A Marine Makes a Commitment to God

Coach Joe Kennedy, a twenty-year Marine veteran, was an assistant coach for the Bremerton High School (BHS) varsity football team. Before he even coached his first game, the Marine-turned-football coach made a commitment to God that he would give thanks at the conclusion of each game for what the players had accomplished and for the opportunity to be part of their lives through football.

After the whistle of his very first football game in 2008, Coach Kennedy waited until the players and coaches met at midfield to shake hands and began clearing the field. Then, while the players and coaches were physically separate from him and engaged in other conduct, Coach Kennedy took a knee and silently prayed, thanking God for his players. His silent, private prayers lasted only 15-30 seconds. Coach Kennedy continued this practice after every game for seven years. No students, coaches or parents ever complained about the practice.

“I think I just might have been fired for praying”

Initially, Coach Kennedy prayed quietly and alone. After several games, students took notice of Coach Kennedy’s post-game silent prayers and asked if they could join him. He told them, “[t]his is a free country” and “[y]ou can do what you want.”  Some players elected to gather near Coach Kennedy after games and, on occasion, BHS players would invite players from the opposing team to join them. Sometimes no players gathered and Coach Kennedy prayed alone.

Over time, Coach Kennedy began offering short motivational speeches to players who gathered after the game. Those speeches sometimes included religious content and a short prayer, but he “never coerced, required, or asked any student to pray” or “told any student that it was important that they participate in any religious activity.”

Seven years after Coach Kennedy’s first prayer, an employee of another high school mentioned the practice to the BHS principal. A BHS administrator “expressed disapproval” to Coach Kennedy, prompting Coach Kennedy to post on Facebook: “I think I just might have been fired for praying.”

An Investigation into “Religious-Related Activities and Practices”

On September 17, 2015, Superintendent Aaron Leavell sent Coach Kennedy a letter informing him of the district’s investigation into whether Coach Kennedy had “appropriately complied with the school board’s policy on ‘Religious-Related Activities and Practices”.”

The district recognized that students had participated voluntarily in Coach Kennedy’s post-game religious expression and acknowledged that Coach Kennedy had “not actively encouraged, or required [] participation.”

Regardless, the district concluded Coach Kennedy’s midfield, post-game prayers with students violated its policies and then set forth new guidelines for Coach Kennedy’s religious expression. According to the district, Coach Kennedy could “engage in religious activity, including prayer, so long as it does not interfere with job responsibilities,” the activity is “physically separate from any student activity, and students [are] not . . . allowed to join such activity.”

Further, the district required that “such activity should either be non-demonstrative (i.e. not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.”

Coach Kennedy Complies with District Requests

In compliance with the district’s directive, Coach Kennedy immediately ceased participating in any group prayers. At the next game, he even abandoned his practice of private post-game prayer. On the way home from the game, he felt upset that he had broken the commitment he had made to God at the outset of his coaching career. So, he turned the car around and returned to the field. Coach Kennedy waited until everyone left both the field and stadium, then walked to the 50-yard line alone and knelt in silent prayer.

The next week, Coach Kennedy retained First Liberty Institute as counsel. First Liberty sent a letter to the district on October 15, 2015, informing them of Coach Kennedy’s sincerely held religious belief that compelled him to pray following each football game. Further, First Liberty formally requested a religious accommodation under Title VII to allow Coach Kennedy to engage in a brief, quiet, solitary prayer at midfield at the conclusion of BHS games.

After the next game, Coach Kennedy walked to midfield for the customary handshake with the opposing team. As instructed by the district’s September 17 letter, he waited until the students began engaging in other conduct “physically separate” from him, such as walking toward the stands to sing the post-game fight song. He then knelt at the 50-yard line, closed his eyes, and prayed a brief, quiet prayer.

While he was kneeling with his eyes closed, coaches and players from the opposing team, along with members of the public, decided to join him on the field and to kneel beside him. Coach Kennedy did not ask anyone to join him and did not know that anyone would join him.

District Appreciates Coach Kennedy’s Compliance, Shifts the Goalposts

On October 23, 2015, hours before the next week’s football game, Superintendent Leavell sent Coach Kennedy a new letter in which he emphasized his “appreciation for [Coach Kennedy’s] efforts to comply with the September 17 directives” by the district.

Superintendent Leavell, days earlier, had described Coach Kennedy’s religious expression as “fleeting,” and recognized that the sole issue now in question was whether “a coach [has a] right to conduct a personal, private prayer . . . on the 50 yard line”, not whether he had a right to pray with students (something Coach Kennedy had immediately ceased doing as soon as the District asked him to do so).

Nonetheless, the district denied Coach Kennedy’s request for a religious accommodation to kneel and offer a silent, personal, brief prayer because, in the District’s view, such conduct would be perceived as “government endorsement of religion.” The district claimed that his religious expression “drew [him] away from [his] work” and that “any reasonable observer saw a District employee, on the field only by virtue of his employment with the District, still on duty, under the bright lights of the stadium, engaged in what was clearly, given your prior conduct, overtly religious conduct.”

The district ended its letter by announcing a new policy: the district now prohibited Coach Kennedy from engaging in any “demonstrative religious activity” that is “readily to (if not intended to be observed by) students and the attending public.”

Under its new policy, the district prohibited Coach Kennedy—or any other employee when on-duty—from engaging in “demonstrative religious activity” within view of any student or the public, either silently or audibly. The only “accommodation” the district offered to Coach Kennedy was to permit him to pray in secret in a “private location within the school building, athletic facility[,] or press box.”

Coach Kennedy Keeps Praying Silently and is Punished

After the BHS football game ended on October 23, Coach Kennedy knelt alone at the 50-yard line and bowed his head for a brief, quiet prayer. After this game, Superintendent Leavell informed him that although this brief, solitary prayer “moved closer to what we want,” it was “still unconstitutional.”

Unwilling to break his commitment to God yet again, when the next game ended and the players began “engag[ing] in other post-game traditions,” Coach Kennedy knelt alone to offer a brief, silent prayer of thanks at the 50-yard line.

Two days later, the district placed Coach Kennedy on paid administrative leave and barred him from “participating in any capacity in the BHS football program”, claiming that Coach Kennedy had impermissibly “engag[ed] in overt, public and demonstrative religious conduct while still on duty as an assistant coach.”

In a public document released by the school district entitled, “Bremerton School District Statement and Q&A Regarding Assistant Football Coach Joe Kennedy,” the district stated that Coach Kennedy “will not participate, in any capacity, in BHS football program activities” until he “affirms his intention to comply with the District’s directives.”

While the district conceded that Coach Kennedy had “complied with [the district’s] directives not to intentionally involve students in his on-duty religious activities,” the district refused to lift its suspension. Coach Kennedy did not return for the following season.

The Legal Battle Begins

First Liberty Institute filed a lawsuit against Bremerton School District in a federal district court in 2016, asking the court to allow Coach Kennedy to continue coaching while the case made its way through court. The District Court, then the Ninth Circuit, denied the request. In 2018, the U.S. Supreme Court also denied the request, but four justices – Alito, Thomas, Gorsuch, and Kavanaugh – expressed serious concern about how the school district and the lower courts had understood the First Amendment rights of public school teachers.

The Supreme Court sent the case back down to the District Court for further litigation. The District Court again sided with the school district in 2020, as did the Ninth Circuit in mid-2021. Attorneys with First Liberty and Kirkland &Ellis LLP refiled the case at the U.S. Supreme Court in September 2021.

The Supreme Court Agrees to Hear Coach Kennedy’s Case

In January 2022, the Justices announced that they would hear the case. The Justices will hear oral arguments on the case at the U.S. Supreme Court in Spring 2022.

“No teacher or coach should lose their job for simply expressing their faith while in public,” said Kelly Shackelford, President and CEO of First Liberty. “By taking this important case, the Supreme Court can protect the right of every American to engage in private religious expression, including praying in public, without fear of punishment.”

Paul Clement, former U.S. Solicitor General, partner at Kirkland & Ellis LLP and First Liberty volunteer attorney, said, “We look forward to presenting the Coach’s case, which goes to the heart of the First Amendment, to the Justices.”

Coach Kennedy added, “Six years away from the football field has been far too long.  I am extremely grateful that the Supreme Court is going to hear my case and pray that I will soon be able to be back on the field coaching the game and players I love.”

News Release
For Immediate Release: 1.14.22
Contact: Lacey McNiel, media@firstliberty.org
Direct: 972-941-4453

Coach Has A Prayer: U.S. Supreme Court to Review Ninth Circuit Decision Preventing Coach from Taking a Knee at Midfield
First Liberty Institute attorneys asking Court to reverse decision allowing school district to fire coach because of his silent prayer

Washington, DC—Today, the U.S. Supreme Court announced that it will hear oral arguments in the case Kennedy v. Bremerton School District, in which attorneys for First Liberty Institute and Kirkland & Ellis LLP, led by veteran Supreme Court advocate Paul Clement, represent Joe Kennedy.  Kennedy, a former high school football coach, is asking the Supreme Court to reverse a lower court decision that allowed a school district to fire him because fans and students could see him take a knee in silent prayer after football games.

“No teacher or coach should lose their job for simply expressing their faith while in public,” said Kelly Shackelford, President and CEO of First Liberty. “By taking this important case, the Supreme Court can protect the right of every American to engage in private religious expression, including praying in public, without fear of punishment.”

Paul Clement, former U.S. Solicitor General, partner at Kirkland & Ellis LLP and First Liberty volunteer attorney, said, “We look forward to presenting the Coach’s case, which goes to the heart of the First Amendment, to the Justices.”

Coach Kennedy added, “Six years away from the football field has been far too long.  I am extremely grateful that the Supreme Court is going to hear my case and pray that I will soon be able to be back on the field coaching the game and players I love.”

The Supreme Court declined to review the case in January 2019, but allowed the lower courts to continue to develop the factual record.  At that time, four justices (Justice Alito joined by Justices Thomas, Gorsuch, and Kavanaugh) attached a statement signaling that the Court would be open to hearing the case at a future time, saying in part, “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”  The case returned to the lower courts, where a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit sided with the school district.

Mike Pence, former Vice President of the United States, and Tommy Bowden—son of legendary football coach Bobby Bowden—NFL Hall of Famer, Steve Largent, and three-time Super Bowl winner, Chad Hennings, among many others filed “friend-of-the-court” briefs urging the Supreme Court to take the case.

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About First Liberty Institute

First Liberty Institute is a non-profit public interest law firm and the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.

To arrange an interview, contact Lacey McNiel at media@firstliberty.org or by calling 972-941-4453.


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