WASHINGTON — The Supreme Court’s conservative majority seemed to be searching 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 Kennedy, and the shifting rationales offered by the school district in Bremerton, Washington, for disciplining him.

The case pits the rights of government workers to free speech and the free exercise of their faith against the Constitution’s prohibition of government endorsement of religion and Supreme Court precedents that forbid pressuring students to participate in religious activities.

In his eight years as an assistant coach at Bremerton High School, Kennedy routinely offered prayers after games, with students often joining him. He also led and participated in prayers in the locker room, a practice neither he nor his lawyers now defends.

More about former coach Joseph Kennedy

In 2015, after an opposing coach told the principal that he thought it was “pretty cool” that Kennedy was allowed to pray on the field, the school board instructed Kennedy not to pray if it interfered with his duties or involved students.


The two sides disagree about whether Kennedy complied.

A school official recommended against renewing the coach’s contract for the 2016 season, and Kennedy did not reapply for the position.

According to Paul Clement, one of Kennedy’s lawyers, all that was at issue in the case now was whether his client could offer a brief, silent and solitary prayer of thanks after his team’s games. Earlier episodes were not relevant, Clement said.

“Coach Kennedy was fired for that midfield prayer, not for any earlier practices,” Clement said, adding that the school district’s actions violated Kennedy’s First Amendment rights.

Richard Katskee, a lawyer for the Bremerton School District, said it was entitled to require that its employees refrain from public prayer if students were likely to feel coerced into participating.

“He insisted on audible prayers at the 50-yard line with students,” Katskee said of Kennedy. “He announced in the press that those prayers are how he helps these kids be better people.”

Katskee was challenged by some of the more conservative justices, who said the district had initially argued that it could stop 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.


“One of the difficulties of this case is getting one’s hands around the district’s rationale,” Justice Neil Gorsuch said.

Justices across the ideological spectrum peppered the lawyers with hypothetical questions. Chief Justice John Roberts asked whether Kennedy could have prayed aloud while standing with his arms outstretched. Justice Amy Coney Barrett went a little further: “Let’s say he says the ‘Our Father’ with arms outstretched and it starts causing a lot of havoc in the stands.”

Justice Samuel Alito asked whether Kennedy would have been disciplined for protesting the invasion of Ukraine, climate change or racial injustice. Justice Sonia Sotomayor wondered if a public high school could discipline “a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray.”

Justice Brett Kavanaugh asked whether a school could “fire the coach for the sign of the cross right before the game.”

The lawyers responded by proposing lines the justices could draw. Clement said it mattered whether a coach’s speech had “an instructional component” and whether a religious exercise was fleeting.

Katskee said it mattered whether the coach was “making himself the center of attention at the center of the field.”


Kavanaugh, himself a basketball coach, said the possibility of coercion posed an authentic problem.

“What about the player who thinks, ‘If I don’t participate in this, I won’t start next week?’” he asked, adding that “every player’s trying to get on the good side of the coach.”

Kavanaugh said the solution was elusive. “I don’t know how to deal with that, frankly,” he said.

Clement said the school district had not relied on that argument. “This is not a case where the government took action because of coercion concerns,” he said. “The record is crystal-clear that they were concerned about endorsement.”

He added that Kennedy’s conduct did not amount to coercion in any event. “When the coach is by himself at the midfield giving a 15-second fleeting prayer,” he said, “if you call that coercion, you are making an important category mistake.”

Both Roberts and Alito indicated that they wished the facts of the case were more straightforward.


“What if all that were off the table?” Roberts asked Katskee, referring to the tangled history of Kennedy’s dispute with the school district. “It’s simply the coach going out to midfield, kneeling — taking a knee — and that’s it?”

Alito, too, presented a simplified version of the controversy. “Forget about all of the complicated facts in this case,” he told Katskee.

Katskee said the hypothetical questions presented a closer question than the one actually before the court.

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 the officials from the U.S. 9th Circuit Court of Appeals, in San Francisco.

“The 9th Circuit’s understanding of the free speech rights of public-school teachers is troubling and may justify review in the future,” Alito wrote at the time. He was joined by Justices Gorsuch, Kavanaugh and Clarence Thomas.

“What is perhaps most troubling about the 9th Circuit’s opinion,” Alito added, “is 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 9th Circuit again ruled against 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 9th Circuit declined to rehear the case, over the objections of 11 judges. The two sides sharply disagreed about how to characterize Kennedy’s actions.

On Monday, Justice Stephen Breyer said the case, Kennedy v. Bremerton School District, No. 21-418, presented unusual challenges. “This may be a case about facts and not really much about the law,” he said.

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