Faith, Facts, and FootballTodd R. McFarland November/December 2022
A win for religious freedom? Or a dangerous attack on church-state separation? Detangling a web of law and fact in a contentious Supreme Court decision
If you should ever find yourself sitting in a law school classroom, especially during your first year, there’s a key distinction you’re sure to encounter: issues of fact versus issues of law. These concepts are reasonably straightforward and intuitive. Issues of fact deal with what happened. Issues of law concern the law that applies to those facts.
Appellate courts, and especially the US Supreme Court, are supposed to deal only with issues of law. Factual disputes are to be worked out at trial. The surest way for the Supreme Court to decline a case is for it to be a “fact bound” dispute, hinging on who did what and when. The high court concerns itself with the law and lets other courts apply it.
This is what made the case of Coach Joseph Kennedy and the Bremerton School District unique. In a 6-to-3 decision this summer, the Supreme Court ruled that a school district should not have fired a high school football coach for praying publicly after games. But the outcome depended not so much on legal issues but on which facts were emphasized. Reading the Court’s decision and dissent, one could be forgiven for thinking that each were dealing with two different cases entirely.
Facts Versus Facts
It all started innocently enough. In the fall of 2015 an employee of another school district was talking to the principal of Bremerton High School. This individual commented favorably on the practice of one of the school’s football coaches, Joseph Kennedy, and some of the players who engaged in prayer at the 50-yard line after each game.
This was apparently news to the Bremerton principal, who, prior to this, was unaware of the tradition. An investigation ensued, which turned up additional information about prayers and religious activities taking place within the school’s football program. The school, concerned that allowing the coach to continue would violate the First Amendment’s establishment clause, told him to stop. Coach Kennedy made a Facebook post about the school’s edict, speculating that he could lose his job for praying, and the post generated widespread attention. Coach Kennedy’s concerns were proved valid: he was eventually fired.
In one set of facts, Coach Kennedy agreed to stop leading locker-room prayers with the student athletes and to cease giving religiously themed pep talks to the students after games on the field. Kennedy sought only to engage in silent, brief prayer on the field after the game, giving thanks for the Lord’s protection. He was instead told to go to the press box and pray out of sight.
According to the other set of facts, Coach Kennedy’s actions encouraged students to join him for prayer at midfield, alongside various state politicians. The media and public also began storming the field, and the entire affair shot to national attention. As a result, the head coach, along with three of five assistant coaches, quit. Given Kennedy’s leadership role as a coach, his inherent power over students, and the risk that some might feel that prayer after the game was school-endorsed, the school had no choice but to fire him.
The case pitted two American ideals against each other: the freedom to practice one’s religion, and the right to be free from government-imposed religion. These two principles fall under what lawyers like to call the “free exercise clause” and the “establishment clause” of the First Amendment to the US Constitution. But what these clauses actually mean is the subject of ongoing debate. There are those who would say that only a federal law declaring an official state religion would violate the establishment clause. Others, however, see an establishment clause violation whenever religion is mentioned by any public official.
Challenges to these twin values, which are both equally important for true religious liberty, predate the United States and its Constitution by a few millennia. In the Bible the Old Testament book of Daniel tells two stories. Both are Sunday or Sabbath School favorites, and both neatly and dramatically illustrate both compelled and prohibited religious practice. These are the stories known as “Daniel in the Lions’ Den” and “The Fiery Furnace.”
Christian children are introduced early to the story in Daniel 6, when the book’s namesake—an official in the court of King Darius—is condemned to be thrown into a lions’ den for publicly praying. The catalyst for this is the jealousy of other royal courtiers following Daniel’s promotion by the king. These spurned officials convince the king to issue an edict stating that no one should pray to any god for 30 days except to the king, upon pain of death. The target of this new law, of course, is Daniel, who is known for his habit of praying to his God.
One does not need a Harvard law degree to see how this would be a rather classic “free exercise” violation, had the First Amendment existed during the time of the Medes and Persians.
Three chapters earlier in the book of Daniel, we learn that King Nebuchadnezzar took a different approach. He built a golden image of himself, set it up in the plain of Dura, gathered all his government officials, and declared they had to bow down and worship the image when the music played—on pain of death. It’s hard to imagine a clearer violation of the establishment clause. The king is saying, “Here is a state-sponsored image: please bow down to it in worship or die.” Daniel’s three friends refuse and are punished by being thrown into a fiery furnace.
Put in biblical extremes, then, was the Bremerton School District acting like King Darius, threatening Coach Kennedy with the lions’ den—termination from a part-time job—if he dared pray like Daniel?
Or was the school district instead protecting high school students from a fiery furnace—less playing time—if they didn’t succumb to religious coercion and pray with their coach?
Thankfully, neither Coach Kennedy nor his students were threatened with an actual lions’ den or a fiery furnace—a fact that speaks to the effectiveness of both religion clauses of the First Amendment working together to nurture and protect the high level of religious tolerance we enjoy today.
The Balancing Act
But how to keep this peace? How should the lines be drawn between protecting free exercise and preventing state-sanctioned religious coercion? And did the Supreme Court get it right this time?
The answer to this question depends on which set of facts you want to emphasize. Coach Kennedy never claimed a desire or right to coerce or compel the students to pray with him. He claimed only a right for him, personally, to engage in a brief prayer at school in a manner in which he felt called by God.
Bremerton School District, for its part, never said Kennedy couldn’t pray—just that he couldn’t pray publicly. But is this a reasonable request? Would a teacher making the sign of the cross while praying before a meal be committing a fireable offense? If Coach Kennedy can be prohibited from making a demonstrative prayer, what about a teacher wearing a Muslim hijab or Jewish yarmulke?
Even for those who might take a less strict approach to the demands of the establishment clause, Coach Kennedy’s actions may give reason for pause. Students should feel free from religious coercion, either direct or indirect. Teenagers are acutely aware of the power of authorities around them and often change their behavior accordingly—even if it is simply to rebel. It seems reasonable to assume that teen athletes who are not getting as much playing time as they want or believe they deserve may feel pressure to religiously align with the coach. The choice may not, as it was for Daniel, be between abstaining from prayer and facing the death penalty, but for a high school football player the perceived threat of sitting on the bench might be just as effective.
For this reason, Kennedy’s earlier conduct—praying in the locker room and giving religious speeches on the field, for example—was problematic. If the school district had allowed him to continue, this would indeed have constituted a violation of the establishment clause. Had Kennedy refused to change what he was doing, the dispute about his termination would never have made it to the Supreme Court.
Just the Facts, Please
But Kennedy was not fired for leading locker-room prayer activities. Instead, he was fired because he prayed silently while kneeling on the 50-yard line. The Supreme Court said that doing so did not violate the establishment clause any more than would a teacher reading a Bible during lunch in view of students.
But for the dissenting justices, this wasn’t about a coach praying silently. It was about the prior locker-room prayers, the media coverage, the politicians coming onto the field after games, and the publicity Kennedy had attracted. In other words, a different set of facts than that relied on by the majority.
The dissent blamed Kennedy for the media attention since it was generated after a Facebook post that gained wide attention and was further fueled by his continued cooperation with the media. But would the dissenting justices—Sotomayor, Breyer, and Kagan—be as critical of a woman who generated nationwide publicity by posting on Facebook that she was about to lose her job for refusing to sleep with her boss?
Coach Kennedy’s Facebook post was protected both by the First Amendment and federal employment laws. It is hypocritical for the dissenting justices to blame the employee for publicizing what he reasonably and in good faith believed was discrimination. And threatening someone’s job for praying will inevitably upset certain sections of society.
Ultimately, this confusion of facts is the key weakness of not only the dissenting opinion but also of those who supported the school district in the dispute. To justify Coach Kennedy’s termination, it was necessary to point to facts beyond those the school district originally used to justify their decision—their fear of being sued for allowing Kennedy to pray silently after games on the field.
That the head coach and three of five assistant coaches quit because of the media firestorm around Coach Kennedy is not a relevant fact in the case. Consider a different scenario: What would happen if a coach in Alabama complained he was about to be fired for his sexual orientation, and the resulting media attention and public outcry caused the rest of the coaching staff to quit? Would the school district then be able to justify the termination of the coach because he “contributed to negative relations between parents, students, community members, coaches, and the school district”?
There’s little question that the attention around Coach Kennedy caused a lot of disruption. However, standing up for one’s rights is not a fireable offense. In fact, our laws say quite the opposite. Asserting our legal rights is specifically protected by both the First Amendment and federal civil rights laws.
Does this mean teachers and coaches are free to begin subtly pressuring students to convert to their own preferred religion or that school districts have no control over what its staff says? One needs only to look to the Kennedy case itself for that answer. There is no legal ambiguity around Kennedy’s locker-room prayers or religiously themed pep talks—prohibitions against these activities are so ingrained in the law that they were never challenged.
Bremerton School District failed across the board here. Its ignorance of what was going on in the locker room and on the field was nothing short of administrative malpractice. The school district then overreacted. Suddenly Bremerton schools were to become a religion-free zone where prayer could happen only in secret, similar to the time of King Darius.
The United States has, through the years, been remarkably successful in striking a balance between keeping people out of both the lions’ den and the fiery furnace. Many repressed minorities around the world would give anything to exchange their religious freedom challenges for those we engage with here.
We can keep our public institutions free from religious coercion without banishing all evidence of religion. The Kennedy decision has not heralded a new era of religious indoctrination in public schools, but rather drawn the line in a sensible way that allows employees to keep their faith and students to keep theirs.