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.

The district said students felt pressured to join Kennedy鈥檚 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鈥檚 separation between church and state.

The decision to hear puts yet another case聽on schools and religion before the court鈥檚 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鈥� religious freedom by ending what one called a 鈥減ray to play鈥� arrangement. But Kennedy鈥檚 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鈥檚 head in the lunchroom, grounds for dismissal.聽

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

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

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

鈥淢y 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,鈥� he said. 

in 2019 that should Kennedy get another shot, the case could lead to a decision that 鈥渕oderately鈥� expands educators free speech rights or to a 鈥渢ruly landmark鈥� ruling regarding how far governments have to go to accommodate employees鈥� 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鈥檚 way.

鈥淚 think, given the makeup of the court and their decisions thus far on religious freedom, that the district will not be successful,鈥� said Sasha Pudleski, advocacy director at AASA, the School Superintendents Association. 鈥淏ut I hope I鈥檓 wrong.鈥�

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.

鈥業mpressionable students鈥�

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

鈥淣o student should ever be made to feel excluded 鈥� whether it鈥檚 in the classroom or on the football field 鈥� because they don鈥檛 share the religious beliefs of their coaches, teachers or fellow students,鈥� Rachel Laser, president and CEO of Americans United for the Separation of Church and State, which represents the district, said in a statement. 鈥淭his case is about protecting impressionable students who felt pressured by their coach to participate repeatedly in public prayer.鈥�

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 鈥渨as not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature,鈥� 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 鈥渇all for鈥� the argument that Kennedy was praying silently. 

But First Liberty Institute, in its appeal to the court, argued there鈥檚 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 鈥渙verbroad job description鈥� that other courts have rejected.Republican attorneys general from 24 states agreed. In , they predicted 鈥済rave effects on public employees and employers alike, especially within the realm of public education鈥� if the lower court ruling stands.