This Week: First Liberty Petitions U.S. Supreme Court to Hear Coach Kennedy’s Case

September 17, 2021
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by Liberty McArtor • 7 min read

This week, First Liberty filed a petition at the U.S. Supreme Court to hear Coach Kennedy’s case. Our legal team is asking the Justices to reverse the lower court decision that allowed the Bremerton School District (WA) to fire Kennedy over a silent prayer on the 50-yard-line after football games.

Over the next several weeks, the Supreme Court is set to begin hearing and reviewing cases, as it resumes its business for its term starting in October. And for those of you who’ve closely followed Coach Kennedy’s case in recent years, there are many reasons to be hopeful and optimistic that the Court could not only hear this case, but that a favorable ruling for Coach Kennedy—and for millions of Americans—is within sight.

“We’re set up about as well as could be for a victory at the Supreme Court,” said Kelly Shackelford, First Liberty President and CEO, adding, “This could be the case that changes the precedent and really restores the Free Exercise Clause of the First Amendment for every American.”

Several Reasons for Optimism

This is the second time we’ve asked the Supreme Court to hear Kennedy’s case. Though it declined to hear it in 2019, four justices gave us good reason to hope the Court could hear it in the future.

Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a rare statement stating: “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

What was so “troubling” about the Ninth Circuit’s understanding of free speech rights? It essentially argued that all speech by public school teachers is government speech, and therefore any religious expression would violate the First Amendment.

Last year, we asked the Ninth Circuit to rehear Coach Kennedy’s case before the full panel of judges in light of the Supreme Court’s comments. When it refused, we knew it was time to appeal to the Supreme Court again. And even though the Ninth Circuit expectedly denied us, it gave us a stronger position as we head back to the Supreme Court.

Here are three reasons why…

1. The Ninth Circuit once again made the same arguments that four Supreme Court Justices found so “troubling.” In short, the Ninth Circuit is arguing that public school teachers don’t have free speech rights, that the First Amendment’s Establishment Clause requires school districts to limit free speech, and that Kennedy was somehow combative when he chose to kneel alone in quiet prayer after football games. This is clearly ridiculous and unconstitutional—and we think the Supreme Court will agree.

2. Many of the judges—even on the liberal Ninth Circuit—wanted to re-hear Coach Kennedy’s case. They didn’t get the opportunity when the Ninth Circuit denied us a re-hearing before the full panel, but they did write some excellent dissenting opinions. These opinions beautifully lay out the facts of Coach Kennedy’s case and explain that the law is on his side. Taken alone, we believe they provide more than ample justification for the Supreme Court to hear Coach’s case.

3. The Ninth Circuit rebuked Coach Kennedy’s theology from the bench. The judge who wrote the most recent opinion for the Ninth Circuit criticized the way Coach Kennedy prayed, accusing him of “flouting the instructions found in the Sermon on the Mount on the appropriate way to pray.”

Judges are supposed to make determinations about the law—not critique individual Americans’ religious beliefs, or force their own theology upon on them. We believe this is the kind of inappropriate, unconstitutional conduct the Supreme Court will likely want to address.

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How Kennedy’s Case Could Overturn a Bad Precedent

We’re determined to restore Coach Kennedy’s ability to pray at the 50-yard-line, but the implications of this case extend far beyond that.

The Ninth Circuit’s previous ruling held that the Bremerton School District was justified in firing Kennedy because he prayed while students could see him. If this dangerous ruling is not overturned, it could lead to public school teachers, coaches and other employees being forced to completely hide their faith or be fired from their job.

But it’s not just public employees whose livelihood could be at stake. If the Supreme Court decides to hear Coach Kennedy’s case, it will have a prime opportunity to review—and possibly overturn—a harmful legal precedent and restore religious freedom as our Founders truly intended for every American.

In 1990, the Supreme Court handed down a decision in Employment Division v. Smith that dramatically hampered the power of the Free Exercise clause of the First Amendment. After we asked the Supreme Court to hear Kennedy’s case the first time, four of the justices suggested they would be open to reviewing the Smith case, giving us hope that Coach Kennedy’s case could be the vehicle to do so.

“If we win and get rid of Smith, which I think we can…everybody’s going to have more free exercise rights than they’ve had in decades,” Kelly Shackelford recently said on First Liberty Live!.

We’ve been in the fight for Coach Kennedy for six years. Now, we’re at the goal line, and with so many positive indications, we believe scoring a major victory is well within reach.

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