A three-judge panel of the U.S. Court of Appeals for the 9th Circuit rejected former high school football coach Joe Kennedy’s argument that his First Amendment rights were violated when he was fired by Bremerton School District for kneeling on the 50-yard line in silent prayer after football games.

In the 40-page ruling issued March 18, Judge Milan D. Smith claimed that because students, coaches and community members began to join Kennedy in prayer, his actions were no longer a private exercise of his faith.

“At issue was—in every sense of the word—a demonstration,” Smith said, “and, because Kennedy demanded that it take place immediately after the final whistle, it was a demonstration necessarily directed at students and the attending public.”

Referencing a photo of huddled players bowed in prayer around Kennedy, Smith said, “viewing this scene, an objective observer could reach no other conclusion than that [the school district] endorsed Kennedy’s religious activity by not stopping the practice.”

Smith also chided Kennedy for the publicity the case has garnered: “Kennedy’s attempts to draw nationwide attention to his challenge to [Bremerton School District] 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.” 

In January 2019, the Supreme Court declined to review Kennedy’s case, stating that the court didn’t have enough information to make a ruling. But Justices Alito, Thomas, Gorsuch and Kavanaugh filed a separate statement expressing concern: “The 9th Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future,” they wrote.

Kennedy and his attorneys plan to appeal the most recent decision.

“Banning coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Mike Berry, First Liberty Institute’s general counsel. “[This] 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.”