August 6, 2021
Kneeling has become a noted feature of sporting events as athletes have adopted it as a form of protest against injustices. Of course, kneeling is also a common manifestation of religious devotion, and athletes sometimes kneel in prayer before games, after a play, or when the game is over to ask for help or express gratitude.
Last year, the Deseret News ran an inspiring story about football players from Brigham Young University and Boise State University kneeling together after a game for a voluntary prayer. Invited by a pastor who led prayers for some Boise State players after games, many on BYU’s team joined. The story highlighted shared faith and sportsmanship:
Holding hands with an opponent, even one that just beat his team badly, is natural for Boise State’s [cornerback Avery] Williams.
“That’s pretty much a no-brainer for me,” he said. “We all understand that our faith is much bigger than football. At some point players are going to have to hang up the cleats and we’re not gonna be playing at some point, but faith continues and faith goes on and everyone realizes that. That that’s why it’s not, ‘Oh, am I gonna hold my teammate’s hand?’ or ‘Am I gonna really hold an opposing player’s hand?’ It’s a no-brainer. Faith is much bigger than this sport.”
Not everyone found the group prayer inspiring, however. Referencing the earlier story, a group called the Freedom from Religion Foundation sent a letter of protest to the president of Boise State. The letter claimed: “Public school athletic teams cannot appoint or employ a chaplain, seek out a spiritual leader for the team, or agree to have a volunteer team chaplain.” That claim was disputed by legal scholars, but the school did distance itself in some ways from Pastor Mark Thornton, who “had been serving as the team’s informal, volunteer chaplain.” The Deseret News reported, “Thornton will continue to be available to the team but he will not be called a chaplain and will have new limitations on his access.”
Now it appears the Supreme Court will be asked to settle a dispute stemming from another postgame prayer. This prayer was offered by a high school coach in Washington who had a practice of kneeling and offering a silent prayer after players had left the field following a football game. This practice continued for seven years, until the school received not a complaint, but a compliment from a school administrator about the coach’s positive example.
The school superintendent subsequently directed the coach, Joe Kennedy, to stop these prayers. The district ultimately announced it had placed the coach on leave because of his “refusal to comply” with “directives that he refrain from engaging in overt, public religious displays on the football field while on duty as a coach.” His contract was not renewed, so his coaching career ended in 2015.
Kennedy challenged this action, alleging a violation of his religious freedom. A federal district court dismissed his claim and the 9th Circuit affirmed. In 2018, the U.S. Supreme Court declined to hear the case, so it returned to the district court, which again ruled against the coach, followed by another 9th Circuit loss.
When the Supreme Court declined to take the case, four of the justices expressed concern about the earlier lower court rulings. Writing for this group, Justice Samuel Alito noted that the lower courts still needed to find out some critical facts that could affect the outcome of the case. Alito went on to criticize the 9th Circuit’s interpretation of relevant law: “the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students.” Because of this,
if teachers are visible to a student while eating lunch, they can be ordered not to engage in any “demonstrative” conduct of a religious nature, such as folding their hands or bowing their heads in prayer. And a school could also regulate what teachers do during a period when they are not teaching by preventing them from reading things that might be spotted by students or saying things that might be overheard.
Alito went on:
What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way. … The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.
Coach Kennedy’s attorneys will again seek review by the Supreme Court. This could provide the court an opportunity to clarify what rights public employees have to privately act on their beliefs. That clarity would be helpful for employers and employees alike.
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