A Washington state high school football coach who was let go for praying on the field after games won’t get his free speech case heard by the Supreme Court — at least for now.
The court on Tuesday declined to hear arguments in Kennedy v. Bremerton School District, which pits former assistant football coach Joe Kennedy against the Seattle-area public school that did not rehire him after he refused to stop praying on the 50-yard line following games.
But conservative justices left open the possibility of the case’s return to the high court, Mr. Kennedy’s attorney said.
“Procedurally, we’ve got some things to iron out,” attorney Mike Berry, deputy general counsel for the nonprofit First Liberty Institute, said in a phone interview after Tuesday’s decision. “But we’re very encouraged by the court’s statement.”
In a statement on declining to hear arguments, Justice Samuel A. Alito Jr. said the court needed more information to make a decision. Justices Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas joined the statement.
“[I]mportant unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review,” Justice Alito wrote.
According to the justice’s statement, the lower court needs to ascertain whether Bremerton schools declined to rehire Mr. Kennedy because his short, postgame praying on the field conflicted with his job requirements to monitor students or if his activity — which was viewable from the stands — amounted to a public endorsement of religion.
On Tuesday, Mr. Berry painted a portrait of a coach who only sought the right to give thanks to God.
“Coach [Kennedy] started [praying] from the very first game he ever coached, in 2008,” the attorney said. “Two or three students saw him doing this and approached him and asked him, ’Are we allowed to do that?’ And, ironically, Coach told them, ’It’s a free country.’”
According to his attorney, Mr. Kennedy prayed “for thanks” on the field, often by himself, for 15 to 30 seconds. Reports by The Seattle Times say that he often was joined by players, sometimes from the opposing team, and even parents.
“I’ve been to Bremerton football games,” said Mr. Berry. “If you were to watch from the stands, you could not tell whether [Mr. Kennedy] was kneeling down to tie his shoes or to look for a lost contact lens.”
But in 2015, amid growing criticism, the school district drew a hard line. After Mr. Kennedy prayed at the 50-yard line with players following a game on Oct. 16, 2015, the district sent a letter to the coach requesting him not to engage in any “demonstrative religious activity” that was “readily observable.” He prayed again the next week and was subsequently placed on administrative leave.
Bremerton schools later opted to not rehire him.
Mr. Kennedy filed a lawsuit, saying the school district infringed upon his religious and personal rights. He sought an injunction to reinstate him as coach and a letter from the district allowing him to pray privately on the field.
The U.S. District Court and the U.S. Court of Appeals for the 9th Circuit ruled against Mr. Kennedy in 2017. U.S. Circuit Judge Milan D. Smith Jr. wrote that the coach “took advantage of his position to press his particular views upon the impressionable and captive minds before him.”
“Students shouldn’t have to pray to play on their high school football team,” Rachel Laser, chief officer of Americans United for Separation of Church and State, said Tuesday in a statement. “The coach’s actions were a clear violation of religious freedom, forcing kids to choose between their own beliefs and appeasing the man who decides the lineup for the game. This is not a dilemma any child should face.”
Mr. Berry said Tuesday he would seek to reopen the case at the district court level to address the questions raised in Justice Alito’s statement.
The lower court opinion referenced Garcetti v. Caballos, a 2006 case in which the Supreme Court ruled that a Los Angeles County attorney did not have an uninhibited expectation to exercise the Free Speech Clause of the First Amendment as a public employee. In that case, newly appointed Justice Alito offered the deciding vote against the public employee’s lawsuit.
On Tuesday, Justice Alito described the appellate court’s application of Garcetti as too broad. In his statement, he scolded the 9th Circuit, expressing confusion about why the appeals court cited prayer-related activities that occurred after the school district fired Mr. Kennedy — including when Mr. Kennedy, as a private citizen, prayed in the stands of a football at the school.
“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 — even when the coach is plainly not on duty,” Justice Alito wrote.
The case has attracted national attention. Retired Florida State University football coach Bobby Bowden has spoken out on Mr. Kennedy’s behalf. In 2015, then-candidate Donald Trump also tweeted support for the assistant coach.
• Christopher Vondracek can be reached at cvondracek@washingtontimes.com.
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