Central to the Court’s 6-3 majority opinion, written by Justice Neil Gorsuch, was its determination that the coach’s on-field activities at issue were private speech and not government speech, despite Coach Joseph Kennedy’s ongoing duties as a public school employee. Contrary to the Appeals Court’s finding that “the facts and the record utterly belie Kennedy’s contention that the prayer was private and personal,” Justice Gorsuch concluded that the coach was acting on his own time and not in his official capacity:
During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands. We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. … [W]hat matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.
That reasoning, however, ignored many facts in the record, as well as the school’s important religious liberty interests as advocates, including BJC, explained.
The BJC brief in this case urged the Court to recognize the rights of public school students and their parents to be free of religious pressures from authority figures. As BJC Executive Director Amanda Tyler lamented following the ruling, the Court “focused solely on the religious exercise of one public school employee and not the kids and families, focused only on the free exercise/free speech clauses while severely limiting the Establishment Clause and its important protections for religious freedom.”
Importantly, the Court’s decision leaves in place its 2000 opinion in Santa Fe v. Doe, which held unconstitutional prayers delivered before a high school football game over a public address system. Justice Gorsuch distinguished the current case by pointing out that in Santa Fe many students “were required to attend games,” and were thus a “captive audience.” Using the public address system to broadcast prayers appears to remain a line public schools may not cross under this Court.
But as Justice Sonia Sotomayor explained in her dissent, which was joined by Justices Stephen Breyer and Elena Kagan, that standard does not go nearly far enough to protect religious liberty in the school setting:
[W]hile the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.
Justice Sotomayor has this exactly right and highlighted the many facts that the majority ignored or misstated in characterizing Kennedy’s prayers as private and quiet. No student on the field or parent in the stands celebrating the quintessential community ritual of high school football should have to weigh their participation against the isolating and offending threat of it turning into a religious spectacle.
This Court’s demolition of Establishment Clause protections is as damaging to religious liberty as it is unsurprising, given its record of disregard in recent years for safeguarding the separation of church and state. Those of us who care about religious liberty for all must continue to educate and advocate about the importance of keeping the government out of religion. Promoting religion in public schools – whether through direct coercion or subtle pressures – does no favors for either the church or the state.