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Supreme Court seems sympathetic to coach who claims right to pray on the 50-yard-line

ROB SCHMITZ, HOST:

At the U.S. Supreme Court today, yet another culture war case and yet another case in which the court's conservative supermajority appears to be moving toward greater accommodation for religious expression in public schools. The case centered on a football coach who claims he has the right to pray on the 50-yard line after each game, joined by those of his players who want to participate. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: School authorities in the town of Bremerton, Wash., told coach Joseph Kennedy to stop his midfield praying because it violated school policy. That policy said to neither encourage nor discourage religion. The school district and the lower court said his public praying would be perceived as a school endorsement of religion, and Kennedy was put on paid leave when he refused to stop.

In the Supreme Court today, lawyer Paul Clement, representing the coach, told the justices that Kennedy's 50-yard prayers were private speech, protected by the First Amendment guarantee of free speech and the free exercise of religion. The prayer, he contended, was much like a player crossing himself after making a touchdown.

Justice Sotomayor focused on where to draw the line for school employees, posing this hypothetical.

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SONIA SOTOMAYOR: Why can't the school fire a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray? If someone comes up and says, that's part of my religion, could the school say no to them?

TOTENBERG: Justice Kagan said that whatever label you put on coach Kennedy's prayers is irrelevant.

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ELENA KAGAN: Endorsement, coercion - I mean, you're requiring a lot of a school board to try to figure out exactly which box in the establishment clause to put this in.

TOTENBERG: Kagan and Sotomayor are from the court's liberal wing and have no desire to overturn the court's precedents, marking a clear separation between church and state. The court's conservatives have a very different view. They want to focus instead on accommodating religion in public schools and other public institutions. But even in this case, conservative Justice Kavanaugh, an avid sports fan and parent coach, understood how coach Kennedy's behavior might be perceived by some parents.

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BRETT KAVANAUGH: Every player is trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera.

TOTENBERG: And yet Kavanaugh and fellow conservative Neil Gorsuch repeatedly suggested that in their view, it is now time for the court to bury some of its older precedents for good. Most prominent is a 1971 case that, in legal shorthand, is seen as a ban on state endorsement of religion. Lawyer Clement, representing the coach, stressed that while the court has largely abandoned the endorsement test, school districts all over the country still rely on it.

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PAUL CLEMENT: It's a stubborn fruit, and I don't think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half.

TOTENBERG: Lawyer Richard Katskee, representing the school board, replied that Kennedy's actions had not been benign. The coach, he said, conducted a media blitz, permitted state legislators to join him on the field in prayer and put students in jeopardy.

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RICHARD KATSKEE: Some of these kids were just 14 years old. Mr. Kennedy's actions pressured them to pray and also divided the coaching staff, sparked vitriol against school officials and led to the field being stormed and students getting knocked down.

TOTENBERG: If the evidence bears that out, asked Justice Gorsuch...

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NEIL GORSUCH: What, then, should we do if we thought coercion were the appropriate test but hadn't been applied by the school district or by the court below?

TOTENBERG: Lawyer Katskee said the court should remand the case back to the lower courts for fact-finding on the question of coercion. Coach Kennedy's lawyer replied to that suggestion with alarm.

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CLEMENT: There's no evidence of coercion in this record. But worse, still - I mean, my client has already waited six years to get his job back.

TOTENBERG: A decision in the case is expected by summer.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF GARY BURTON'S "CAMINOS") Transcript provided by NPR, Copyright NPR.