Coach Kennedy’s Case Presents a Rare Opportunity to Reclaim the Free Exercise Clause

January 22, 2021
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by Mike Berry • 5 min read

As another football season reaches its climax, millions of Americans will anxiously cheer on their favorite team. Even the most casual football observers are likely familiar with the concept of “moving the chains.”

That is, a good team understands that the game lasts four quarters, and cannot be won in a single play, no matter how spectacular. So, they must continue to move the chains, which signifies the steady progress that can eventually lead to victory.

For more than five years, Coach Kennedy and First Liberty’s legal team have been steadily moving the chains. And although victory is not guaranteed, it is within sight.

All great coaches understand that dynasties are not built on one win or even one season. Dynasties are built upon sustained excellence and success. The battle for religious liberty is no different.

For example, First Liberty’s historic victory at the U.S. Supreme Court to preserve the Bladensburg WWI Veterans Memorial required sustained excellence and perseverance to overcome unfavorable rulings and a dogged opponent. But the result was a paradigm shift in the way courts will treat Establishment Clause cases.

And what the Bladensburg case was for the Establishment Clause, the Coach Kennedy case might be for the Free Exercise Clause.

RELATED ARTICLE: Recent Attack on College Football Prayer Shows Why a Victory for Coach Kennedy is Essential.

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In just a few days, on January 25th, the U.S. Court of Appeals for the Ninth Circuit will once again hear oral argument in Coach Kennedy’s case; a case that could have significant religious liberty ramifications. The central issue in the case is whether public school employees such as Coach Kennedy have the First Amendment right to pray silently and alone at midfield immediately after football games.

If this sounds familiar, it is because this will be the second time the Ninth Circuit hears the case, which has been ongoing since 2016. In August of 2017, a three-judge panel of the Ninth Circuit issued a stunning decision that eviscerated the First Amendment rights of public employees. In essence, the court ruled that public employees are not protected by the First Amendment when they engage in religious conduct that is visible to others.

After the Ninth Circuit’s unfavorable ruling, Coach Kennedy took his case to the U.S. Supreme Court. Although the Supreme Court decided against reviewing Kennedy’s case at the time, Justices Alito, Thomas, Gorsuch, and Kavanagh (Justice Barrett was not yet on the court) issued a statement expressing serious reservations about the Ninth Circuit’s decision. But what the justices did next has become a source of great hope for people of faith across America.

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.

Equipped with this new game plan, Coach Kennedy returned to the district court which ruled against him. This was disappointing, yet unsurprising. Nevertheless, the chains are moving.

As Coach Kennedy returns to the Ninth Circuit, we have a unique opportunity to argue that the Smith decision was wrongly decided and should not result in millions of Americans losing their religious freedom.

Although it is unlikely that the Ninth Circuit will rule in our favor, the issue will have been set up for the Supreme Court, which now adds the presence of Justice Barrett to the other Justices who have already spoken out about this crucial issue of religious freedom in this case.

The Coach Kennedy case presents a rare opportunity to overturn a bad precedent that has been used by judges for decades to erode the Constitution and reduce religious liberty. If successful, the result could mean that millions of Americans no longer have to choose between their jobs and their faith.

Just as in football, legal victories of great significance are rarely won in a single instance. It takes patience, hard work, and a great game plan. First Liberty is proud to stand with Coach Kennedy, from opening kickoff to the final whistle, whenever that may be.

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