Kennedy v. Bremerton held that football coach Joseph Kennedy had the right to engage in what Justice Neil Gorsuch called a “short, private, personal prayer” on the 50-yard line after games. The court held that forbidding that prayer improperly discriminated on the basis of religion, because employees were allowed to do other personal things with their free time after games. There was no “record evidence that students felt pressured to participate in these prayers” and no evidence that the prayers disrupted the school.
The actual facts are very different.
For years, Kennedy led his players in prayers. When the Bremerton School District learned of this, it told him that he could pray after games, but must do so silently and alone. It was concerned about pressure on the players. The coach has unlimited discretion to decide who plays. Students who don’t play won’t get football scholarships.
The trial judge, whose findings of fact Gorsuch was obligated to accept unless he deemed it clearly erroneous (which he did not), wrote… Read More
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.