By Andrew L. Seidel
Freedom From Religion Foundation
“Liberty Institute is going to initiate legal proceedings this week to defend Coach Kennedy…” ~Mike Berry, Senior Counsel for the Liberty Institute
Liberty Institute, a Christian legal ministry, is apparently going to sue the Bremerton School District for asking a coach to comply with the law and not pray with his players. Many other federal courts have looked at this exact issue and determined that when a coach prays with his team in his capacity as a coach (i.e., on the field, with the team), it amounts to “an unconstitutional endorsement of religion.” Legally speaking, “free expression rights must bow to the Establishment Clause prohibition on school-endorsed religious activities.”
Government employees, including teachers and coaches, do not have unlimited rights
As an initial matter, let’s all agree that public school employees do not have unlimited free speech or religious exercise rights when acting in their official capacity as government officers. For instance, teachers cannot make obscene gestures at students or call students names, such as “son of a bitch,” behavior that would normally be protected under the First Amendment. Nor could a government employee violate other laws and constitutional requirements designed to regulate the government. For instance, a school or school team or that team’s coach could not kick an African-American off the team because of his race or a gay kid off the team because of his sexuality—at least not without violating the law. Teachers have even been fired, and those firings upheld, when they communicated with students on their personal social media accounts in less than appropriate ways. The same goes for publishing a personal blog that criticizes students. The teachers were acting in their private capacities, but they only had access to the students because of their official position. When citizens are employed by the government they become officers of the government, and they agree to accept these restrictions. The Supreme Court put it very clearly:
When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
The same could be said of religion and religious speech. Coach Kennedy is not acting as a private citizen. Private citizens do not have access to other people’s children in school locker rooms. They do not have access to the field where Kennedy prays. They do not hold sway over an entire team that is taught to either obey his word or run laps. As should be obvious, Coach Kennedy is not acting as a private citizen, as Mr. Kennedy, but as a public employee. His rights are not unlimited because he is acting as a government officer and must obey rules that restrict the government’s power.
Foremost among those rules is not abusing that position of power to influence the religious choices of the young, impressionable children in your charge. For what it’s worth, even other Christian legal ministries, such as the ACLJ, passed on Kennedy’s losing case.
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Student athletes are “uniquely susceptible to coercion” from coaches so the prayers are not voluntary
The Institute and Kennedy like to argue that these prayers are voluntary. But neither attendance nor the prayers are truly voluntary, and it wouldn’t matter if they were. Games are not voluntary for many. Band members, cheerleaders, student reporters, and, of course, team members are required to attend games. Nor are the prayers truly voluntary. Players are required to obey the coach and that coach is only present in his capacity as a school employee. He controls who plays and how much. And what high-schooler, especially one on a team, will voluntarily absent themselves from a team activity when they might be ostracized?
More importantly, from a legal standpoint, voluntariness cannot excuse a constitutional violation. As the Supreme Court put it in a slightly different context, “permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation.”
While Kennedy may consider these prayers voluntary and even good, his own savior considers public prayer the mark of hypocrites. Here’s Kennedy: “I’m not a guy who hides in a corner and does a secret prayer to God. I’m very open about my faith everywhere I go.” Here’s Kennedy’s savior, according to the bible:
“…when you pray, you must not be like the hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward. But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your Father who sees in secret will reward you.”
Why would Liberty Institute file a losing case?
First, there is a chance that the Institute thinks it can win the case. Even though two federal circuit courts have ruled against coaches on precisely this issue, another circuit might decide the matter differently, particularly if the facts were significantly different. Unlike Kim Davis, the Kentucky clerk who was divorced three times, married four times, and birthed children who were not her husband’s, Coach Kennedy appears to be earnest and he is a veteran. The Institute probably views Kennedy as a likable plaintiff and maybe think that’s enough to overturn the Supreme Court’s interpretation of the First Amendment, it’s probably not. And if he stays in the news much longer, as Davis did, he may become less likable.
As pointed out above, the Institute’s legal argument is nonsense. Trying to argue that the district is saying “that there can be no visible expression of religion by their employees” might fly on Fox News, but I don’t think any judge will buy that line.
Second, no doubt the Institute is doing a fair bit of fundraising on the back of Coach Kennedy. Looking back at the beginning of the situation, it even seems manufactured by the Institute. Back before the Institute was involved in this straightforward legal issue, Kennedy actually obeyed the Constitution and the school district, for going prayers in mid-September. FFRF was even notified about the issue back then, but the district did such a superb job educating Kennedy and dealing with the problem that we stayed out of it. The Institute involved itself nearly a month later, on Oct. 14. I suspect they did this to hop on the Kim Davis/Religious Freedom gravy train their nearly identically named comrades at Liberty Counsel rode a few months ago. Its website bore out my suspicion, though I understand it is a bit more subtle now.
Maybe I’m wrong about money being the Institute’s prime motivation. Perhaps it’s just the cynic in me. Or perhaps it’s because we’ve dealt with Liberty Institute time and again (beating them every time we’ve ended up in court, despite its website’s misleading claims to the contrary). But then again, maybe it’s because despite all the chest-beating about religious liberty, it’s the donate button on its website, not the prayer button, that’s by far the largest.
FFRF is a national nonprofit dedicated to keeping state and church separate and educating about nontheism. For more information and a copy of our paper, Freethought Today, please click here.