A former Washington state public high school football coach who lost his job after praying with his players at the end of games is asking the Supreme Court to affirm his right to kneel at the events.
In a writ of certiorari filed with the High Court earlier this week, attorneys for former Bremerton School District (BSD) football coach Joe Kennedy told the Justices that Kennedy lost his job because of his praying and that two lower federal courts erred in not upholding his First Amendment rights.
“Petitioner Joseph Kennedy lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended,” the writ said.
“After considering an interlocutory petition in which Kennedy sought review of the lower courts’ refusal to grant him a preliminary injunction, four members of this Court observed that ‘the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future,’ but concluded that [the Supreme Court] should stay its hand until the lower courts definitively determined the reason for Kennedy’s termination.
“The statement also noted that Kennedy had a then-unaddressed claim under the Free Exercise Clause. On remand, the lower courts found—and the school district ultimately agreed—that Kennedy lost his job solely because of his religious expression. Yet the Ninth Circuit nevertheless ruled against him again.
“The court not only doubled down on its ‘troubling’ free-speech reasoning, which transforms virtually all speech by public-school employees into government speech lacking any First Amendment protection, but reached the remarkable conclusion that, even if Kennedy’s prayer was private expression protected by the Free Speech and Free Exercise Clauses (which it undoubtedly was), the Establishment Clause nevertheless required its suppression.”
Kennedy is represented by attorneys with the First Liberty Institute, a Plano, Texas-based public interest law firm that specializes in religious freedom litigation, and with the Kirkland & Ellis law firm of Washington, D.C.
The case thus presents two significant constitutional issues, according to Kennedy’s attorneys.
It asks: “Whether a public-school employee who says a brief, quiet prayer by himself while at school and is visible to students is engaged in government speech that lacks any First Amendment protection,” and “Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.”
The Establishment Clause is the section of the First Amendment to the U.S. Constitution that says Congress shall “make no law respecting an establishment of religion.” The text goes on to say Congress shall make no law “prohibiting the free exercise” of religion.
If the High Court accepts the case, the earliest it would be heard would be oral arguments in the spring of 2022, with a decision possibly being announced in July 2022. It is also possible the decision could come later in the year during the 2022 congressional election campaign.
The writ noted that the Justices should accept Kennedy’s case because the U.S. Court of Appeals for the Ninth Circuit violated three foundational doctrines regarding the First Amendment’s guarantee of free exercise of religion.
“The court managed to botch three separate lines of First Amendment jurisprudence in one fell swoop, eviscerating the free-speech and free-exercise rights of public-school teachers and coaches to avoid a Potemkin Establishment Clause concern,” the writ argued.
“Three terms ago, four [Supreme Court] Justices indicated that just one of those constitutional missteps might suffice to justify plenary review on a full record. The case for certiorari at this juncture is overwhelming: The record is now complete; the decision below is now final; and the Ninth Circuit has now doubled down on its highly troubling free-speech conclusion, and added free exercise and establishment conclusions that are indefensible. The resulting decision is a triple threat to individual liberty and First Amendment values,” it added.
During the lower court litigation, BSD attorneys denied that Kennedy was fired for exercising his First Amendment rights, but rather because he insisted on doing so in public immediately after games when spectators and students were still in the stands.
Kennedy “was disciplined only after BSD tried in vain to reach an accommodation with him after he [in a letter from his counsel] demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands,” the BSD attorneys claimed.