The Daily - The Supreme Court Considers a Football Coach’s Prayers

Episode Date: April 27, 2022

Joseph A. Kennedy, a former high school football coach, was fired after he made a habit of going to the 50-yard line after his team’s games to thank God and to lead his players in prayer.On Monday, the Supreme Court heard his suit. The justice’s decision in the complex case could make a major statement about the role religion may play in public life.Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Coaching was his calling, Mr. Kennedy said. But after the school board in Bremerton, Wash., told him to stop mixing football and faith on the field, he left his job and sued.Members of the Supreme Court’s conservative majority indicated that Mr. Kennedy had a constitutional right to pray after games.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi. This is The Daily. On Monday, the Supreme Court heard a case that could change the way the country treats prayer in school. Today, my colleague, Adam Liptak, on what the case of a high school football coach might mean for freedom of religion and for freedom from it. It's Wednesday, April 27th. So, Adam, what's at stake in this case that the Supreme Court heard on Monday?

What's it about? This case is about a former high school football coach named Joseph Kennedy, who lost his job after he made a habit of going out to the 50-yard line after his team's games to thank God, to take a knee and say a prayer. And that firing raises all kinds of First Amendment issues. And Adam, how exactly did a case like this get to the Supreme Court? So I'll give you two kinds of answers, Sabrina. One is that the composition of the court has changed. And the current court with a six-justice conservative supermajority has been very receptive to claims of religious freedom. But also, and in fairness, this particular issue has not been settled, because both teachers and

students don't leave their First Amendment rights at the schoolhouse gate, as one Supreme Court decision put it. And there is a role for at least some private religious practice in schools. You can say grace before a meal if you're a teacher. I don't think that gets you in trouble. But the court has been wary of school prayer in other settings. And those settings, for the most part, are more public and can't be said to be someone's private prayer. Okay, so it sounds like the specifics of this case are pretty important. So tell me about them, Adam. Who is this coach and what was his story? So I wanted to find out more about Joe Kennedy. I knew he was a beloved member of his community, and I thought the best way to do

it was to go out and visit him in Bremerton, Washington, which is near Seattle. And we spent the morning together. Actually, you can see that big building right there, that lit up one across the water? Yeah. That was Harrison Hospital. That's where I was born. He gave me a tour of the town, which was also kind of a tour of his past, which was a really dark and difficult childhood. My parents, they adopted me at birth. They couldn't have kids, so they adopted a girl a year later. They adopted me. He was adopted by a couple who thought they couldn't have biological children, but later did. And then they didn't need my sister or I anymore, and we kind of got thrown by the wayside. And he wound up in foster care at the age of eight.

So I was pretty much a loner growing up and always in trouble. I jumped in and out of group homes and foster homes in this area. He bounced around. By the time he was 15, he was living on his own. You know, didn't have a place to stay. I did a lot of couch surfing. Lived in my car for a while. Barely graduated high school. And so I was trying to go into the Marine Corps. But he goes into the military.

He serves 20 years in the Marines. I needed to have that discipline. I needed to be able to belong to something. And that straightens him out. And he arrives back in Bremerton in 2006. Got it. So what happens when he gets back to Bremerton, his hometown? Well, he gets a job at the shipyard, and he becomes religious.

He hadn't had faith in his life up until then. But as he tells it, there's a crisis in his marriage. She didn't fully trust me. Even though we were married, she didn't fully trust me, and she kept putting up barriers to us, and this was going on for months. And one day in church... I was going to church, sitting there, listening to one of the messages, and it was like, I mean, my heart just started breaking. I'm looking over at my wife, and I can't reach her.

And I kind of broke down, and I went up to the altar and just lost it. I can't reach her. And I kind of broke down and I went up to the altar and just lost it. I'm falling like a baby and said, God, I need help. I can't do this. You help me with this, I'm in forever. Just totally surrendered myself to him. He has a religious experience and he finds clarity. I was up running up this road.

So a couple years later, shirt. He said, hey, did you go to Bremerton? Did you play all this? And I told him my background. I was a wrestler. And he says, we're looking for coaches. He's offered a position as an assistant football coach at Bremerton High School. They offered me the job on a Friday. And I said, well, give me the weekend to think about it. If you know, it's a huge commitment. And I didn't know if this was what I was supposed to be doing. He's already got a full-time job. He's not sure he wants to take this on. The stipend is quite modest. It's like four or five thousand bucks for the year.

It's about seven cents an hour. And as he's thinking about over the weekend, he's watching TV. Don't flip it to the channel. It's about midnight. And he stumbles on a movie, a kind of Christian football movie. And it was called Facing the Giants. And in that movie, he sees a coach who's committed to bringing his faith to the football field and thanks God.

After each game, win or lose. And Kennedy says, this movie hits him like a thunderbolt. God came down and just gut punched me and answered the question of, am I supposed to coach? Absolutely. It's a message from God that he's meant to be a coach. He might as well just walked up and say, you know, here's your whistle, go play. And he takes the job, and he's good at it. And part of the reason he's good at it

is because a lot of these kids are troubled, come from broken homes, and he does a great job in mentoring these young men. Everything I went through, you know, being in group homes and foster homes and stuff like that, you see the best and worst in people. The strongest kids that you could possibly imagine

going through the most horrific things. So that made perfect sense for me to be able to relate to these kids. And the whole, you need to find out what your calling is. Well, I thought I did. I was a Marine, but little did I know that it was this. And as in the movie, he starts praying after games. At first he says he's out there by himself.

And then a couple of the kids came over months later. They said, hey coach, what are you doing out there? And I said, just thanking God for what you did. And they were like, well, can we join you? And I said, well, yeah. I mean, it's America. It's a free country. You can do whatever you want to do. I mean, it wasn't all the time.

Because if you lose by 60 points, let me tell you, the kids do not want to come out and give thanks for anything. And at times, he leads the students in prayer. At times he leads the students in prayer in the locker room. And he does this for years and years. Did anyone object? No. I mean, I had parents go, hey, what are you guys doing out there?

And I said, well, I was just thanking God. And they were like, hey, I don't want my kid doing that. And I'm like, that's fine. It was, he says, never mandatory. He took no action. He didn't express favoritism to people who decided to pray with him or not. But nonetheless, here you have this public high school coach engaging in not only private, solitary prayer, but also leading students in prayer. There's no question that this coach is popular, he's effective, he's beloved, and he's praying.

And how does he get in trouble? What happens? The school district apparently was unaware that any of this was happening until a coach on an opposing team says to the Bremerton High School principal, you know, I think it's really neat you let the coach pray on the 50-yard line. And they go, we what? And there starts to be some negotiations and recriminations, and it goes ugly pretty fast. So what starts to happen, Adam? Well, the school writes him a letter and says, we don't object to private prayer, but it can't interfere with the coach's duties or involve students. And the coach says he'll abide by that. And I talked to my team and told them,

hey, I'm not going to be praying with you guys. As you guys go to do your fight song, I'm going to do my prayer. He says he'll tell his students they can't come out on the field with him, but he still wants to come out on the field. They weren't really happy with it, but I said, hey, this is the way it's going to be. It has to be this way. We don't need any more trouble here.

At the same time, the coach publicizes his dispute with the school district, and this becomes a thing. Had all these news vans parked all the way up and down the road here waiting to do the 11 o'clock or whatever it was. So that when he goes out to pray after getting this letter, there's a ruckus. There's a state lawmaker comes to pray with him. Students from the opposing team come to pray with him.

And there's this vivid picture of, I don't know, 30 people on their knees in the middle of a football field. Wow. Suddenly doesn't look like he's complying. Yeah, but to hear the coach tell it, what's he supposed to do, run away? All he wants to do, he says, is offer his prayer. I took a knee, and I had a really intense talk with God at that time. Because I was like, is this me that's doing this? Am I doing the right thing?

I mean, I was questioning everything. I didn't want this big old thing. I just wanted to be a football coach. And so I said, God, I'm't want this big old thing. I was just wanting to be a football coach. And so I said, God, I'm never going to fail you again. I'm always going to give you the glory, and I'm going to do it here no matter what. I don't care if it costs me everything. And then there are a couple more games at which he prays, which are not nearly as wild. And then the school district kind of has it with him, puts him on administrative

leave. It gives him the first bad performance review he's gotten in eight years. And he doesn't apply for reinstatement in the 2016 school year. He remains a very popular figure in the community, year. He remains a very popular figure in the community, which almost uniformly backs him. So a lot of people were here and witnessed actually what was going on. And they know who I am. They know I'm not that preachy guy trying to, you know, get these kids to join the cult or whatever. It's me. So it was never an issue with anything, and they know that. In talking to both sides, it's a little head-scratching why this has turned into such a big litigation. You would think that maybe they could have found some way

to accommodate the coaches' faith and the school's needs. But Kennedy sues, arguing that his First Amendment rights were violated. And the case has been kicking around the courts ever since, and just now reached the Supreme Court for a very interesting argument. We'll be right back. Okay, so Adam, on Monday, oral arguments happen in this case, and each side gives their case, and the coach's side argues that he was just exercising his constitutional right to practice his religion. And the other side is saying, no, this is a public school. You can't lead kids in prayer.

We were justified in firing you. So what happens? Well, there's two competing ways of thinking about this, Sabrina, and the court grappled with both of them. One of them is to ask the question of what capacity was the coach speaking in? Was he a private citizen who happens to A private citizen who happens to be on the job? Or is this the kind of exercise, the kind of speech, which is going to seem to the reasonable observer to be the school district endorsing religion, which is forbidden by the Establishment Clause of the First Amendment,

which says the government shouldn't establish religions. Okay, so if you think he's preying on the football field with his players in his capacity as coach, then essentially that's illegal. But if you see it as his own private speech, he's just doing it individually, not in his capacity as coach. That's protected. Right. And he might slice it a little more finely yet, which is to say, if he wants to go to midfield and say his prayer and students happen to gather around him, he doesn't have to get up and run away.

Right. So this is a significant question that justices are trying to get their heads around to try to decide whether this is private prayer, private speech, or the kind of public spectacle that the school cannot but be associated with. Let me just give you a certain number of hypotheticals. And tell me what's, a certain number of hypotheticals. And tell me when it becomes private and when it's still public. And because they're lawyers, what they do is pose hypothetical questions. A teacher begins each of her classes with a silent prayer and an audible prayer. So Justice Sotomayor, for instance, says, what if a teacher is reading a Bible before the bell rings, before class?

She's reading it out loud, before the bell. What if she's reading it aloud after the bell rings? And you see how it's hard to know just where to draw the line. Is it the bell that makes it within the time or not within the time? Justice Kavanaugh wants to know. When teams are out there and the coach very publicly makes the sign of the cross, can the school fire the coach for that? And then there were a bunch of questions which suggested that the school might treat

religious speech less favorably than political speech. If the coach, instead of taking a knee for prayer, took a knee during a national anthem because of moral opposition to racism, how would your school district respond? With justices asking, what about waving a Ukrainian flag or protesting climate change? Would the school board have come after somebody for that kind of stuff? And Justice Sotomayor asks a telling question. Why can't the school fire a coach who decides to put a Nazi swatshipper on their arm and go to the middle of the field and pray. And Paul Clement, the lawyer for Mr. Kennedy, says, well, first of all,

that might be one of the rare cases where you question the sincerity of the religious belief, because I'm not really aware of that religion myself. But assuming it's a sincerely held religious view, he says there's no basis to discriminate on the basis of religion. And so the school might have to address that through a neutral policy, avoiding disruption. This gives you a sense of the fine lines the court is having to figure out how it's going to draw. Okay, so Adam, if I understand correctly, the point here between public and private is that if Kennedy's out there publicly doing this prayer with the kids in what feels like his capacity as coach, he'd be seen as endorsing his faith on behalf of the school. And that puts the school in violation of the law separating church and state. So that's why the coach's side is trying to lay out here that he was in no way representing the school in this prayer, that that just wasn't what was going on. It was a totally private act.

So that's what they say. But at the same time, there's some complicating facts. As I mentioned, he had a longtime practice of praying with students in the locker room. And nobody thinks that's acceptable. In fact, neither the coach nor his lawyers now defend that conduct. And he also, and this is a little odd if you really mean for this to be a private solitary prayer, publicized his dispute with the school district and drew attention to it and crowds came and the press covered it. And that's also intention with this notion that this is purely private

conduct. Right. And you've described this guy as very much motivated by his faith, right? This is a central part of his life and it's a central part of his coaching. So that also suggests that, in fact, this is not a purely private act. That's right. And I think the coach would candidly say that he would like to help and mentor these kids any way he can, including by drawing on his faith, but he's willing to, he would say, at least on the job, conform to whatever the law requires. And in his view, the law does not permit praying in the locker room, but it does permit praying on the 50-yard line and not encouraging but not discouraging students from praying with him.

But the coach's lawyers also say that, listen, nobody thinks he was speaking on behalf of the school. The school was very explicit that they didn't want him to do this. That's what led to the fight. So whatever might be said about his praying in the early years, by the time this becomes an issue, the school has effectively, he would say, issued a disclaimer. We have nothing to do with this guy. He's on his own. Right. I mean, in point of fact, they refused to renew his contract, and there's a huge fight with them precisely because he's raising this prayer issue. So it certainly doesn't look like his prayer is backed by the

school or in any way representing it. That's right. And I think that's how many of the justices thought about it. And that made you think that this first argument, this first way of thinking about the case as about endorsement is likely to favor the coach's side. But there was a second issue in the case of coercion, and that may favor the other side. So, Adam, explain that. Explain this idea of coercion. So, Sabrina, there are religious rights on both sides here.

There's the coach's religious rights, which we've been talking about, but there's also the student's religious rights. I mean, really, why? Why can the school discipline him? As Justice Kagan explained early in the argument. That if you look at our prayer cases, the idea of why the school can discipline him is that that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion.

Because he is such a popular figure, students may well feel compelled to join him in prayer, particularly after a game on the 50-yard line, which is when coaches often say important things. Okay, so the argument here, it sounds like, Adam, is that it doesn't really matter if the coach himself thinks it's just a private thing. That what matters is how the players, the kids, are perceiving it. If they feel pressure to participate in this prayer because this is their coach, he's an important guy, he holds power over them, that pressure violates the player's freedom.

Kind of like if your boss asks you out on a date, doesn't say it's a requirement, but you kind of feel pressure to go. Right. Even Justice Kavanaugh, who is himself a coach and who, in an earlier stage of this case, indicated sympathy for Coach Kennedy's position and is a likely vote for Mr. Kennedy, mused at some length. at some length. What about the player who thinks, if I don't participate in this, I won't start next week?

Or the player who thinks, if I do participate in this, I will start next week? And the player wants to start. So that's where I think making a clear message that that's inappropriate, that this doesn't matter for those purposes. That's how you deal with those problems. And if there is a coach or a teacher— But how will you ferret that out?

Because every player is trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, etc. I think the school district, if it has that... You know, the coach is an important figure, and kids want to do what the coach says, and this is a really difficult issue, he said. The way to deal with that is you punish... If any coach or teacher does it, shame on them, and they should be punished. And way to deal with that is you punish, if any coach or teacher does it, shame on them and they should be punished. And you make clear that that's not supposed to happen and can't happen in this school. I guess the problem at the heart of it is you're not going

to know because the coach is probably not going to say anything. Like the reason I'm starting you is that you knelt at the 50 yard line. You're never going to know. And that leads to the suspicions by parents, I think. I'm just playing out what the other side is saying here. I think at the end of the day, he will probably vote with Mr. Kennedy, but he was struggling. Adam, did you ask Kennedy about this idea of coercion, if he felt that kids maybe had felt pressure to go along with this? Yeah, I sure did, Sabrina.

Is there any sense that some of them might have felt they had to participate where they otherwise wouldn't have wanted to? And he had a stock answer. I coached for eight years, and there was about 60 kids on the team each year. And I questioned, I challenged every news reporter to the school. I said, find somebody, find somebody. Right. It was never a big deal. It wasn't even a, it wasn't even a small deal. It was nothing. Find me one kid who felt pressured, who felt coerced. So did you find a kid, Adam? I didn't, and other news reporters to whom he posed this question also did not. But I did talk to a parent who said that that's in a way the wrong question, that we shouldn't have a system

in which there's a risk of coercion, that there's tacit coercion, there's implicit coercion. There's coercion maybe of kids who don't realize that they're being coerced into doing something religious because this is their coach, popular figure, and if he's doing it, they're going to think it's right. So Adam, what do you think is going to happen in this case? So Adam, what do you think is going to happen in this case? I think a ruling in the coach's favor is very likely. To get there, they're going to have to do some work. I suspect that when they took the case, they thought it was an easy case. It turned out to be a little harder, but not so hard that they're going to say that Mr. Kennedy is not allowed to pray on the 50-yard line and is not allowed to get his job back.

So Adam, as you say, this is really a case about religious freedom. But it's about religious freedom on both sides. One is freedom to practice your religion in a broader context. That's the coach. And the other is freedom from religion, that's the players. And so if the coach wins, that's the court favoring freedom of religion over freedom from religion. Is that right? That's right. And this is a court that's very sympathetic to claims of religious freedom. The decision that I'm anticipating

would cut in a different direction from decades of decisions on school prayer, where the court has really disfavored either compelling students to pray or having them listen to prayers at graduation or even student-led prayers after students are elected in a campaign organized by the school that was broadcast over loudspeakers at football games. So in all of those cases, school prayer loses. And if we have a case where school prayer wins, not exactly the same issue, of course, but still, it's going to represent yet another change in direction by a court that in this term alone has three other major religion cases. It's already decided one of them, saying that a death row inmate in Texas has the right to pray with and be touched by a spiritual advisor.

And we'll soon decide cases on whether a religious group can fly its flag in front of the Boston City Hall and whether a tuition program in Maine has to pay for religious schools if it's also paying for other private schools. So this is a court now with the lopsided, supercharged, sixth justice conservative majority, which is moving in the direction of a larger role for religion in public life. of a larger role for religion in public life. Adam, thank you. Thank you, Sabrina.

We'll be right back. Here's what else you need to know today. On Tuesday, new federal health data showed that about 60% of Americans, including 75% of children, had been infected with the coronavirus. The gain in population-wide immunity may offer at least a partial defense against future waves of the virus. Officials said that the data may mark a new phase in the pandemic in which infections may sometimes be common

but will cause less harm. And defense officials from 40 allied countries gathered at an American airbase in Germany and pledged long-term aid and fresh supplies of weapons to Ukraine. As you know, I came here after traveling to Kiev with my friend, Secretary of State Lincoln. U.S. Secretary of Defense Lloyd Austin said the officials from Australia, Belgium, Britain, Italy, Israel, and other countries had agreed to form what he called the Ukraine Contact Group and would meet monthly to ensure they, quote, strengthen Ukraine's military for the long haul. Germany, also part of the group, said it would send dozens of armored anti-aircraft vehicles to Ukraine, a major policy shift for a country that had wavered over fear of provoking Russia. Today's episode was produced by Ricky Nowetzki, Aastha Chaturvedi, and Rochelle Banja. It was edited by Lisa Chow and Paige Cowett,

contains original music by Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brumberg and Ben Landsverk of Wonderly. that's it for the daily i'm sabrina tavernisi see you tomorrow