Appeals Court Declines to Reconsider Ruling Against High School Football Coach Who Lost Job for Praying on Field

BREMERTON, Wash. — The Ninth Circuit Court of Appeals has declined to rehear a ruling from last August that denied relief to 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. The coach now plans to appeal to the U.S. Supreme Court.

“Judges [Milan] Smith and [Morgan] Christen have voted to deny the petition for rehearing en banc, and Judge [Dorothy] Nelson so recommends,” Thursday’s order read. “A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. The petition for rehearing en banc is denied.”

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.

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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.

In August 2016, 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 in August of last year, 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 with First Liberty then sought for the case to be reheard by the full court of appeals, or en banc, but the Ninth Circuit denied the request this week. The organization says that it will appeal to the U.S. Supreme Court.

“Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said President Kelly Schackelford. “We will keep fighting on behalf of Coach Kennedy until his religious liberties are fully restored, including appealing this case to the Supreme Court of the United States.”


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  • ZappaSaid88

    Why does the coach need to grandstand and pray on the 50 yard line? He could pray just as easily while pretending to drink Gatorade and let the students do their own prayer on the 50 yard line.

    • Samwise

      Yes. By their fruit shall ye know them.

      If a person wants to pray, they just pray. Quietly and where they are at.

      If a person wants to honestly provide spirtual leadership to other people’s kids, they do so in a church setting or other setting where it is clear their parents are supportive and not blindsided. Nobody, christian or not, sends their children to public school hoping teachers and coaches will try to change the religious beliefs that were taught at home. And honest people do not use pursue personal activities while on the job for a secular employer.

      If a person wants to be seen praying, they put on a show. When a person kneels on the 50 yard line of a football stadium full of people, that is putting on a show – on steroids.

      By their fruit shall ye know them

      So do the math.
      This is not about private communication with God.
      This is not about above board spiritual leadership.
      This is about showing off and making sure hundreds of people watch as you act holy.

  • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

    This is the exact opposite of what the Founding Fathers intended. So sad that a country that was formed to ensure religious freedom now suppresses that very freedom.

    • Enniscorthy

      It’s not suppressing religious freedom. It’s clearly defining where is it and is not appropriate.

      • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

        Someone should have told the Founding fathers, who all prayed publicly, that.

        • Enniscorthy

          A myth.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            Never took a basic history course, huh, Enni? LOL

          • Enniscorthy

            Yes, I have. It’s a myth. You can Google it yourself and see. But you won’t, will you?

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            You mean like the Library of Congress record of Presidential prayers? Dude, you’re not even trying at this point. 🙂

          • Enniscorthy

            Neither are you, or you’d post them.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            You can’t post links here, but you can go to the Library of Congress. You do know how to find that, don’t you?

          • Enniscorthy

            I sure do, so since you made the original claim, are we just supposed to sit back and assume you are being honest? Why not post the link to show it?

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            Because you can’t post links here. 🙂 You don’t know how to find the Library of Congress? 🙂

          • Enniscorthy

            A quote would do, sir, but you know that you are unable to do that because you haven’t got the material you claim to have.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            I gave you an entire section of prayers. Not good enough for you? LOL

          • Enniscorthy

            I’ve seen how you manipulate quoted material in the past.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            That’s untrue, but why don’t you go to the Library of Congress and look it up for yourself?

    • Guzzman

      You wrote, “This is the exact opposite of what the Founding Fathers intended.” I think the Founders would vehemently disagree. Kennedy used his government position as coach to pray with students and promote his personal religious beliefs while acting in his official capacity at school-sponsored events, on school property, while he was supposed to be performing his post-game duties. James Madison, long-honored as Father of the Constitution, had this to say on the separation of religion and government in the Constitution:

      “The settled opinion here [in the United States] is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both.” (Letter to Edward Everett, Montpellier, March 18, 1823).

      The coach violated the Establishment Clause of the First Amendment (written by Madison) which mandates government neutrality towards religion.

      • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

        You must have missed the part about George Washington and just about every President, praying publicly.

        You also failed to understand the quote you cited. It refers to government-enforced religion, which is what is happening in this case. Atheism is a religion, too, you know.

        • Guzzman

          Elected officials are free to talk about their faith, the role it plays
          in their lives, and how it influences their approach to policy issues, but they must
          not use the authority of their offices to proselytize or impose particular
          religious beliefs or practices on others.

          So you are saying the school district, by prohibiting the coach from praying on school property, during a school-sponsored event, with students, while he was supposed to be performing his post-game duties, amounted to “government-enforced religion”; and this alleged religion being imposed by the courts is atheism?

          Courts have rejected that argument. The District and Appeals courts both said the coach’s religious practices while acting as a school employee violated the Establishment Clause of the
          First Amendment. The Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” McCreary Cty., Ky. v. Am. Civil. Liberties Union of Ky., 545 U.S. 844, 860 (2005).

          Neutrality is not atheism. Better invest in a dictionary.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            What courts currently rule does not necessarily reflect upon what the Founding Fathers wanted. The courts also once ruled a black man was sub-human. You really want to go by that?

            The fact remains that the Founding fathers as well as early government officials all prayed publicly and openly. They wanted and guaranteed freedom of religion. Instead, this man is having others’ religious views forced upon him.

            By the way, it was atheists who brought about this issue. Better invest in some news sources.

          • Guzzman

            So what the courts decide can be ignored? Screw the rule of law if you happen not to agree with it – got it. No one ever claimed the Supreme Court is infallible. There is no choice but for lower courts to follow Supreme Court pronouncements even if they think they are wrongly decided, as occurred with the Dred Scott decision. Bad decisions have to be followed until the Court itself overturns them or states amend the Constitution. The Supreme Court can certainly overrule itself and it has done so before on issues such as slavery, inter-racial marriage, sexual conduct, and women’s rights.

            Just because the Court has overruled itself in the past does not in any way imply that it will do so in the area of Establishment Clause jurisprudence. The Court has consistently and repeatedly ruled that government is mandated to remain neutral on religious matters. As it stands, that is the law and lower courts must follow it until the Court overrules itself (extremely unlikely based on stare decisis) or else states amend the U.S. Constitution (even less likely because all state constitutions have some form of separation of religion and government embedded in them).

            You wrote, “…it was atheists who brought about this issue.” Uh, it was Coach Kennedy who filed a lawsuit against the school district. Kennedy lost at the District Court level because he used his government position to promote his personal religious beliefs. He then appealed that decision to the 9th Circuit Court of Appeals and lost. Then he recently tried to get reinstated as coach, and he lost that on appeal as well. You’re saying Kennedy is an atheist? What are you talking about?

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            So you disagree with Martin Luther King, Jr., when he said unjust laws should be disobeyed? Got it.

          • Guzzman

            How is it an “unjust law” to prohibit government employees from using the authority of their positions to promote their personal religious beliefs?

            Coaches wield substantial power over student players. The students feel intense pressure to conform to what the coach wants. When a coach is acting like a pastor, students feel compelled to join in whether or not it is “voluntary.” Parents have a right to raise their children in the religious beliefs of their choosing. Public schools, which are an arm of government, should not be infringing on this basic right of parents. That is one reason why we have a “separation between religion & Gov’t in the Constitution of the United States” (Madison, Detached Memoranda, circa 1820).

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            You keep going round and round, trying to avoid the fact that the Founding Fathers, including Presidents, prayed publicly and often. They wanted all Americans to have that same right.

          • Guzzman

            You wrote, “the Founding Fathers, including Presidents, prayed publicly and often.” I already addressed that issue, but here goes again.

            Elected officials, such as presidents, are free to pray, talk about their faith, the role it plays in their lives, and how it influences their approach to policy issues, but they must not use the authority of their offices to proselytize or impose particular religious beliefs or practices on others. Elected officials are given great leeway in their expressive practices because it is difficult to distinguish when they are speaking on behalf of the government or from their own personal experience.

            Some of the Founders may have prayed in public, and probably did so as private citizens. Such practices do not constitute an official act of government.
            And some of the more prominent ones were religious skeptics and deists who did not believe in the supernatural at all. Jefferson stated, “I have examined all the known superstitions of the world and I do not find in our particular superstition of Christianity one redeeming feature,” and “Christianity . . . (has become) the most perverted system that ever shone on man.” Thomas Paine wrote an entire book (“The Age of Reason”) criticizing the legitimacy of the Bible, calling it a “fabulous mythology.”

            But the Founders set aside their personal religious views when writing the U.S. Constitution because these men, with all of their religious differences of opinion, shared a commitment to the “separation between religion and government” (Madison, can. 1820).

            The coach was not an elected official. He had authority over impressionable children, and the children had a right to not feel coerced in confirming to what the coach wanted. Many parents complained to the school, and the courts sided with the parents. Coach Kennedy abused the authority of his government position by using it to promote his personal religious beliefs while acting in his official capacity at school-sponsored events, on school property, while he was supposed to be performing his post-game duties.

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            If a President can pray publicly, so can the average citizen pray publicly. Logic, man, logic.

          • Guzzman

            You wrote, “If a President can pray publicly, so can the average citizen pray publicly.” I already explained why the courts give tremendous leeway to elected officials when it comes to religious expressive activity. It is virtually impossible, at any given ceremony or political event, to tell when a presidential address is official government speech or the mere opinion of a private citizen. Courts have given constitutional cover to politicians and elected officials under the guise of “ceremonial deism.”

            You are creating a false equivalence between generic civil religion (ceremonial deism) and institutional separation of religion and government. Politicians and elected officials can spout all day long about their faith, the role it plays in their lives, and how it influences their approach to policy issues, but they cannot violate the institutional separation of religion and government by using the authority of their offices to proselytize or impose particular religious beliefs or practices on others.

            And you are wrong about Coach Kennedy merely praying, and doing so alone. From Kennedy v. Bremerton School District, 2017:

            “Between 2008 and 2015, he [Kennedy] led students and coaching staff in a locker-room prayer prior to most games. He also participated in prayers that took place in the locker room after the games had ended.”

            “Kennedy began performing these prayers [at the 50-yard line] when he first started working at BHS. At the outset, he prayed alone…. Over time [as students joined him], the group grew to include the majority of the team. Sometimes the BHS players even invited the opposing team to join.”

            “Eventually, Kennedy’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy, who raised a helmet from each team and delivered a message containing religious content. Kennedy subsequently acknowledged that these motivational speeches likely constituted prayers.”

            Kennedy plainly violated the institutional separation of religion and government by essentially acting as some sort of pastor. Kennedy abused the authority of his government position by using it to promote his personal religious beliefs while acting in his official capacity at school-sponsored events, on school property, while he was supposed to be performing his post-game duties. Did I mention this is settled law?

          • Guest✓ᵛᵉʳᶦᶠᶦᵉᵈ

            Circular reasoning, Guzz. 🙂

  • james blue

    And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

  • Rod Gervais

    I do not see them winning this case in the Supreme court…there is no constitutional right to free speech in the workplace

  • Guzzman

    Kennedy was a coach at a public school. A public school is a government entity. The coach, acting in an official capacity as a government employee, is not permitted to lead or join students in prayer. The federal courts have ruled on virtually identical cases. This is settled law.

    Coaches wield tremendous power over student players who feel pressure to conform to what the coach wants. If a coach is acting like a pastor, students feel compelled to join in whether or not it is “voluntary.” Parents have a right to raise their children in the religious beliefs of their choosing. Public schools should not be infringing on this basic right of parents.