BREMERTON, Wash. — The Ninth Circuit Court of Appeals has ruled against a Washington football coach who was put out of a job in 2015 as school district officials decided not to renew his contract in the midst of a battle over his desire to pray at the 50-yard line.
“While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as part of [these] occasions,’ such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all,” wrote Judge Milan Smith, appointed to the bench by then-President George W. Bush, on behalf of the three-judge panel.
“That is why the ‘preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission,'” he said, quoting from the 1992 U.S. Supreme Court ruling of Lee v. Weisman.
As previously reported, Joe Kennedy, the former assistant head coach for the varsity team at Bremerton High School and the head coach for the junior varsity team, was placed on paid administrative leave in October 2015 when he prayed at the conclusion of the homecoming game despite an order to cease his practice.
Kennedy said that he began offering brief prayers on the field in 2008, then praying on his own. He was subsequently approached by several team members who asked what he was doing.
“I was thanking God for you guys,” Kennedy recalls responding. “Then a couple said they were Christians and asked if they could join. I responded, ‘It’s a free country, you can do whatever you want to do.’”
He said that he never asked students to pray with him, but some desired to, including those from the opposing team.
“They just all showed up one day and the next thing I know, the other team was showing up with us,” Kennedy said.
In September 2015, the Bremerton School District launched an investigation into the coach’s practices, and soon sent a letter outlining that some aspects of his religious expression must cease. It noted that Kennedy not only prayed at the conclusion of each game, but also prayed in the locker room with students and staff.
While Superintendent Aaron Leavell acknowledged that “[e]ach activity has been voluntary” and that Kennedy has not “actively encouraged or required participation,” he asserted that the practices were still unconstitutional. He laid out rules so that the district would decrease its chances of a lawsuit, stating that while Kennedy may engage in religious activity, “students may not be allowed to join such activity.”
But although Kennedy agreed to discontinue the locker room prayer, his attorneys with the Texas-based group First Liberty stated that he had done nothing wrong in seeking to pray by himself at the conclusion of each game. They opined there is neither any constitutional violation in permitting students to join.
As Kennedy offered a prayer the following month at the homecoming game, and was voluntarily surrounded by his team and scores of other supporters, he was consequently placed on paid leave until he agrees not to pray at the 50-yard-line. In January, the district decided not to renew his teaching contract, effectively putting him out of a job.
In December 2015, the former U.S. Marine turned football coach filed a complaint with the Equal Employment Opportunity Commission, alleging workplace retaliation against his Christian expression in violation of Title VII of the Civil Rights Act of 1964.
Last August, Kennedy’s attorneys also filed a federal lawsuit challenging his firing at the high school. However, U.S. District Judge Ronald Leighton, nominated to the bench by then-President George W. Bush, declined to grant an injunction that would have required the Bremerton School District to rehire Kennedy while his case moves forward in court.
Kennedy appealed, but on Wednesday, the Ninth Circuit Court of Appeals unanimously agreed with Leighton and likewise declined to grant the injunction.
“In sum, if Kennedy were to resume kneeling and praying on the fifty-yard line immediately after games while in view of students and spectators, an objective student observer would see an influential supervisor do something no ordinary citizen could do—perform a Christian religious act on secured school property while surrounded by players—simply because he is a coach,” it wrote.
“Irrespective of the district’s views on that matter, a reasonable observer would conclude in light of the history and context surrounding Kennedy’s conduct that the district, ‘in actuality,’ favors religion, and prefers Christianity in particular,” the court said.
Kennedy’s attorneys say that they are “deeply disappointed” with the ruling.
“The 9th Circuit believes they can ban all coaches from praying individually in public just because they can be seen,” attorney Jeremy Dys told conservative commentator Todd Starnes. “That is simply wrong. It is not American. And it is not the America contemplated by our Constitution.”