Religion on the 50 Yard Line

On Monday June 27th, the Supreme Court handed down their anticipated decision in Kennedy vs. Bremerton School District. In a 6-3 ruling authored by Justice Neil Gorsuch, the majority argued that Junior Varsity coach Joseph Kennedy had his religious freedom violated by the school district’s decision to not renew his contract due to his praying at the 50 yard line. The school district had become concerned about potential liability under the antiestablishment clause of the first amendment.¹ The District Court sided with the school district, as did the ninth circuit Court of Appeals.

Justice Gorsuch dismissed the school district’s concern over the antiestablishment clause. After arguing that three first amendment clauses (antiestablishment, free exercise, and free speech) were linked, Justice Gorsuch spent his argument on linkages between the latter two. He argued that there was no clear evidence that anyone had been coerced into participating when Coach Kennedy gathered for the post-game prayers.² Gorsuch argued that what Kennedy did after the game was over was his personal time. In that light, his prayer could be considered no different than other coaches who used their post-game moments to call home or check sports scores.

I want to highlight this last point. This comparison of secular and religious practice has been a consistent theme in the Court in recent years. It was the basis for rulings about Covid church restrictions and the Maine school funding decision. If allowances are made for secular reasons, they argue, then any restriction on religion is discriminatory by definition.

The majority argued that the previous Lemon test requiring a balance of establishment and exercise no longer held due to earlier decisions about prayer in public spaces. They also seemed to reverse the Smith decision of 1993 where Justice Scalia argued that generally applied provisions could limit religious exercise claims (the case involved peyote use by Native Americans who were fired for drug use and denied unemployment benefits).

In dissent, Justice Sotomayor defended the school district’s establishment concerns, noting the great diversity of religious beliefs (including none whatsoever) in Kitsap County. The Association of Religion Data Archives has data from a 2010 census that showed that only around one-quarter of the county residents were religious.

Even though I can see how Justice Gorsuch reached his decision, there are three related issues that leave me really uncomfortable with the Kennedy ruling.

First, the current Supreme Court seems to be using an elevation of individual rights over collective rights, a pattern that has become increasingly clear over recent decades. The New York gun decision, Covid decisions, the Kennedy decision, and even the Dobbs decision eviscerating Roe³ can be seen in this frame.

Second, there is the issue of the title of this post. Why was it necessary for Coach Kennedy to pray on the 50 yard line? His right to personal religious expression to give thanks for a well played injury free game with sportsmanship on both sides could have easily been met with a prayer on the sidelines or in the locker room or in his car on the way home. Gorsuch focused on the cases where Kennedy prayed alone on the 50 yard line rather than the cases where groups were present. After Kennedy saw his case as an example of the religious persecution of Christians, he went on Facebook to announce he would be praying at midfield. Not surprisingly, people jumped the fence to be part of his public statement of faith.

Third, that disruption became a media sensation in the area. It was then only a matter of time until a Christian Legal Organization took up the cause, made Kennedy famous, and launched a Supreme Court fight. In this case, the organization was the First Liberty Institute. Organizations like these exist to keep issues like this present in the conservative Christian mindset. There will always be cases like Hobby Lobby, Masterpiece Cake, florists, photographers and the like to arouse Christian animus and keep the Christian Legal Organizations flush.⁴

Justice Gorsuch argued that “our traditions counsel mutual respect and tolerance … for religious and nonreligious views alike.” For now, it appears that “mutual respect” will be for nonreligious views to make room for religious (predominantly Christian) views even in the middle of public spaces like the 50 yard line.

1. I find it funny that the school district had been ignoring the practice until it was brought up by an opposing coach who thought it “was cool”. In response, the district worried that they were in potential legal jeopardy on establishment grounds.

2. It’s clearly been a long time since Gorsuch was in high school!

3. Alito was clear that the individual rights of the unborn child was preeminent. That’s why he argued it was different than other cases like Obergefell or Griswold (Thomas disagrees).

4. Read my friend Daniel Bennett’s excellent Defending Faith for more detail on these groups.