Sports and Religion in the Supreme Court: Kennedy v. Bremerton School District, Feb 01, 2023

Abstract

Sports and Religion in the Supreme Court:Kennedy v. Bremerton School District, Feb 01, 2023 Cody Musselman (bio), Frank Klose (bio), Eric Bain-Selbo (bio), and Eric Stephen (bio) SUMMARY KEYWORDS Establishment Clause, prayer, coercion, Lemon test, football Background: During the 2021–2022 term, the U.S. Supreme Court heard a case about school prayer called Kennedy v. Bremerton School District, in which Joseph Kennedy, a high school football coach at a public high school in Bremerton, Washington, engaged in public prayer at the 50-yard line after football games. Kennedy had been praying at the 50-yard line since 2008, and what was initially a solo prayer changed over time into nearly the entire team joining him in prayer after shaking hands with the opposing team after every game. The school district feared his actions violated the Establishment Clause and would open up the school district to legal liability: that they could be sued for showing favor to a certain religion. The school district asked Kennedy to stop his public prayers and tried to accommodate his ability to privately pray. Kennedy refused and the school district put him on paid leave. Kennedy sued Bremerton School District, claiming his First Amendment rights to exercise his religion and free speech were violated. In a 6–3 opinion written by Neil Gorsuch, the Supreme Court sided with Kennedy. This case, about the separation of church and state, raised several questions: Is a public-school employee’s prayer during school sports activities protected speech? And if so, can the public-school employer prohibit it to avoid violating the Establishment Clause? Football in America Cody Musselman I’d like us to begin by talking about the significance of football to American identity. What’s the significance of Kennedy’s prayers happening on the 50-yard line at a football game versus some other kind of sporting event? Eric Bain-Selbo Football is the most popular sport in our country and so everything is magnified if it touches football in ways that it wouldn’t have been if this [End Page 50] had been happening at a lacrosse game. It would still be an incredibly important case, but I think that anything that touches football is going to have a heightened significance. Frank Klose I think regionally, it kind of varies the extent in which [high school] football is has significance. In terms of the mid-Atlantic region and city of Philadelphia, a lot of these big cities around here don’t have college football teams or high school football teams of significance. So, I don’t know if public prayer on the 50-yard line would even go noticed in the city of Philadelphia. But I wonder if the location has something to do with it. I think the culture in the city of Philadelphia, football isn’t big enough for something like that to even get noticed at the high school or college levels because of just where we are geographically. Eric Bain-Selbo If we think about the civil religion of the United States, football plays a really central role in that, as does Christianity. And in this case, we are clearly dealing with something that involves two institutions that are particularly important to a lot of Americans [Christianity and football]. Establishment Religion Cody Musselman Yes, speaking of how prevalent Christianity is in American culture, let’s discuss questions about establishment religion and the role of conservative Christians in pushing to make Christianity America’s establishment religion. Frank Klose I’m actually a little surprised that the Supreme Court would say it’s okay. There’s been a number of cases (including, let’s say, a religious sister—a Catholic sister—who is teaching in a public school who wears her religious garb) that don’t usually go this way because otherwise it would be seen as an endorsement of a religion by the state. But in Kennedy v. Bremerton the fact is that the coach was still essentially an agent of the state because Kennedy was employed by the state. I’m surprised by this decision. [End Page 51] Supreme Court precedent was that anybody giving the impression that the state...