Does the United States Constitution protect the right of a high school football coach to lead ostensibly voluntary post-game prayer sessions on the 50-yard line, or should school officials protect students from possibly feeling like they must participate in religious activities? On April 25, the U.S. Supreme Court will hear arguments in Kennedy v. Bremerton School District, a case that pits three First Amendment provisions against one another: the coach’s rights to free speech and to free exercise of his faith, on the one hand, and the school district’s obligations under the Establishment Clause, which the Court has previously said prevents public bodies from favoring any particular religion.
For years, Joseph Kennedy, an assistant football coach in Bremerton, Washington, would walk to the 50-yard line after games and visibly offer a prayer. Soon, many of his players started to join him. When school officials eventually learned of this practice, they asked him to stop, worrying that some students felt compelled by peer pressure to take part, or even feared losing game time if they didn’t participate. Kennedy temporarily agreed, but soon resumed his post-game prayers, declining offers by district officials to accommodate his private devotions in other, less public, ways. Kennedy eventually sued. Both the federal district court and the Ninth Circuit Court of Appeals ruled in favor of school officials, citing longstanding Supreme Court precedents.
Constitutional scholar Sanford Levinson, a longtime professor at the University of Texas Law School and a regular visiting professor at Harvard Law, says the Court’s ruling will hinge on whether a majority of the justices view Kennedy as the victim of religious oppression or see the school district as having acted responsibly to protect students from religious coercion. Ultimately, he believes this case is just another episode in the culture wars.
Harvard Law Today: What arguments are the former coach, Joseph Kennedy, and his legal team making in favor of him being allowed to pray at the 50-yard line after the games?
Sanford Levinson: Coach Kennedy’s argument, and that of his very, very well-skilled lawyer, Paul Clement, is that he is the victim of religious oppression when he is trying simply to pray to his God on the football field — that despite its location, it is a private act of devotional prayer. They argue that this is protected by the First Amendment, either by the Free Exercise or the Free Speech clauses.
HLT: How about the school district? What are they arguing?
Levinson: If you read the brief of the district, you see a stunningly different description of the state of facts. They argue that the coach is, in effect, leading his own private revival meeting, in which he is encouraging students, members of the opposite team, any presumably anybody who wants to join him to come down to the 50-yard line and engage in this religious ritual. They believe this violates the Establishment Clause, which the Court has said prevents government officials from proselytizing.
HLT: Which side has the better argument?
Levinson: Frankly, depending on which version of the facts you believe, it’s an easy case either way. If you accept the district’s description of what’s going on, then I think it is clearly constitutional to prohibit the coach from doing that. There are cases holding that public officials cannot use their office to proselytize. But if you accept the coach’s version of events, then he ought to win, because he is a lone individual who just happens to be a coach and, when he goes to the 50-yard line to pray, he’s doing so simply as a private individual, hoping nobody will notice. Both the district court and the Ninth Circuit accepted the school district’s version of events. And my hunch, but it’s only my hunch, is that the district is more accurate in its statement of facts.
HLT: Why do you think the Supreme Court decided to take this case?
Levinson: Let me approach this question more as a political scientist than as a lawyer. The Court says over and over again that it exists only to resolve cases of genuine national importance, or where there are conflicting rulings among lower courts that need to be resolved with a singular national rule, rather than allowing the embarrassment of saying that there’s one Constitution for the Fifth Circuit, and another Constitution for the Second Circuit. In this case, it’s hard to believe that this is an issue of great national importance, and there are no conflicts among the lower courts.
So, why in the world did the Supreme Court take this case? I think it’s because there are now at least four justices — that’s all it takes for the Court to take a case — who are active soldiers in the culture wars and who are on the side of anybody with a religious claim against the secular authorities. My hunch is that there are five justices — and maybe six, with Chief Justice Roberts — who will accept some version of the coach’s story and say that he wins. And this will be billed in some circles as yet another way that the Supreme Court is protecting us, that is, religious believers, against their secular oppressors.
On the other hand, it seems to me that if you are not a culture warrior, then you’re going to be predisposed to saying that the Ninth Circuit got it right. Given their description of the state of facts, you would really have to argue that the courts below were clearly erroneous in their descriptions of the world as a reason to hear the case.
HLT: You mention that the facts presented by the two sides are very different. How does the Supreme Court generally approach that type of challenge? Do the justices often relitigate the facts or do they accept the facts as found by lower courts and simply focus on whether the law was applied correctly?
Levinson: Usually, appellate courts will defer to the courts below on their judgments of facts and only overrule the court below if there is a demonstrable error in the application of law to the facts as determined by the court. One exception involves cases in which race seemed to play a role in the outcome of a criminal case. For instance, if an elected state judge allowed the prosecutor to use peremptory challenges to get rid of all the Black jurors during the selection process, an appellate court might then distrust the judge’s declaration that genuinely “race-neutral” reasons were present to justify the dismissals. Even then, the Supreme Court has been shockingly reluctant to “pierce the veil” in those types of situations.
In classical free speech cases, courts have said, in effect, ‘we don’t necessarily trust juries because they may share the general prejudices of the community and convict you because what you’re saying is really unpopular.’ In that case, the appellate judges might be more inclined to review the facts. The old standard used to be, ‘did your speech really, and truly generate a clear and present danger to the community?’ The modern doctrine would be ‘are you really inciting the commission of a crime?’ But this case doesn’t fit that paradigm, because it’s not that a jury convicted him, but that lower courts looked at the evidence and came to the conclusion that it was the coach who was abusing his ostensible rights, rather than the school district. So, it remains a judgment call based on the facts.
HLT: Which Supreme Court precedents will be important in this case?
Levinson: There has been a string of decisions saying the state cannot require prayer, beginning in 1962 [Engel v. Vitale, in which the Court held the use of an official school prayer unconstitutional]. So, then the question becomes, what if the state isn’t requiring prayer, but nonetheless is presenting a prayer and forcing you to listen to it and to be respectful? The major Supreme Court case on that came back in 1992 [Lee v. Weisman] and dealt with a prayer at a high school graduation ceremony in Rhode Island. In a five to four decision, the Court ruled that the school couldn’t, in effect, coerce students to listen to the prayer, even though they notionally could have chosen to skip their own graduation and received their diplomas by mail instead. But the courts have been split quite bitterly on the issue of school-related prayers surrounding athletic events. And, frankly, as we’ve already seen in other cases, no precedent is safe under this Court.
HLT: If your hunch is right and at least five justices decide in favor of the former coach in this case, what might that ruling look like?
Levinson: If you accept the district’s view of what was going on this, I think the coach’s actions would have been viewed as potentially coercive. And you’ve got cases that certainly support that. But it will be interesting to see if my predicted majority decision simply says that former Justice Kennedy, who wrote the decision and was the swing vote in the in the Rhode Island case, was wrong and that as long as the coach isn’t saying explicitly, ‘you must say this prayer,’ but he’s instead only asking ‘who wants to come pray on the 50-yard line,’ that’s not coercive. They might do that.
HLT: How important is this case in terms of the balance between religion and the state? And this isn’t the only Free Exercise or Establishment Clause case the Court has heard this session. What do you think the results might look like once all the decisions are handed down?
Levinson: Unless you’re really caught up in the culture wars, this is a very trivial case. Except for symbolism, it just isn’t very important. But I think the Maine case is really, really important. [In Carson v. Makin, the Court will decide whether, in a general funding program for secondary school students, the state of Maine permissibly denied money to students who wanted to attend religious schools that fostered religious instruction]. In that case, I think they’re going to say that religious schools have a constitutional right to public funding. And that will be very, very important, and will deserve lots and lots of headlines.