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Correction appended

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鈥檚 instructions to stop. 

The case, , centers on whether the coach鈥檚 prayer amounted to government speech and, therefore, whether it violated the Constitution鈥檚 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鈥檚 prayer was 鈥渘ot audible to all players.鈥�

鈥淭hey鈥檙e not all there,鈥� he said. 鈥淭hey don鈥檛 have to be there. It鈥檚 not a team event.鈥�

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鈥檛 expect five justices to lean the district鈥檚 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鈥檚 not just the most conservative justices on the court 鈥� Samuel Alito, Clarence Thomas and Neil Gorsuch 鈥� who see their role as 鈥減rotecting conservative Christians from what they regard as oppression by the liberal, secular order.鈥� But Brett Kavanaugh and Amy Coney Barrett 鈥渁lso sound the same themes on occasion.鈥�

In Monday鈥檚 hearing, the justices posed a variety of hypothetical scenarios to both attorneys to get at the extent of a school employee鈥檚 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鈥檚 prayers a form of coercion, adding that students worried they would lose playing time if they didn鈥檛 participate and that the coach even 鈥渁nnounced in the press that those prayers are how he helps these kids be better people.鈥�

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鈥檛 directly threaten to sideline players who didn鈥檛 participate, the activity puts 鈥渦ndue pressure鈥� 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,’ 鈥� Kagan said. 鈥淭his 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鈥檚 actions as completely private or 鈥渢ake a broader swing at Supreme Court precedents.鈥�

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鈥檛 participate in prayers. 

He added that the district鈥檚 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鈥檚 prayers to those of soccer player Mohamed Salah and football player Tim Tebow.

鈥淩ight after Tim Tebow scores the touchdown, he’s absolutely the center of attention, yet he engages in a religious exercise,鈥� Clement said. 鈥淚t’s private, it’s permissible and the government can’t stop it.鈥� 

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. 

鈥淚 don’t think that is a test anymore,鈥� Justice Alito said. 鈥淲e haven’t applied that in two decades, and so I don’t think that helps 鈥� on the school cases.鈥�

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.

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