—could demand their rightful place on the field for prayer because the school may neither discriminate against such speech based on its content nor between religions.
On May 2, the Supreme Court held that Boston could not prohibit the flying of a Christian flag on a city-hall flagpole when it allowed secular flags. Immediately thereafter, one of the first groups to seek access to the flagpole was a Salem-based Satanic Temple, and Satanists were prepared to pray on the field in this case. Coach Kennedy, a devout Christian, likely never intended such a result, but it is a consequence that he and his supporters must be prepared to accept.
MOSTER 2
Rick and I disagree as to what transpired on the 50-yard line. Of course, a squabble over the facts is what litigation is all about and why courts are supposed to rely on objective and admissible evidence to arrive at the proper legal conclusion.
The entire record before the Supreme Court includes Kennedy’s prior legal brief which cites an email from the Bremerton School District expressly admitting that the prayer at issue was non-demonstrative, personal and private. As stated by the Superintendent, “the issue has shifted from leading prayer with student athletes to ‘whether Kennedy could conduct a personal, private prayer...on the 50-yard line.” Although counsel for the School District characterized the subject conduct differently in oral arguments, it is axiomatic that a lawyer’s argument is not evidence of anything – and for good reason! Consequently, based on this compelling and undisputed evidence, I will hold Professor Rosen to his word that “if this was simply a case of a coach praying privately on the 50-yard line after a game, Coach Kennedy’s conduct might be sustainable." Well, I guess we can still argue over the use of the word “might”.
A huge part of this problem is the constant attempt of the government and the judicial branch to micromanage our basic civil liberties as guaranteed by the Constitution. This was never intended or expressed by the Founding Fathers in the drafting or execution of the Establishment Clause. As corroborated by Michael W. McConnel, a leading Constitutional Law Scholar at Stanford University, “While Congress is prohibited from enacting a state religion, the founding document says nothing about banishing religion from the public square. I would substitute the phrase “50-yard line."
Speaking of which, Rick is greatly concerned that if Coach Kennedy’s right to “private speech” is upheld, we will face a deluge of religious groups and fanatics seeking their rightful place on the 50- yard line. I guess we could potentially see other Christian sects and possibly a Jewish denomination running on to the field. Rick seems worried by “Satanists” taking the stage but that is very low on my list of serious threats to the survival of our nation let alone day-to-day concerns of the Bremerton School District. I would keep a closer eye on Putin’s potential use of nuclear weapons and the precise targeting capability of Russian missiles.
I can only hope that the litigation hype will make way for a sober review of the facts and law. Keep in mind that this is a death penalty case – for a canary, of course, and in a Constitutional Coal Mine.
You know where I come out on this.
This article originally appeared on Lubbock Avalanche-Journal: It's debatable: The constitution and football coach's midfield prayers
