Sidelined praying coach fights on
Religious Liberty | Appeals court rejects coach’s claim midfield prayer was private
by Steve West
Posted 3/19/21, 06:05 pm
A federal appeals court Thursday rejected a Washington high school football coach’s claim that he had a right to kneel and pray at the 50-yard line at the end of football games.
The Bremerton School District fired Coach Joseph Kennedy in 2015 because he defied directives by school officials to end his longtime practice of kneeling in a short, midfield prayer after games. Players, other students, and parents often joined him. Kennedy lost challenges to his firing in federal district court and in the 9th U.S. Circuit Court of Appeals.
In January 2019, the U.S. Supreme Court declined his appeal, returning the case to the district court, but conservative justices offered him some hope. They ordered the lower court to resolve factual questions about how the school set and enforced its policy and then rule on the religious freedom claims. But the district judge later said the school’s actions were necessary to avoid violating the separation of church and state.
Thursday’s decision by a three-judge panel of the liberal-leaning appeals court cemented the ruling. In a 40-page opinion, 9th Circuit Judge Milan D. Smith, an appointee of President George W. Bush, concluded that even if Kennedy engaged in private and personal activity, the publicity that surrounded his prayer suggested it had the school’s stamp of approval.
“At issue was—in every sense of the word—a demonstration, and, because Kennedy demanded that it take place immediately after the final whistle, it was a demonstration necessarily directed at students and the attending public,” Smith said. Referencing a photo of huddled players bowed in prayer around Kennedy, Smith said, “viewing this scene, an objective observer could reach no other conclusion than that [the school district] endorsed Kennedy’s religious activity by not stopping the practice.”
Smith also rejected Kennedy’s claim that the firing violated his right to free exercise of religion and constituted religious discrimination. The school district had a compelling interest in not endorsing religion, and it attempted to accommodate the coach’s desire to pray, he said. He wrote that Kennedy was fired not because of his religion but for his lack of cooperation.
First Liberty Institute’s Jeremy Dys, who represents Kennedy, said the court failed to adequately distinguish between an unconstitutional situation—like when a coach or teacher leads students in prayer—and situations in which school employees properly exercise their private right to worship. Coach Kennedy was praying silently and briefly on his own, Dys said. When students sought to join him, he said, “This is a free country. You can do what you want.”
Dys also questioned the court’s perception that an objective observer would believe the school endorsed Kennedy’s prayer. “The objective observer always seems to be the perpetually offended observer,” Dys said.
In a concurring opinion, 9th Circuit Judge Morgan Christen emphasized the limits of the court’s ruling. “No case law requires that a high school teacher must be out of sight of students or jump into the nearest broom closet in order to engage in private prayer,” explained Christen, contrasting Kennedy’s public demonstration with a teacher bowing in prayer before a meal in the high school cafeteria or giving thanks after an “all clear” announcement following a safety scare.
Yet those distinctions remain unclear, Dys said, and First Liberty plans to appeal. “We need the Supreme Court to give clarity as to whether public school employees are going to be punished for praying over their salad at lunchtime in the cafeteria, wearing a crucifix in the hallway, or donning a yarmulke in the classroom,” adding that “without that, I don’t think I can give much comfort as to where the line might be.”
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.