Taking a stand for taking a knee
Joe Kennedy, the former Washington state high school football coach reprimanded and then fired for taking a knee and praying on the 50-yard line at the conclusion of each game, lost his appeal to the 9th U.S. Circuit Court of Appeals. The loss is significant but so too is the potential breadth of the Aug. 23 decision, which could stymie any public religious expression or display by public school personnel, Kennedy’s attorney said.
Jeremy Dys, an attorney with First Liberty Institute, which represents Kennedy, told me they are considering all legal options, including an appeal to the U.S. Supreme Court.
Kennedy had sought a preliminary injunction against the Bremerton School District in 2015 that would have reinstated him as coach and allowed him to silently offer his post-game prayer, which he has done since 2008 without public complaint. He never asked anyone to join him, but over the years players and students from both competing teams joined the coach at the center of the field. Kennedy then began giving brief motivational talks that included religious references. After someone drew the district’s attention to the events, the district told Kennedy to halt all public displays of prayer, saying his action violated the Establishment Clause of the First Amendment to the U.S. Constitution.
The 9th Circuit agreed.
“When Kennedy kneeled and prayed on the 50-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected,” Judge Milan Smith wrote in the 3-0 decision.
The ruling presumes Kennedy took advantage of his position “to press his particular views upon the impressionable and captive minds before him.” Dys said that standard, and the doubling down in a concurring opinion, that Kennedy’s actions breach the Constitution’s Establishment Clause could make every public display of faith an actionable offense.
Taking a knee in prayer, even for an injured player, could get a public school employee reprimanded, he said. The ruling essentially bans all displays of religion—including wearing kippahs or crucifixes—while on duty.
“That highlights how dangerous this decision is,” Dys said. —B.P.