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9th Circuit again denies high school football coach right to pray on football field after games

Joe Kennedy
Coach Joe Kennedy filing his complaint with the Equal Employment Opportunity Commission in December 2015 against Bremerton School District. |

A three-judge panel of the United States Court of Appeals for the Ninth Circuit has ruled against a high school football coach who was fired from his job for praying on the field after games.

For years, high school football coach Joseph Kennedy has pursued legal action against Bremerton School District in Washington state for suspending him due to his prayer practices.

Namely, this involved him praying at the 50-yard line after games, often being joined by players and sometimes giving a motivational speech.

In a unanimous opinion released Thursday, the panel said Kennedy’s practice of praying on the 50-yard line after games was a violation of the Establishment Clause of the U.S. Constitution.

“BSD’s efforts to prevent the conduct did not violate Kennedy’s constitutional rights, nor his rights under Title VII,” wrote Judge Milan D. Smith Jr. in the panel's opinion.

“In sum, there is no doubt that an objective observer, familiar with the history of Kennedy’s practice, would view his demonstrations as BSD’s endorsement of a particular faith. For that reason, BSD had adequate justification for its treatment of Kennedy …”

The First Liberty Institute, a law firm based in Plano, Texas, which is helping to represent Kennedy, denounced the panel's opinion and vowed to appeal the decision.

“Banning coaches from praying just because they can be seen is wrong and contradicts the Constitution,” stated Mike Berry, First Liberty’s general counsel.

“Today’s opinion threatens the rights of millions of Americans who simply want to be able to freely exercise their faith without fear of losing their job. We plan to appeal, and we hope the Supreme Court will right this wrong. This fight is far from over.”

Americans United for Separation of Church & State, a Washington, D.C.-based group that participated in oral arguments on behalf of the school district, supported the panel's opinion.  

“Public schools must provide an inclusive and welcoming environment for all students, regardless of their religious beliefs. That includes ensuring that student athletes don’t feel compelled to pray or participate in religious activities to secure their place on a team,” stated Americans United Legal Director Richard B. Katskee.

“Bremerton School District did the right thing: It protected the religious freedom of all the students and their families. Americans United was proud to support the district’s efforts.”

In 2016, Kennedy sued the school district after being suspended in 2015 for his practice of praying on the football field after games, accusing officials of violating his religious freedom.

A three-judge panel of the Ninth Circuit had previously ruled against Kennedy in 2017, with Smith also authoring that unanimous opinion.

“We conclude that Kennedy spoke as a public employee, not as a private citizen, and therefore decline to reach whether BSD justifiably restricted Kennedy's speech to avoid violating the Establishment Clause,” wrote Smith in 2017.

“Kennedy accordingly cannot show a likelihood of success on the merits of his First Amendment retaliation claim, and is not entitled to the preliminary injunction he seeks.”

In his 2017 opinion, Smith called Kennedy's prayer practice "constitutionally unprotected" and warned that it "can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all."

In 2019, the U.S. Supreme Court declined to hear an appeal in the case, sending the case back to the lower court level, with U.S. District Court Judge Ronald Leighton ruling against Kennedy in 2020.  

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