Last week, the Supreme Court granted cert in Kennedy v. Bremerton School District, the case of the high school football coach who wants to pray publicly on the field after games. The school district told him not to do so, at least in the presence of students, and, when he continued, refused to renew his contract. The coach argues that the school district has violated his First Amendment free speech and free exercise rights.
This is the second time Coach Kennedy has been to the Court. He first sought cert in 2019, at the preliminary injunction stage, but the Court declined to grant his petition at that time. In a statement for himself and three other justices, Justice Alito suggested that the school district might have violated Kennedy's First Amendment rights, but that the facts were not clear. Perhaps the school district didn't want Kennedy to pray on duty because praying distracted him from supervising team players? The district has cleared that up now, though. It maintains that it did not allow Kennedy to pray for the "sole reason" that allowing him to do so would amount to an official endorsement of religion in violation of the Establishment Clause.
A Ninth Circuit panel agreed with the school district and ruled against Kennedy, although several judges tried, unsuccessfully, to have the case reheard en banc. It seems clear that the Court granted cert last week in order to reverse. Although the cert petition makes the obligatory argument about a circuit split, it spends most of its time arguing that the panel opinion was both "egregiously wrong" and "exceptionally important." It's hard to imagine that the justices who voted to grant cert, including, presumably, those who joined Justice Alito's statement three years ago, would have taken the case unless they agreed. And they likely expect to be joined by at least one of their colleagues.
