Liberties Reporting on First Amendment freedoms

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 West

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.

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  • OldMike
    Posted: Fri, 03/19/2021 09:41 pm

    When I hear about someone like Coach Kennedy, Matthew 6:5-6 comes to mind. 

  • Steve Shive
    Posted: Sat, 03/20/2021 07:22 am

    Frankly I don't know why he has to pray at the 50 yard line. It is clearly intended to be a display. Though I don't see Matthew 6 necessarily applying here it is certainly worth bearing in mind. That is if it were me.  But at the same time this nonsense about the separation of church and state, the school's sanction and approval are clearly nuanced as an antagonistic perspective against exercise of religion. I also like the quote, “'The objective observer always seems to be the perpetually offended observer,' Dys said." 

  • AlanE
    Posted: Sun, 03/21/2021 05:40 pm

    These are some of the better comments I've ever seen on an article. Steve Shive, I'm curious, why don't you see Matthew 6 applying here? I suspect we all have lines we draw between prayers for public consumption and prayers for private practice, the fact that Jesus seems to brush that distinction aside has always left me a bit perplexed. I'd be interested in hearing more of your thinking.

  • Steve Shive
    Posted: Mon, 03/22/2021 05:29 am

    Good question, Alan E.

    Please note that I used the caveat of "necessarily." This is because the passage in Matthew referenced by OldMike does have some fairly clear historical and strategic parameters. Note that:

    1) Jesus uses the word that is translated as "hypocrite" The root idea is of a "dissembler or pretender" aka a "play actor" (this is from BDAG the best NT Greek lexicon)

    2) Also the idea of "that they may be seen" is from the word that has the idea of shining, not just the concept of simply being seen with the eyes.

    3) At this time prayers and discussion of scripture was typically by men in the synagogue. Standing on street corners seems a bit over the top and for the wrong reasons

    4) The context seems to be about motives behind our actions. How do we judge these?

    Step back and think about some of the activities and actions of the prophets, OT and NT. They were certainly in the limelight and were to be seen and their purpose was to broadcast news from and about God. Were they "Hypocrites"? Or "play actors" or "pretenders"? Did Matthew 6 apply to them? This is the challenge we face when using short snippets of scripture to apply to just about any situation. Context matters.

    If the prophets were acting on their own initiative and for their own glory and recognition (vis a vis the "false" prophets) they would come to a certain end... after also receiving public glory. But if they were doing what they did because of some pure motivation, such as Amos, then they were honoring God. Note that Amos heard God's "roar" and had no choice but to go to Bethel and prophesy. This type of motivation was behind God's prophets. Often to a less than glorious end.

    So in 21st century America why would someone kneel at the 50 yard line to pray after a football game? America certainly needs prophetic actions and pronouncements. Could this be Coach Kennedy's motivation? God knows. And of course we know that many of the prophets were not well received by their intended audience. If pure, I applaud Coach Kennedy. 

  • Cyborg3's picture
    Posted: Tue, 03/23/2021 12:59 am

    All this talk about Matt. 6:5-6 seems so out of place here. The Pharisees sought the praise of men rather than the praise of God. This coach is seeking the praise of God by allowing the praise of God at a sports game if individuals want to do this. Our religious rights are slowly being taken from us and this coach is standing up to our secular society who want to remove these same liberties. Yes, we need to protect these liberties and this coach is not getting any accolades (or very few) for doing it.

  • Steve Shive
    Posted: Tue, 03/23/2021 06:30 am

    One thing is clear, "all of this talk" certainly applies. Do we live our lives and make daily decisions on how to live, what is moral vs immoral, based on the First Amendment? Or the Constitution? Or based on scripture? Of course there are many who seem to think that we are Americans first, a chosen nation, and Christians second. That we need to stand up against the tide of the gradual erosion of our "rights." There is some truth to this but is it an overriding truth?

    We have dual citizenship as scripture clearly indicates, especially Paul in his letter to the Philippian church. Though Jesus points out that he is "not of this world" and his audience was "of this world." As American citizens we must choose on a daily, hourly, basis whether we are bound by civil or heavenly "laws". And when in conflict what do we do?

    The so called erosion of our rights is nothing new. I'm not convinced it is "gradual". But the bigger truth and concern is that the enemy of our souls is seeking to destroy anything and everything of heavenly design. So Matthew 6 and all of scripture is where we start in our decision making. Not the Constitution or Bill of Rights. They come later, maybe. So, yes, "all of this talk" about the Sermon on the Mount is of utmost importance. And I do have at ready hand a copy of the Constitution. But strangely it gives me no guidance on how to live in this fallen world.

  • Cyborg3's picture
    Posted: Wed, 03/24/2021 03:01 am

    I would say that we were saying pretty much the same point until you came out of left field with your response to my post. It leads me to wonder if you understand our countries founding and what significance that had on our Constitution, Declaration of Independence and other historical documents. And what exactly is our goal as Christians living in the country that we do? What is our political objective? Hint: 1 Tim. 2:1-4

  • Steve Shive
    Posted: Thu, 03/25/2021 04:30 am

    "What we have here is a failure to communicate."

  • Janet B
    Posted: Tue, 03/23/2021 03:16 pm

    In answer to the comments that his praying on the 50-yard line is intended to be a display, I wonder:  does anyone know how long the Coach had been doing this before someone decided to object and it became a national show?  Did he do it one night in grateful response to God's blessing, and just contine no matter whether the team won or lost?  What do we know about his motivations?

    So I think, perhaps, it is Matthew 7:1-5 that is more appropriate here.  We must be very careful.

  • Steve Shive
    Posted: Tue, 03/23/2021 06:23 pm

    I believe the article answers your question Janet, "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..." 

    Who is judging him? The school district?