The U.S. Supreme Court Friday agreed to consider whether a Christian high school football coach’s practice of kneeling at the 50-yard line to pray after his team’s games in Washington state is a private religious act protected by the U.S. Constitution or conduct his employer had the right to prohibit.
Former Bremerton High School assistant coach Joe Kennedy succeeded in his second attempt to get the justices to review whether the school district violated his free speech and free exercise of religion rights when it cracked down after seven years on his midfield prayers in the post-game hubbub.
According to Bremerton, it became concerned after players and others joined Kennedy in the practice, which grew to include religious-laced motivational speeches by the coach. It was forced to suspend Kennedy when he resumed his open praying in front of students and spectators after briefly stopping, it says.
If it hadn’t done so, it potentially could have been liable for violating the Constitution’s prohibition against the state endorsement of religion, the school district says.
But Kennedy says the U.S. Court of Appeals of the Ninth Circuit’s March 18 decision embracing Bremerton’s view poses “a triple threat to individual liberty and First Amendment values.”
His “acts of personal devotion” in saying a brief silent prayer of thanks after games weren’t part of his job duties, according to Kennedy’s opening brief seeking review by the justices.
They thus were private expression, not speech as a public employee, and the school district had no right to restrict his praying, he says.
A government employer isn’t permitted to single out speech for sanctioning simply because it’s made “for religious reasons,” the coach says. That the nature of his expression was the reason he was singled out is clear from the school district’s admission that it told him to pray some place where he couldn’t be seen because his conduct was religious, he says.
Any legitimate concerns Bremerton had about players, other students, or the community believing the district was endorsing his midfield praying could have been easily addressed by “simply reiterating the uncomplicated message that the school does not endorse private speech it declines to censor,” Kennedy says.
The Ninth Circuit’s “sweeping conception” of what constitutes speech a government employer can prohibit imperils the religious expression rights “of hundreds of thousands of teachers” and coaches, he says. It also “doubled down” on the faulty constitutional analysis that caused four justices to suggest when the Supreme Court denied his first request for review in January 2019 that the court may need to take up the case down the road, the coach says.
The appeals court further chilled the rights of religious public school and other government workers by stating that he “had no one to blame but himself” for the relinquishment of his First Amendment rights because he deliberately sought media attention to vindicate his beliefs in “too ‘pugilistic’ a fashion,” Kennedy says.
It then wrongly denied review of his claims by the full Ninth Circuit “over the objection of 11 judges,” he says.
The Ninth Circuit’s ruling “transforms virtually all speech by public-school employees into government speech lacking any First Amendment protection” and is at odds with other U.S. courts, the coach says.
Bremerton opposed Kennedy’s bid for review.
Kennedy delivered his post-game prayers at the 50-yard line before the field and stands had cleared, the school district says. He was therefore speaking in his capacity as a coach and a district employee, it says.
It wasn’t constitutionally required to bend to Kennedy’s demand that he be permitted to resume his midfield prayers after it discovered what was going on, realized the coercive effect his prayers and speech could have on players and other students, and directed him to stop, the school district says.
Kennedy was offered time and space to pray in the press box or anywhere else he wouldn’t be surrounded by the team, before or after games, Bremerton says.
The coach’s religious rights therefore could have been accommodated in ways that respected the conflicting or potentially conflicting beliefs and rights of students and their families, it says.
The Ninth Circuit’s ruling is consistent with Supreme Court precedent on the speech rights of government workers and the nonendorsement of religion by the state, the school district says.
The appeals court only addressed Kennedy’s individual situation, not the broader “hypothetical” questions he claims it did, Bremerton says.
First Liberty Institute, Kirkland & Ellis LLP, Spencer Fane LLP, and Jeffrey P. Helsdon of Tacoma represent Kennedy. Tierney, Correa & Zeinemann PC and Americans United for Separation of Church and State represent Bremerton.
The case is Kennedy v. Bremerton Sch. Dist., U.S., No. 21-418, cert. granted 1/14/22.