by Jorge Gomez • 5 min read
On Monday, the U.S. Court of Appeals for the Ninth Circuit declined to rehear en banc (before the Court’s full panel of judges) a three-judge panel’s decision that determined the Bremerton School District in Washington state can ban Coach Joe Kennedy from taking a knee in brief, personal prayer after football games.
Following on the heels of this expected announcement, First Liberty’s legal team and volunteer attorneys Jeff Helsdon and A.J. Ferate at Kirkland & Ellis, LLP have determined to appeal the Ninth Circuit’s decision and take Coach Kennedy’s case to the U.S. Supreme Court.
And let’s not forget, there is good reason for us to be hopeful about Coach Kennedy’s case.
In 2019, the Supreme Court declined to review the case at that time, but four justices (Justice Alito joined by Justices Thomas, Gorsuch, and Kavanaugh) attached a rare and important statement signaling that the Court would be open to hearing the case at a future time:
“The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
But that’s not the only portion of the justices’ statement that’s encouraging.
They also noted something very important about the legal arguments in Coach Kennedy’s case, which could have a rippling effect for people of faith across America who are fighting for their religious freedom in our nation’s courts.
Coach Kennedy’s primary legal argument was that the school district violated his free speech rights when it fired him for praying. That might seem odd because, while prayer is certainly speech, it is also religious exercise. But a decades-old case, Employment Division v. Smith, seemed to foreclose the ability to argue that the school district also violated Kennedy’s free exercise rights.
The justices noted this and not-so-subtly suggested that the Smith case should be revisited.
In preparing our appeal to the Supreme Court, we will have a unique opportunity to argue that the Smith decision was wrongly decided.
Additionally, let’s take into consideration the positive rulings the Supreme Court handed down in its most recent term on cases pertaining to religious freedom.
In Fulton v. Philadelphia—arguably the most consequential religious freedom case of the term—the Supreme Court ruled 9-0 that Philadelphia cannot discriminate against faith-based social services providers because doing so violates the Constitution.
Despite Fulton being a narrow decision, one thing did become immediately evident: religious liberty enjoys unanimous support at the Supreme Court. When it comes to the premise that government may not discriminate against an organization because of its religious beliefs, the nine Supreme Court justices are all in.
Now, after more than five years of fighting for Coach Kennedy, First Liberty is in a prime position to put our winning game plan into motion. And while a final victory is not guaranteed, the goal line is within sight.
What’s more, there’s the possibility that Coach Kennedy’s case could be a historic case for religious liberty, as it presents a rare opportunity for the Court to rectify and overturn a precedent that has made “free exercise” cases nearly impossible to win.
If successful, a win for Coach Kennedy could reclaim the Free Exercise Clause of the First Amendment and help ensure millions of Americans no longer have to choose between their jobs and their religious beliefs.
With so much at stake in Coach Kennedy’s case, our legal team will need to replenish its legal arsenal in preparation of what could be a landmark Supreme Court showdown.
Will you consider giving today so First Liberty can secure a win for Coach Kennedy and fully reclaim your rights and freedoms under the Free Exercise Clause?