The Supreme Court, Colin Kaepernick and the Reason to Kneel

The man looks around the football stadium, sees the stands rising above him, feels the grass beneath his feet. This is a special place for him, a place where he is most in touch with the passions that nourish him, the desires that drive him. The game isn’t in play right now, but the energy is everywhere. Overwhelmed by the moment, the man falls to one knee, his thoughts focused on something much bigger than himself. It’s a beautiful scene.

Does he kneel in protest or in prayer? Could be either one. The answer will infuriate some Americans and encourage another.

You know the story of Colin Kaepernick, who knelt during the national anthem to protest police brutality in the 2016 NFL season, then found himself out of work.

Now consider the story of Joseph Kennedy, a former assistant football coach at Bremerton High School in Washington State. Kennedy regularly knelt in prayer after football games, and in 2015 he too was out of work.

In both cases, the precipitating event that led to the unemployment of both men was the kneeling. NFL teams are not required to offer a job to a player whose activities off the field cause complications for the team, and school officials don’t seem to advocate one religion over another. Those are basic facts.

Kennedy filed suit over his resignation, and in time, Kennedy v. Bremerton School District reached the highest court in the country. On Monday, United States Supreme Court ruled in a 6-3 decision that Kennedy had been wronged and that the school district had wrongly terminated him. Aside from gun control and abortion cases, it was the most diligent decision of this year’s legislature, attracting widespread interest from both free speech and religious rights advocates.

(Michael Wagstaffe/Yahoo Sports illustration)

(Michael Wagstaffe/Yahoo Sports illustration)

“The Constitution and the best of our traditions recommend mutual respect and tolerance, not censorship and oppression, for both religious and non-religious views,” Judge Neil Gorsuch wrote before the majority. The case, in fact, depended on whether Kennedy, a school employee, was praying while others joined him, or… leading others in prayer. There is a significant difference.

“This Court has consistently recognized that school officials conducting prayers are constitutionally prohibited from law,” Judge Sonia Sotomayor wrote in a dissenting opinion. “Official led prayer goes to the heart of our constitutional protections for the religious freedom of students and their parents.”

The nuances between Kaepernick and Kennedy are not exact. Kaepernick knelt during the national anthem, sparking outrage against him. (Many players and team officials were booed, even if they knelt at other timesindicating, however, that at least some of the opposition to protests had nothing to do with their timing.)

Moreover, the problem with Kennedy is not that he only kneeled, but that he eventually began to draw large crowds to kneel with him, which began to pound hard against the wall between church and state. And assuming that a high school player could simply forgo a coach-led prayer betrays an immense naivety about the way high school sports hierarchies work.

Aside from the legal implications of the ruling – which are huge and beyond the scope of this particular column – consider individual reactions to kneeling actions. Many of the same conservative outlets that hailed Kennedy for voicing his beliefs have exterminated Kaepernick for years for following his own. Many of the same progressive commentators who vocally supported Kaepernick’s right to protest are outraged that Kennedy would bring his beliefs to the workplace.

At the heart of the debate we have two men silently expressing their beliefs, both outside the context of a game. That’s why free speech is such a devil – really believing in it means protecting some speech you don’t like. The stick-to-sports crowd likes not to stick to sports when, for example, prayers are involved. The sport-is-a-reflection-of-society doesn’t appreciate it very much when sport reflects a part of society that is not their own.

The simplest answer would be that those enraged by either kneeler, stop being offended at what – by any rational measure – are minor provocations at best. There are much bigger, more important battles to fight.

If Kaepernick – or anyone like him, considering he’s not in the league – started burning flags while playing, that would be a different problem. If Kennedy, or the thousands of other high school coaches already praying before and after games, made prayer mandatory to stay on the team, it would be a very different matter from the simple act of one man kneeling in prayer on a field.

Kaepernick and Kennedy are an opportunity to broaden the lens through which we see America in 2022, to look beyond just the triggers that make us see red. Yes, I know… no one will do this. Still… people can often be unbearable. That doesn’t mean we have to be intolerant to emulate.

Contact Jay Busbee at [email protected] or on Twitter at @jaybusbee.

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