Scholastic Football Coaches Praying, Constitutional?

It is common for athletes at all levels to offer a prayer or to give thanks to God.  Sometimes coaches pray too.

But is it constitutional for a public high school football coach pray on the 50 yard line after the game?  I am going to argue that I think it is constitutional and not an establishment violation or a violation of church and state.

Praying on the

Early in the 2015 football season, the Bremerton School District started investigating the post-game practices of Bremerton High School Assistant Football Coach Joe Kennedy for possible violations of district policy.  Mr. Kennedy prays before the game with students and coaching staff in the locker room and he prays “after games on the 50-yard line,” according to King5 News. In fact, sometimes players joined him (as can be seen from the video below).  There are conflicting statements on whether Mr. Kennedy asked students to join him to pray after games.

Bremerton School District stated in a letter to Mr. Kennedy (available below) that his praying after football games violated “fundamental constitutional rights.”

Much of Bremerton’s argument rests upon Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000). In Santa Fe the school district created a policy in which students voted whether religious invocations should be given before football games, and if so, who should deliver it.  The Court said “this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.1  Furthermore, the District used a hands-off approach and did nothing to disassociate itself from the religious invocations, creating a situation where “the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion.”2

The Districts’ letter to Mr. Kennedy provided an itemized list of what he could and could not do concerning religious activities and expression in the future.

Supporters of the District say that the Establishment Clause calls for the government to stay out of religion. “So we have powerful law — consistently upheld by the U.S. Supreme Court — preventing the government from telling us how or how not to worship. It basically says government must be neutral and cannot endorse or disapprove of any religious activity. “3  The newspaper’s Editorial Board reasons that if an employee leading a prayer during a school activity, the government is no long neutral, and is establishing a religion.

But the Supreme Court’s case law concerning religion is far from as clear as the Seattle Times Editorial Board asserts.  “No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. ‘It has never been thought either possible or desirable to enforce a regime of total separation . . . .’ Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”4

It seems like the Bremerton School District assumes there is an Establishment Clause violation and starts its letter from there.  Especially with recent Supreme Court precedent, identifying what is permissible and impermissible religious expression is a difficult task.  Furthermore, I will argue the symbolic religious expression doctrine seemingly permits Assistant Coach Kennedy’s actions.

Symbolic Expression

The Court has repeatedly acknowledged some religious expression by government officials is permissible.  “The Court has considered this symbolic expression to be a tolerable acknowledgement of beliefs widely held rather than a first, treacherous step towards establishment of a state church.”5  Symbolic religious expression can reinforce “the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.”6

In Town of Greece, the Court upheld rotating sectarian prayer made during an invocation before city council meetings.  In Marsh v. Chambers, 463 U.S. 783 (1983), the court upheld a prayer made before each legislative session, offered by a chaplain chosen by the legislature, paid out of public funds.  In addition to the case law the United States Supreme Court says at the beginning of every session “God save the United States and this honorable court.”7 On United States currency it is written “In God We Trust.”8

There are times when prayer is permissible, even if sanctioned by those who work in the government.  Both Marsh and Town of Greece opinions note that prayers before legislative sessions go back to our nation’s founding.  This by no means is a new concept.

What is unconstitutional is the establishment of religion.

The troubling part of Bremerton School District’s letter to Mr. Kennedy is that it does not describe any harm from the religious expression.  Nowhere in the three page memo are there any facts substantiate the School District’s fear that this religious expression somehow lead to an establishment of religion.  There does not appear to be any accusations in which Assistant Coach Kennedy or any other members of the coaching staff punished students who did not participate in the religious expression.  It also does not appear that football players had a contractual duty to pray with the coach.9

It would be a different story if students were somehow forced to listen or participate in the prayer, but that does not seem to be the case here.  Just as one is free to leave a city council meeting while a religious invocation is being made, there does not seem to be anything stopping students from not participating in the prayers.

Without the school district indicating how students are coerced by Mr. Kennedy’s religious expression it is impossible to claim there is an establishment of religion.

Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Santa Fe Independent School Dist. v. Doe, 530 US 290, 304 (2000).
  2. Id. at 305.
  3. Seattle Times editorial board, Freedom compromised with prayer at Bremerton football games, Oct. 28, 2015, available at: http://www.seattletimes.com/opinion/editorials/freedom-compromised-with-prayer-at-bremerton-football-game/.
  4. Lynch v. Donnelly, 465 US 668, 693 (1984) (quoting Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 760 (1973)).
  5. Town of Greece, NY v. Galloway, 134 S. Ct. 1811, 1818 (2014).
  6. Lynch v. Donnelly, 465 US 668, 693 (1984).
  7. Lynch v. Donnelly, 465 US 668, 693 (1984).
  8. Id.
  9. C.f. Cole v. Oroville Union High School Dist., 228 F. 3d 1092 (9th Cir. 2000) (noting the school district required students to sign contracts requiring students to dress and act in a certain way in order to attend the optional graduation ceremony where unbeknownst to school officials two students chosen to speak would deliver prayers).

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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