The conservative majority on the U.S. Supreme Court on Monday appeared to be leaning in favor of a Bremerton, Washington, football coach who prayed on the field after games, despite his school district’s instructions to stop. 

The case, , centers on whether the coach’s prayer amounted to government speech and, therefore, whether it violated the Constitution’s separation of church and state. Joseph Kennedy, the coach, argues he was unfairly put on leave for his actions.

In arguments Monday, Justice Brett Kavanaugh noted that the coach’s prayer was “not audible to all players.”

“They’re not all there,” he said. “They don’t have to be there. It’s not a team event.”

The case is the second focusing on schools and religion the court has heard this term, with a conservative supermajority on the bench leaning toward fewer restrictions on religious liberty. In December, the justices heard oral arguments in a over public funding for private religious schools.

Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs,  said that he doesn’t expect five justices to lean the district’s way, especially since this was a case that four of the conservative justices signaled they wanted to hear when Kennedy first petitioned the court in 2019.

John Taylor, a law professor at West Virginia University, added that it’s not just the most conservative justices on the court — Samuel Alito, Clarence Thomas and Neil Gorsuch — who see their role as “protecting conservative Christians from what they regard as oppression by the liberal, secular order.” But Brett Kavanaugh and Amy Coney Barrett “also sound the same themes on occasion.”

In Monday’s hearing, the justices posed a variety of hypothetical scenarios to both attorneys to get at the extent of a school employee’s religious freedoms under the First Amendment and what to do when exercising those rights infringe on student freedoms. Justice Brett Kavanaugh asked if an employee could make the sign of the cross, for example, and Justice Sonia Sotomayor asked if the district could fire someone who wore a Nazi swastika on their arm if they said it was part of their religion. 

Richard Katskee of Americans United for Separation of Church and State, representing the district, called Kennedy’s prayers a form of coercion, adding that students worried they would lose playing time if they didn’t participate and that the coach even “announced in the press that those prayers are how he helps these kids be better people.”

Justice Elena Kagan, one of the three liberals on the court, said the district had a right to discipline the coach because even if he didn’t directly threaten to sideline players who didn’t participate, the activity puts “undue pressure” on students who have different beliefs or have no religion. 

“We’re worried that the students will feel, ‘He gets to put me into a football game or not. He gets to …give me an A in math class or not,’ ” Kagan said. “This is a kind of coercion that’s improper for 16-year-olds.”

The main question in this case, Taylor said, is whether the court will try to characterize the coach’s actions as completely private or “take a broader swing at Supreme Court precedents.”

Paul Clement, attorney for First Liberty Institute, a nonprofit law firm representing Kennedy, argued before the court that the district would have a hard time making a case for coercion because it disciplined him for two games in which students didn’t participate in prayers. 

He added that the district’s argument focused on whether officials might appear to be endorsing the prayers because they occurred at a school football game. But he likened the coach’s prayers to those of soccer player Mohamed Salah and football player Tim Tebow.

“Right after Tim Tebow scores the touchdown, he’s absolutely the center of attention, yet he engages in a religious exercise,” Clement said. “It’s private, it’s permissible and the government can’t stop it.” 

The justices made several references to the so-called Lemon test, which stems from Lemon v. Kurtzman, a 1971 case on church-state separation. The court in that case held that allowing religious expression is a form of endorsement, or establishment. But some of the justices noted that the standard is no longer relevant. 

“I don’t think that is a test anymore,” Justice Alito said. “We haven’t applied that in two decades, and so I don’t think that helps … on the school cases.”

Note: An earlier version of this story, including the headline, incorrectly stated that Joseph Kennedy was fired by his school district for praying after football games.

The district said students felt pressured to join Kennedy’s moments of prayer. They argued that because the coach was on the job, officials would have appeared to be endorsing the activity, putting them at risk of violating the First Amendment’s separation between church and state.

The decision to hear puts yet another case on schools and religion before the court’s conservative supermajority. The court has already heard oral arguments this term in a Maine lawsuit over public funding for private religious schools. At stake in Kennedy is the extent to which public school employees can practice their religion at work. Attorneys for the district said officials were protecting students’ religious freedom by ending what one called a “pray to play” arrangement. But Kennedy’s legal team warns that a decision in favor of the school district could make any expression of religion at school, such as wearing a yarmulke or bowing one’s head in the lunchroom, grounds for dismissal. 

“There is clarity that the court really needs to provide here,” said Jeremy Dys, an attorney with First Liberty Institute, a nonprofit law firm representing Kennedy. “There’s always tension between the administrators trying to stamp out religion, and coaches and teachers who want to engage in their religious beliefs.”

This is the second time Kennedy’s case has reached the high court. The court opted not to hear it in 2019 because the facts regarding Kennedy’s dismissal were unclear. But even then, four justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — signaled that they would be open to hearing it in the future, saying the lower court’s “understanding of the free speech rights of public school teachers is troubling.”

That invitation could bode well for Kennedy this time around, said Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs. 

“My initial reaction is that the court is going to side with Kennedy since some of the justices already laid out the legal roadmap for him a couple years ago,” he said. 

in 2019 that should Kennedy get another shot, the case could lead to a decision that “moderately” expands educators free speech rights or to a “truly landmark” ruling regarding how far governments have to go to accommodate employees’ religious practices.

Since then, a sixth conservative, Justice Amy Coney Barrett, has joined the court, leading some public school supporters to agree that the justices will lean Kennedy’s way.

“I think, given the makeup of the court and their decisions thus far on religious freedom, that the district will not be successful,” said Sasha Pudleski, advocacy director at AASA, the School Superintendents Association. “But I hope I’m wrong.”

In 2020, the court ruled in , that excluding a religious school from a tax credit scholarship program simply because it was religious was unconstitutional. Last year, the court ruled unanimously that a Catholic social services agency, had a right to exclude same-sex couples from becoming foster parents. And while the court has not yet ruled in the Maine religious school choice case, conservative justices appeared ready to side with the plaintiffs during oral arguments in December.

‘Impressionable students’

The Kennedy case gives the court another chance to weigh in the issue of religious freedom. But the Bremerton district argues that students’ religious freedoms were compromised, not Kennedy’s. 

“No student should ever be made to feel excluded — whether it’s in the classroom or on the football field — because they don’t share the religious beliefs of their coaches, teachers or fellow students,” Rachel Laser, president and CEO of Americans United for the Separation of Church and State, which represents the district, said in a statement. “This case is about protecting impressionable students who felt pressured by their coach to participate repeatedly in public prayer.”

The district offered to give Kennedy a private space on campus to express his Christian beliefs, which included giving thanks after games. But Kennedy turned them down and publicized the fact that he was going to continue his prayers.

For that reason, the district argued that the coach “was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature,” according to the lawsuit.

The 9th Circuit Court of Appeals, ruling in favor of the district, looked to a 2006 Supreme Court decision, in making its decision. In that case, the court said governments can discipline public employees for what they say while they are performing their jobs. 

Laser, with Americans United, urged the Supreme Court not to “fall for” the argument that Kennedy was praying silently. 

But First Liberty Institute, in its appeal to the court, argued there’s a difference between government speech and private speech, and that Kennedy was still engaging in personal prayers. To suggest that everything Kennedy did while at work was government speech, they wrote, is an “overbroad job description” that other courts have rejected.Republican attorneys general from 24 states agreed. In , they predicted “grave effects on public employees and employers alike, especially within the realm of public education” if the lower court ruling stands.