Joe Kennedy says his constitutional rights were violated when he was suspended from his coaching job for praying at the 50-yard line after high school football games in western Washington state.
“Every American should be able to have faith in public and not have to be worried about being fired over it,” he said in an interview. Kennedy, a Christian, says his prayers were meant to fulfill a covenant to praise God after every game “win or lose.”
“I think it is important to keep our promises – especially to God,” he said.
On Monday, the US Supreme Court will take up Kennedy’s appeal in the latest religious liberty case to come before the justices. So far, the court’s conservative majority has been moving to expand protections for religious believers.
For critics of Kennedy, the case represents a possible first step toward reimposing prayer in public schools and blurring the lines between church and state. But supporters counter that the case turns on free speech rights.
“It is a case about protecting all individuals’ right to speak freely – and to pray – in the public square,” Richard W. Garnett, a law professor at the University of Notre Dame, said in a statement.
Kennedy served as an assistant coach for Bremerton High School’s varsity football team and head coach for the school’s junior varsity squad in Washington state. He alleged that his rights were violated when the school district prohibited him from praying at the conclusion of football games, potentially surrounded by students and members of the community.
The district said it never disciplined him from offering silent, private prayers – a practice that began in 2008 soon after he was hired – but things changed after players joined him on the field and the crowd was still in the stands.
A photo of Kennedy praying, with about 20 players in uniform kneeling with him, is a part of the record.
Kennedy was ultimately put on paid administrative leave and suspended from the program. After the season, he was given a poor performance evaluation. He did not seek a new contract but instead filed suit, arguing that the school district had violated his rights under the First Amendment.
He lost his case at the district court level and before the 9th US Circuit Court of Appeals. The appellate court held that Kennedy’s prayer amounted to governmental speech that is not protected by the First Amendment.
“Kennedy spoke as a public employee when he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents,” the court said. Even if Kennedy had been speaking as a private citizen, the court said the school had a justification for treating him differently than other members of the public in order to avoid the appearance that the school was endorsing a particular faith, in violation of the Establishment Clause of the Constitution.
The court said its opinion “should not be read” to suggest that a teacher couldn’t bow her head in silent prayer before a meal in the school cafeteria, calling that type of expression of a “wholly different character” than a coach who “insisted that his speech occur while players stood next to him, fans watched from the stands, and he stood at the center of the football field.”
The appeals court pointed out that the school district – before placing Kennedy on leave – offered to accommodate his religious exercise in a way that “would not be perceived as District endorsement of religion” by providing that a private location within the school be made available to him, or allowing him to wait until the crowed dissipated before taking a knee.
But Kennedy rejected the accommodations.
“They said I could pray as long as it didn’t interfere with my coaching duties … but the accommodations they gave me completely removed me for a long period of time away from the very job I had been hired to do,” he told CNN.
He said the school district’s accommodation also didn’t sit right with him because he felt it would force him to “hide” who he was.
“There is nothing wrong with prayer – I don’t care who you pray toward, if you have faith or do not have faith – you have the same rights across the board as all Americans of any belief,” he added.
Paul Clement, a lawyer for Kennedy, argued in court papers that public school employees do not have a constitutional right to “inject prayer or proselytization into their official duties” but said “the government does not establish a religion by allowing private religious expression.”
“A public school does not endorse religion by declining to silence private religious speech on school grounds, including the private religious speech of teachers and coaches,” Clement said.
At an earlier phase of the case, when the dispute briefly came before the US Supreme Court, four justices suggested serious doubts about a lower court opinion that went against Kennedy. Justice Samuel Alito wrote at the time that the lower court’s understanding of “free speech rights of public school teachers is troubling and may justify review in the future.”
Richard Katskee, a lawyer for Americans United for Separation of Church and State, a group representing the school district, told the justices that Kennedy’s prayer practice was “not private, personal prayer.”
Instead, he argued, Kennedy was seeking to pray in his capacity as a coach and had at one point invited others to join him midfield so he could pray with them.
“The District, the students and Kennedy himself all understood that when he prayed aloud, at the 50-yard line, with the team, at the end of games, he did so as a coach,” Katskee said. He emphasized that even if the court viewed Kennedy’s speech as private, the school district had adequate justification to restrict it because it was entitled to “prevent disruption of and maintain control over school events.”
For example, Katskee said, a Satanist group had come forward to demand the same access to the filed.
He also noted that one player felt compelled to participate, fearing that if he didn’t, he wouldn’t get to play as much.
“For students who did not want to participate in Kennedy’s practice, the decision to stay true to their own beliefs required them to stand up, turn their backs on the team, literally and figuratively, and walk away, in full view of coaches, teammates, classmates, teachers and the entire school community,” Katskee said.
Kennedy told CNN he was stunned by the attention his case has brought.
“It was such a small thing for such a small amount of time, I’m actually lost on the whole situation– it makes no sense to me,” he said.