Washington high school football coach Joe Kennedy is not giving up. On July 22, First Liberty Institute and Kirkland & Ellis LLP filed an opening brief on Kennedy’s behalf in his appeal to the U.S. Court of Appeals for the 9th Circuit for the right to kneel in silent prayer at the 50-yard line after games.
“Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Hiram Sasser, executive general counsel at First Liberty. “Coach Kennedy has been denied the freedom to coach for nearly five years, but he’s never been a quitter. We must protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
In 2015, Kennedy, an assistant football coach, was fired by Bremerton School District for kneeling on the 50-yard line after football games and silently praying for 15 to 20 seconds. Although players often participated, it was never mandatory.
The school district argued that it has a right to restrict religious expression if it feels the expression creates an illusion of government-endorsed religion.
Federal District Court Judge Ronald Leighton denied Kennedy’s request for an injunction in 2016, and in 2017 a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled against the coach.
Then in January 2019, the U.S. Supreme Court refused to hear the case, stating that the court needed more information. But Justices Alito, Thomas, Gorsuch and Kavanaugh filed a separate statement expressing concern, writing, “The 9th Circuit’s understanding of the free speech rights of public-school teachers is troubling and may justify review in the future.”
The case returned to the federal district court for further review where, in January, Leighton seemingly disregarded the Supreme Court’s warning, and instead, granted the Bremerton School District’s motion for summary judgment.
“We are disappointed in this decision, but we are undeterred in our mission to obtain justice for Coach Kennedy,” Mike Berry, general counsel for First Liberty Institute, said at the time. “Joe has fought—first as a U.S. Marine, then as a coach—to prove that every American has the right to engage in individual religious expression, including praying in public, without fear of getting fired. He knows this fight isn’t over.”
By filing another brief with the 9th Circuit, Kennedy is again urging the court to reconsider.
“Discovery has shown that Coach Kennedy’s ‘fleeting’ (the district’s words, not Coach Kennedy’s) personal prayer was directed to God, not others, and did not pose a risk of coercing student involvement in religion,” reads the brief. “Because the district’s actions violated the Constitution as well as Title VII [of the Civil Rights Act of 1964], this court should reverse the judgment of the district court and grant summary judgment for Coach Kennedy.”
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