Nature of the Case
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Facts
P worked as a football coach at D in 2008 after nearly two decades of service in the Marine Corps. P made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. P offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying “quietly” for “approximately 30 seconds.” Over time, some players asked whether they could pray alongside him. P responded by saying, “‘This is a free country. You can do what you want.’” Eventually, it included most of the team. Team members also invited opposing players to join. P began incorporating short motivational speeches with his prayer when others were present. Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated P. P “never pressured or encouraged any student to join” his postgame midfield prayers. D’s superintendent first learned of the practice in September 2015, after an employee from another school commented positively on the practice to D's principal. D sent P a letter. The letter identified the pregame and post-game practices as problematic. D instructed P to avoid any motivational “talks with students” that “included religious expression, including prayer,” and to avoid “suggesting, encouraging (or discouraging], or supervising” any prayers of students, which students remained free to “engage in.” D appealed to what it called a “direct tension between” the “Establishment Clause” and “a school employee’s [right to] freely exercise” his religion. P ended the practices but decided on his own when the stadium was empty he walked to the 50-yard line and knelt to say a brief prayer of thanks. P engaged an attorney and asked to resume the practices of his own accord. P also objected to the implication of the District’s letter, which he understood as banning him “from bowing his head” in the vicinity of students, and as requiring him to “flee the scene if students voluntarily [came] to the same area” where he was praying. D issued an ultimatum. It forbade P from engaging in “any overt actions” that could “appear to a reasonable observer to endorse . . . prayer . . . while he is on duty as a -paid coach.” At the next game, P offered a brief prayer. Though P was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. D went crazy. It told everyone that public access to the field is forbidden; it posted signs and made announcements at games saying the same thing; and it had the Bremerton Police secure the field in future games. D sent yet another letter. D made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” P was eventually put on paid administrative leave. D criticized P for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games on October 16, 23, and 26. D admitted that it possessed “no evidence that students have been directly coerced to pray with P.” D gave him a poor performance evaluation. The evaluation advised against rehiring P on the grounds that he “‘failed to follow district policy’” regarding religious expression and “‘failed to supervise student-athletes after games.’” P did not return for the next season. P sued alleging that D’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. P moved for a preliminary injunction requiring D to reinstate him. The court denied the motion and the appeals court affirmed. The Supreme Court eventually granted certiorari. By then the District Court had rejected P's free speech claim because any speech he uttered was offered in his capacity as a government employee and unprotected by the First Amendment. It held that D had a compelling interest in prohibiting his postgame prayers because it would have violated the Establishment Clause. The Ninth Circuit affirmed. P's speech qualified as government rather than private speech. The dissent stated that Lemon was dead law and the courts need to recognize this fact.
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