The 9th U.S. Circuit Court of Appeals has rejected the religious freedom claims of Coach Joe Kennedy for the second time, setting up another likely appeal to the U.S. Supreme Court.
Kennedy was a high school football coach at Bremerton High School in Bremerton, Washington for several years leading up to his suspension in the fall of 2015 for his practice of post-game prayer at midfield. Sometimes his players would join him, including players on opposing teams. It was all voluntary.
However, the Bremerton School District (BSD) found out about it, and prohibited any further kneeling at mid-field by Kennedy. He protested that he was praying as an individual, but the district considered him to be acting as an employee while he prayed, and that it would appear as if the administration sponsored the prayer. As such, the BSD said it did could not allow Kennedy to pray without creating a violation of the First Amendment’s Establishment Clause by the district.
Kennedy’s contract was not renewed because he refused to abide by the district’s order, and he sued, asking the federal courts for an injunction allowing him to pray. He lost at the federal district court level, and again at the 9th Circuit, and the U.S Supreme Court declined to hear his case in 2019.
But in the 2019 rejection, Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, issued a statement suggesting that the facts of the case needed to be fleshed out a little more before the justices could address the constitutional issues raised by the coach.
So, the case went back to the federal court in Washington, where Kennedy lost again, followed by an unsuccessful appeal to the 9th Circuit, which issued its opinion this week.
The three-judge panel decision, written by Judge Milan Smith, was harshly critical of Kennedy’s efforts to publicize his dispute with BSD, suggesting that it tainted Kennedy’s efforts to claim he was only interested in “private” prayer.
“The record before us and binding Supreme Court precedent compel the conclusion that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him,” the opinion states. “Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties. BSD tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him.”
The opinion took pains to differentiate Kennedy’s prayer from a hypothetical teacher bowing to pray over her lunch in the school cafeteria, where students would see her. That, Judge Smith argued, would be fine. However, it’s not clear that the 9th Circuit’s reasoning there is anything but conclusory – i.e., they just see it as different without really explaining why.
Coach Kennedy is represented by lawyer Mike Berry at First Liberty Institute, and Berry promised an appeal of the 9th Circuit decision. As he explained in this video, Kennedy has two options: ask for an “en banc” review from a larger 9th Circuit panel of judges, or appeal directly to the Supreme Court.
“Banning coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Berry in a statement on First Liberty’s website. “Today’s opinion threatens the rights of millions of Americans who simply want to be able to freely exercise their faith without fear of losing their job. We plan to appeal, and we hope the Supreme Court will right this wrong. This fight is far from over.”
Focus on the Family President Jim Daly has been following this case and suggested in a 2017 op-ed for Fox News that the school district should be celebrating Coach Kennedy’s example, not punishing him.
“In this age of rampant fatherlessness, when about 17.4 million kids in the U.S. live without a dad in the home, we need men like Coach Kennedy to be involved with children who desperately need positive role models,” Daly wrote.
The Daily Citizen will continue to follow this case and bring you updates as they occur.
Photo from First Liberty