He knelt at midfield. He prayed for thirty seconds. He lost his job.
By Jeff Bayard | Does the Constitution Really Say? — Part 6
This is Part 6 of Does the Constitution Really Say? — a series by Jeff Bayard asking whether the Constitution really says what the courts now say it says. Read Part 1, Part 2, Part 3, Part 4, and Part 5.
Joseph Kennedy was an assistant football coach at Bremerton High School in Washington State. After each game, he would walk to the 50-yard line, kneel, and offer a brief silent prayer of thanks. The stadium would be emptying. His players would be off the field — calling home, texting friends, talking with family. He prayed alone for about thirty seconds. He had been doing it for seven years.
In 2015, the school district told him to stop. He stopped the things they specifically named — locker-room prayers, religious post-game speeches — and asked only to keep praying alone at midfield. The district fired him anyway. He sued. The case made it to the Supreme Court of the United States. He won.
So this is the question worth asking, plainly. Does the Constitution really say a coach cannot kneel and pray?
What the Words Meant
The First Amendment’s religion clauses, ratified in 1791, read in full:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Two protections sit in one sentence.
No establishment — Congress cannot create a national church.
Free exercise — Congress cannot prohibit the practice of religion. The Founders wrote both protections together because they understood the danger ran in two directions. A government that could establish a religion could compel worship. A government that could prohibit religious exercise could silence conscience. The First Amendment, in their understanding, did neither.
This is the world the men who ratified the First Amendment actually lived in. State legislatures opened sessions with prayer. Presidents took oaths of office on the Bible. The Continental Congress called for national days of thanksgiving, fasting, and humiliation. George Washington, in his 1789 Thanksgiving Proclamation — issued the same year the Bill of Rights was sent to the states — asked the nation to acknowledge “that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be.” None of those practices was thought to violate the clause those same Founders had just written. They could not have been — because the Founders wrote the clause, and they continued the practices.
The Free Exercise Clause in 1791 was a robust, affirmative protection. It did not merely permit private belief. It protected the exercise of religion — the lived practice, the visible acts, the moments when faith showed itself in the conduct of a citizen’s day. A coach kneeling in prayer at the end of a public-school football game would have struck the men who ratified that clause as exactly the kind of practice the clause was written to protect.
What the Words Now Mean
By the time Joseph Kennedy’s case reached the Supreme Court, a different rule had hardened in lower federal courts and school-district legal offices. The rule ran something like this: a public-school employee cannot pray visibly on school grounds, because a reasonable observer might mistakenly conclude the school endorses the prayer. The “reasonable observer” was a hypothetical figure. The endorsement was a perception, not a fact. But the rule was real enough to cost a man his job.
In Kennedy v. Bremerton School District, 597 U.S. 507 (2022), the Supreme Court struck that rule down 6–3. Justice Neil Gorsuch wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Kavanaugh. The opening sentence of the opinion was as plain as the case itself: “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks.”
Gorsuch built the holding on three load-bearing moves.
First, he ruled that Kennedy’s prayer was protected by both the Free Exercise Clause and the Free Speech Clause. Kennedy prayed during a window when school employees were “free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.” In that window, Kennedy was a private citizen, not a government voice. His prayer was personal speech, not school speech.
Second, Gorsuch rejected the district’s argument that suppressing the prayer was required by the Establishment Clause. The district had imagined a “reasonable observer” who might think the school endorsed Kennedy’s prayer. Gorsuch replied that no actual person had complained at the time, the school had never actually endorsed anything, and a hypothetical observer’s possible confusion could not justify firing a man for a thirty-second silent prayer. “The Constitution and the best of our traditions counsel mutual respect and tolerance,” Gorsuch wrote, “not censorship and suppression, for religious and nonreligious views alike.”
Third — and this is the line worth marking — Gorsuch held that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” That is originalist methodology in plain text. It is the frame this series has been making the case for since Part 1. The Constitution means what it meant when it was ratified, not what a hypothetical observer might mistakenly think today.
What Happened Next
Kennedy did three things that ripple outward beyond one football coach.
It explicitly abandoned the Lemon test — the 1971 framework that for fifty years had been used to police religion out of public spaces. Lower courts had been using Lemon and its “endorsement test” offshoot to strike down nativity scenes on courthouse lawns, prayers at high-school graduations, moments of silence in classrooms, and a long list of other ordinary religious expressions. Kennedy replaced that framework with the historical-practice standard. Whether a religious expression in public life is constitutional now depends on whether something like it was understood to be constitutional at the Founding.
It walked back the broader reading of Employment Division v. Smith (1990). Smith had held that “neutral and generally applicable” laws could burden religious practice without strict-scrutiny review. By the time of Kennedy, lower courts had stretched that rule to cover almost any government action with a religious cost. Gorsuch ruled that the Bremerton district’s actions were not neutral and not generally applicable — because the district had singled out religious conduct for unique disfavor while permitting other personal expression in the same moments. Justice Alito has called Smith “embattled since the day it was decided.” Kennedy is one of the cases that has embattled it.
And it returned the First Amendment to something closer to what the Founders wrote. Religious liberty does not require the government to scrub every visible religious expression from public life. The government must keep its hands off private religious practice, even when that practice happens on government property in a government employee’s spare moment.
The Strongest Argument the Other Way
The strongest argument against the Kennedy ruling is one worth stating plainly, because it has real force. Public schools are coercive environments. A coach is an authority figure. Even a “private” prayer at midfield could pressure players to participate to stay in the coach’s good graces. The dissent, written by Justice Sotomayor and joined by Justices Breyer and Kagan, argued exactly that. The dissent included photographs of players kneeling with Kennedy and warned that the majority was ignoring the reality of how authority operates over young people. Coercion in religious matters is exactly what the Founders feared. The concern is legitimate.
But the Framers anticipated this too. They drew a line between government establishing religion and government employees practicing religion on their own time. The first is forbidden. The second is protected. Kennedy did not lead his team in prayer. He had stopped doing that when the district asked. He did not require, encourage, or pressure anyone to join him. He knelt at the 50-yard line and prayed alone for thirty seconds. Six justices, on the factual record before them, ruled that this was protected exercise, not coercive establishment. That line — protecting private exercise while restraining government establishment — is the line the First Amendment actually draws.
Did God Really Say?
Long before there was a First Amendment, Daniel knelt to pray when a “neutral and generally applicable” law forbade him from doing so.
King Darius had signed a decree that for thirty days no one in the kingdom could pray to any god or any man except the king himself. The decree applied to everyone equally. It was facially neutral. Daniel, when he learned of it, “went home. And in his upper room, with his windows open toward Jerusalem, he knelt down on his knees three times that day, and prayed and gave thanks before his God, as was his custom since early days.” (Daniel 6:10)
He did not pray to defy Darius. He prayed because prayer was the daily orientation of his life. He had been doing it since early days. The king’s decree did not change his practice; it only added a cost. He was thrown into the den of lions. God shut the lions’ mouths. He came out alive.
The Framers knew that story. They wrote a First Amendment that would not have required Daniel to choose between his job and his prayer. Joseph Kennedy faced a smaller version of the same choice. He chose Daniel’s answer. The Supreme Court, after seven years, agreed with him.
What the Citizen Does
Read the document. Know what it actually says. When you are told that the Constitution requires a public-school employee to hide his prayer, ask where those words appear. They do not appear in the Constitution. They appear in a doctrine the Court itself has now walked back. Does the Constitution really say that?
There is no better place to begin than Constitution 101 and the other free online courses from Hillsdale College. Hillsdale accepts no state or federal taxpayer funding — not even student aid — which keeps its teaching independent of political pressure. Dozens of courses, no cost, self-paced. Start with Constitution 101.
For Virginians, there is a second place to look. Article I, Section 16 of the Virginia Constitution — George Mason’s words, ratified in 1776 — has always protected religious conscience as an affirmative right, not a residual one. Virginia did not need Kennedy to fix its religious-liberty floor. The Supreme Court of Virginia confirmed in Vlaming v. West Point School Board (2023) that Article I, Section 16 stands on grounds independent of the federal Constitution. The federal floor fell after Everson and Smith. Virginia’s floor held.
The next piece turns from the first freedom to the second — from religion to speech — and to Matal v. Tam (2017), the case that asked whether the government can punish speech it deems offensive. The pattern this series has tracked is about to reach the words you are allowed to use.
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