“Amen!” Says Coach Joe

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“Fine Tuning” Episode 1 (Now with Practice Pointers!)

By John M. Sedor, Member, Sedor, Wendlandt, Evans & Filippi, LLC

Welcome to a new School Year and this year’s first SWEF (Sedor, Wendlandt, Evans & Filippi) Commentary.

While the year may be new for students, we will begin where we left off in May when we discussed a preview of the Case of the Praying Coach. When we last discussed Coach Joe, he was waiting for the Supreme Court to decide his case. And while you (and I) were fishing or otherwise enjoying our Alaska summer, the US Supreme Court answered Coach Joe’s prayers and, in doing so, “fine-tuned” the First Amendment.

This year, our theme will be “Fine-Tuning”: “to tweak, sharpen, calibrate; to make small changes to something to make it work better.” In that sense, “fine-tuning” is an elegant way to describe how legal doctrines are supposed to change over time. Small changes or “fine-tuning” allows legal doctrines to fit new situations while retaining the overall rule of law and respect for the law. Mixed in with our federal and state constitutions are equal parts precedent (from the past) and facts (from the present). This has been the recipe for fine-tuning our legal system since this American Experiment began.  

Let’s see how it works. The First Amendment to the U.S. Constitution has been around for close to 250 years. In addition to free speech, the First Amendment prohibits the Government from prohibiting the free exercise of religion (the Free Exercise Clause) or establishing religion (the Establishment Clause). A legion of cases has considered these clauses and created and modified tests to determine whether a violation has occurred.

Enter Coach Joe Kennedy – a football coach in Bremerton, Washington. After every game, Coach Joe went to the middle of the field, knelt, and prayed quietly for about 30 seconds. At times, others (including students) would join him. After giving him warnings, the Bremerton School District unemployed him after concluding that his prayers promoted religion and, therefore, could not be allowed under the Establishment Clause.

The 9th Circuit Court of Appeals  agreed. It concluded that Coach Joe’s prayers were not protected under the Free Exercise Clause because they occurred when he was serving as a government employee. In support of this conclusion, the 9th Circuit noted that Coach Joe only had access to the field because of his employment as a coach. The 9th Circuit also found that the District had to take action to stop the prayers to avoid violating the Establishment Clause.

On June 27, 2022, the US Supreme Court “fine-tuned” the First Amendment and held, 6-3, that Coach Joe’s quiet prayer on the field after the game was protected. The Supreme Court held that the prayer was protected by the Free Exercise Clause. In addition, the Court held that the District violated the Establishment Clause by firing him for giving the prayers. The Court reached these conclusions even though Coach Joe was working (as a coach) and only had access to the field because of his employment as a coach.

The Court found that all the football coaches were given some free time to do personal things after the game including visiting with friends, checking scores, and making personal phone calls. In other words, the coaches had some unrestricted non-duty time. Given this, the Court found that prohibiting Coach Joe from using his duty-free time to express or exercise his religious beliefs on his own was not neutral to religious expression and specifically targeted his religious expression (as compared to the non-religious personal activities of other coaches). The Court described the District’s actions as treating religious expression as “second-class” speech.

The Court also found that the District’s reliance on the Establishment Clause to forbid Coach Joe’s quiet prayer was misplaced. The Court rejected the idea that the District had to act if any reasonable observer (even if mistakenly) could see Coach Joe’s mid-field prayer as government endorsement of religion. In reaching this conclusion, the Court rejected the “Lemon Test” which had served as the way courts analyzed religion cases since 1971. The Court noted that “perception” of and “discomfort” with religious conduct are not sufficient to violate the Establishment Clause and that tolerating “speech or prayer of all kinds is part of learning how to live in a pluralistic citizenry.” Taking offense to speech or prayer “does not equate to coercion” under the Establishment Clause.

Coach Joe and his prayers were the factual catalyst for the U.S. Supreme Court “fine-tuning” the First Amendment. Of course, one person’s “fine-tuning” may be another’s major reconstruction. As has been the case for almost 250 years, whether this decision is found to be “fine-tuning” or major reconstruction will be determined over time. But as of June 27, 2022, Coach Joe’s Case is the law of the country on First Amendment religion cases.  

Practice Pointers

As we explore “fine-tuning” this year, we are going to provide a couple “Practice Pointers” at the end of each Commentary. These will be practical suggestions for you to consider. In light of Coach Joe’s Case, consider:

  1. Does your district have a policy or regulation related to employee religious expression? If so, you should review it to make sure it complies with Coach Joe’s Supreme Court case. Here’s the case: https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf
  2. How the Coach Joe Case will develop is unknown, but a key feature is duty-free work time (like Coach Joe had after the game). Alaska districts should be mindful that teachers (and most staff) have a thirty-minute duty-free mealtime. AS 14.20.097. Whether the Kennedy holding would apply to such time – allowing staff to express their religious beliefs through religious exercise – is not known but certainly plausible.
  3. Coach Joe’s prayers were silent or quiet. The Court differentiated Coach Joe’s prayers with prayers broadcast over the speakers or made a part of an agenda. Coach Joe’s case is not legal support for District organized religious expression.

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