Elizabeth Cavell: Coercive prayers are still unconstitutional
This column first appeared in the Seattle Times on Sept. 5.
By Elizabeth Cavell
On Sept. 1, Coach Joe Kennedy returned to the Bremerton High School football field and, as always, he brought publicity with him. Hyping his return, First Liberty — the conservative Christian legal outfit behind him — launched the “First Freedom Challenge: Take a Knee with Coach Kennedy” campaign. The challenge called on “people of faith from coast to coast” to make it “a national night of prayer” by joining Kennedy in his postgame short, private, personal prayer; by sharing a video explaining why prayer is important to them; and challenging others to pray at football games at public schools. Kennedy gave an interview to The Associated Press the morning of the game and his memoir comes out in October. If all this sounds not so personal and private to you, you’re not alone.
This doublespeak is no accident. In its 2022 ruling in Kennedy’s favor, the ultra conservative Supreme Court majority based its decision on a fictional version of the facts. The court claimed that all Kennedy sought to do was engage in “short, personal, private prayer” at midfield after games. However, as Justice Sonia Sotomayor put it in her dissent, “the record before us . . . tells a different story.”
In truth, for years Kennedy sermonized the team in the locker room before games, and stood at the 50-yard line afterward, holding up the helmet of each team, beckoning students to kneel around him for prayer. During the 2015 football season, administrators learned of this practice and were rightly concerned about the pressure that coach-led prayers placed on players as well as the potential liability threatening the Bremerton School District.
The district required him to stop praying with his players, but repeatedly sought to accommodate Kennedy’s desire to pray, even on duty, in a way that did not exert pressure on players and did not interfere with his official school duties — in other words, short, private, personal prayer. Kennedy insisted through lawyers at First Liberty that he would continue to pray publicly at midfield. Then he went on a national media tour, crying persecution by the district and riling up supporters. The effect was anything but short, private and personal — the moment the next game ended, crowds jumped fences to swarm Kennedy as he defiantly knelt and prayed at the 50-yard line in front of the cameras.
In the Supreme Court’s telling, there was no “evidence that students felt pressured to participate in these prayers.” The reality was quite different. One student’s experience was presented to the court in an amicus brief. He recalled, “I always listened and did as I was told. I wanted to play football and treated [Kennedy’s] prayer time as any other order from a coach such as to exercise, attend study hall, or execute a play.”
The court casually ignored the harm Kennedy caused to players and wrote the indirect coercion they experienced out of existence. But the power dynamic between players and coaches is inherently coercive. Players do what the coach wants, on and off the field, whether or not they receive a direct command or verbal threat of punishment. Players know that if they please the coach, they get to play.
That same player told the court how Kennedy’s prayers took all of the focus away from players. As he recalled, “To this day, I don’t remember who we played or if we even won, . . . all I remember is the aftermath of that game.”
Kennedy’s case undermined the cherished principle of separation between state and church. But the court’s insistence that the coach’s practice was “private, personal, prayer” means that his performative, coercive prayers with players remain unconstitutional. Students still have the right to a public school experience free from religious coercion. Kennedy’s antics haven’t changed that.
Elizabeth Cavell is associate counsel at FFRF.
