Supreme Court takes up case of a coach and his prayers on 50-yard line

Joseph Kennedy’s case brings questions about the ability of public employees to live out their faith while on duty and the government’s responsibility to protect schoolchildren from coercion

By Robert Barnes, April 21, 2022

BREMERTON, Wash. — Almost everyone agrees it should not require two trips to the U.S. Supreme Court to settle the case of a high school football coach who wants to pray at the 50-yard line.

Maybe former Bremerton High School assistant coach Joseph Kennedy could have conceded that his postgame prayer of gratitude could take place somewhere other than midfield, or discouraged what one judge called a “spectacle” of stampeding supporters and politicians who rushed after one game to kneel beside him on the gridiron.

Maybe the school district could have offered an accommodation that didn’t require Kennedy to climb to the stadium press box, or retreat to a janitor’s office in the school, to offer his prayer. Instead, it prohibited him from any “demonstrative religious activity” that is “readily observable to (if not intended to be observed by) students and the attending public.”

Nonetheless, Kennedy v. Bremerton School District arrives before the justices Monday. It brings vexing questions about the ability of public employees to live out their faith while on duty and the government’s competing responsibility to protect schoolchildren from coercion and to remain neutral on the subject of religion.

The case offers a court that has recently been overwhelmingly protective of religious rights the chance to transform decades of Supreme Court jurisprudence that started 60 years ago with the admonition that government cannot organize and promote prayer in public schools.

Four justices sympathized with Kennedy a couple of years ago when the case first reached the Supreme Court, but it was deemed premature for consideration. Now, it pits red states against blue ones, some professional football players against others, divides constitutional experts and has drawn more attention — 57 friend-of-the-court briefs — than any case at the Supreme Court this term, except for the controversies over abortion and gun control.

It also split the U.S. Court of Appeals for the 9th Circuit, where a slim majority of judges ruled for the school district. They cited Supreme Court precedent that limits the speech rights of on-duty public employees, and said the district was warranted in worrying that allowing Kennedy’s public prayer would violate the constitution’s prohibition on government endorsement of religion.

That ruling was denounced in a filing by 24 Republican U.S. senators and 32 representatives.

“The Ninth Circuit’s reasoning weaponizes the Establishment Clause, concluding that it requires a school to root out any religious expression by its employees — even to fire teachers, coaches, and staff who will not leave their faith at home,” the brief states. “If left uncorrected, this ruling threatens religious liberty … for all public employees.”

Those supporting the school district say that Kennedy has radically recast the events that led to his dismissal and that his actions during the 2015 football season were hardly private acts of faith. His Facebook post — “I think I just might have been fired for praying” — drew national attention and elicited support from prominent advocates, including former president Donald Trump and Fox News pundits.

But the district’s supporters say Kennedy’s rights are no more important than those of students and parents who do not want to mix religion and school instruction.

Kennedy seeks to characterize the school district’s “concern for the religious freedom and equality of its students as nothing more than hostility to his own religious practice — a move that turns on its head decades of well-reasoned school prayer jurisprudence,” said a brief filed by 11 law professors who identify themselves as “church-state scholars.”

“It does not reflect religious hostility, but instead vindicates religious equality, for a school to require that its employees avoid coercing or compelling students (even subtly) to adopt favored religious beliefs or practices.”

Kennedy and his wife — in a town where everyone seems connected, she is the former human relations supervisor for the school district he sued — have moved to Florida to care for her ailing father.

He returned to Bremerton last month to show reporters around his blue-collar hometown of about 40,000. Seattle is a ferry ride away across the Puget Sound, and the outline of the Olympic mountain range is visible from the home-team side of the stadium where the BHS Knights play.

“It never should have been a big thing,” Kennedy said as he greeted former students on the stadium track. “It was supposed to be me and God, that’s it.” Asked if God cares where he prays, Kennedy said: “I don’t think he cares either way. But that was my covenant. So I do.”

‘Others can do the X’s and O’s’

Former Bremerton High School assistant football coach Joseph Kennedy, obscured at center, is surrounded by Centralia High School football players in Bremerton, Wash., on Oct. 16, 2015, after they knelt with him and prayed at the end of their game against Bremerton. (Meegan M. Reid/Kitsap Sun via AP)
When Kennedy’s players would confide about their troubles, he would say he understood, because he had seen worse.

He describes a terrible childhood in Bremerton and elsewhere, with uninterested adoptive parents, foster homes and a stint at a boy’s home in Eastern Washington.

“I was always in trouble. I got kicked out of just about every school here,” Kennedy said on a drive through town, pointing out landmarks. “Always fighting and in trouble for something, total disregard for authority. … I was a terrible kid; I can admit that now.”

He was at times homeless, and one of the stops on the tour is a Catholic church where he said he sneaked in and spent the night when he was 9. Another is the apartment where he lived by himself during high school. He didn’t play football, because he was too small.

Kennedy enlisted in the Marine Corps as soon as he got his diploma, an experience, he said, that put him back on the right path. He said he was saved when he asked God for help one night when he and his wife were having troubles.

He said it’s hard to explain how that felt: “When they say you’re saved, it makes sense to me now what saved means. I was saved from who I was at that time.”

A chance encounter with the BHS athletic director led to the part-time job coaching the junior varsity and assisting with the varsity teams. He knew nothing of football strategy. “Others could do the X’s and O’s; I wanted to help them be the best young men they could be,” Kennedy said.

As he was considering the offer, he said he watched a movie popular in Christian circles called “Facing the Giants,” where a football coach pledges his gratitude to God. “I broke down. I was bawling my eyes out,” Kennedy said.

He said he told God he would take the coaching job. “And I will give you the credit after every game, win or lose, right there on the battlefield,” he said.

For years, Kennedy took a knee and bowed after games, and nothing came of it. From the stands, it might have looked like nothing more than someone tying a shoe. But then some of the Knights decided they would pray, as well. And they invited players from opposing teams. There were prayers in the locker room and photos of what looked like Kennedy praying while holding helmets of both teams.

The school district decided it had a problem in the 2015 season, when an opposing coach told Bremerton’s principal that he “ ‘thought it was pretty cool how [the District] would allow’ Kennedy’s religious activity,” the district said in its court brief.

The homecoming game was the culmination. Kennedy was joined in his postgame prayer by members of the public, a state legislator and the media. “Spectators jumped over the fence to reach the field and people tripped over cables and fell,” the district said in its brief. “School band members were knocked over.”

The next week, a group of Satanists demanded equal access to the field.

By then, Kennedy was represented by First Liberty Institute, a conservative religious group that has brought other religious rights challenges to the Supreme Court. Hiram Sasser III, a lawyer for the group, says his organization did not see the case as another one of those.

While the district’s brief says Kennedy’s lawyers turned the impasse into a media spectacle, Sasser says the district is at fault. He said he thought it would be a two-week case that “everyone can walk away and feel good about. Then it turned into World War III.”

The case divided Bremerton. Four of Paul Peterson’s children went to BHS. One played football for Kennedy, and others were in the band. He and his wife were regulars at football games, and he said he and Kennedy are friends. Now he is among those who have filed an amicus brief supporting the district.

“Joe and I have talked personally outside of this, and I told him, ‘I like you as a person, I respect your service to the country as a Marine.’ I respect him as a man of great integrity, really,” Peterson said. “I just feel like he’s off-base on this issue. What he’s pushing is an agenda.”

Eventually, Kennedy was suspended with pay. His contract was year-to-year, and, for the first time, he received a negative evaluation. He did not apply for another year and filed suit instead.

As the legal battle dragged on, Kennedy and his wife retired, sold their house and moved to Pensacola, Fla. The Bremerton school district, represented by Americans United for Separation of Church and State, said that should make the case moot, since it is unlikely Kennedy would move back to Bremerton for a job that provides an annual stipend of $5,304.

But Kennedy told the Supreme Court in a sworn statement that if he were allowed to return to his old job, “I can do so within 24 hours of reinstatement.”

What the court must decide

Protesters pray outside the Supreme Court in Washington in November 2021 as arguments begin inside over a Texas abortion law. (Jabin Botsford/The Washington Post)
The case calls for the Supreme Court once again to find the line between the First Amendment’s establishment clause, which forbids government endorsement of religion, and its free speech and free exercise clauses, which forbid restraints on the private observance of religion.

The 9th Circuit majority said the district was justified in its actions. The Supreme Court has recognized that public employees give up some of their First Amendment rights, because their speech can be construed as being that of the government. And the appeals court said that even if Kennedy’s prayers could be seen as private speech, the district could take action to avoid the appearance of an establishment clause violation.

Kennedy’s lawyers told the Supreme Court in his brief that the reasoning “is incompatible with this court’s precedents and the traditions of religious liberty they embody.”

“Teachers and coaches remain individuals with First Amendment rights on school premises, and the suppression of the individual religious expression of teachers and coaches is not permitted, let alone required, by the First Amendment,” the brief says.

It cites the court’s landmark 1969 decision that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In an amicus brief filed by Minnesota Vikings quarterback Kirk Cousins and others, the court is asked to imagine Kennedy taking a knee for another reason — to protest racial injustice during the playing of the national anthem.

“That practice, like Kennedy’s prayers, is controversial — courageous to some and offensive to others,” the brief says. “But if Joe Kennedy had taken a knee to protest racial injustice, the District almost certainly would not have argued that his speech was somehow the state’s. Rather, there would have been no question that it was protected private speech.”

Kennedy starts with an advantage — four justices of the court in 2019 were skeptical of the 9th Circuit’s handling of the case at an early stage. “What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith,” wrote Justice Samuel A. Alito Jr., joined by colleagues Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh.

The district contends that Kennedy’s “breathless tale of authoritarian government forbidding private religious expression … relies on creative remodeling of both the facts and the law.” It said it permitted for years Kennedy’s private prayers after games but stepped in only when they became demonstrations of faith that reflected on the district.

“Public-school coaches can and do help students ‘be better people,’ ” the district said in its brief. (School officials declined interview requests.) “But spiritual guidance should come from students’ families and houses of worship, not the government. … The District’s interests in protecting students from religious coercion and in preventing employees from commandeering government events outweigh Kennedy’s interest in praying with the students on the 50-yard line.”

The case is Kennedy v. Bremerton School District.

[wapo.st]