Supreme Court rules former Washington high school football coach’s public postgame prayers protected under First Amendment

Picture: Marco Verch

The Supreme Court ruled that a former high school football coach’s on-field prayer was protected speech, reversing the decisions of lower federal courts. Negotiations related to his re-hire have stalled.

Key Players

Joseph Kennedy worked at Bremerton High School from 2008 to 2015. The public high school, which serves some 1,150 students, is located just across Puget Sound from Seattle. Kennedy was known to have led the team and staff regularly in Christian prayer throughout his tenure. According to the First Liberty Institute, Kennedy is a former Marine who made a “commitment to God that he would give thanks after every game—win or lose—for the opportunity to be a football coach and for his players.”

The Bremerton School District (BSD) formally requested in 2015 that Kennedy stop praying on the field and in the locker room, citing the region’s religious diversity. After he refused, the district recommended Kennedy’s suspension. In 2016, it chose not to renew his contract, resulting in his dismissal. 

The First Liberty Institute, an advocacy group for religious freedom based in Plano, Texas, represented and advocated for Kennedy throughout 2016 and through his Supreme Court appeal.

Further Details

The district was first tipped off about Kennedy’s behavior when a school administrator lauded the example he set through prayer, according to First Liberty Institute. An official letter was immediately sent to Kennedy demanding his cessation of religious conduct, to which he initially acceded. But, according to the Kitsap Sun, on Oct. 16, 2015, he reportedly prayed in front of the team, within sight of other spectators. This led to his suspension and the subsequent termination of his contract in 2016. 

On Aug. 9, 2016, Kennedy filed a complaint of religious discrimination with the federal Equal Employment Opportunity Commission, which then granted him a right-to-sue letter. This enabled the First Liberty Institute to file a lawsuit in federal district court on his behalf against the school district. Kennedy asserted that BSD retaliated against him for exercising his First Amendment right to Free Speech. 

On Sept. 9, 2016, U.S. District Judge Ronald Leighton, nominated by former President George W. Bush, dismissed the case. Because Kennedy served as a public employee, Leighton held that BSD did not violate his First Amendments rights. Additionally, BSD’s conduct was justified to avoid violating the Establishment Clause. 

After the district court dismissed the lawsuit, First Liberty filed an appeal with the U.S. Court of Appeals for the 9th Circuit.

In the appellate court, Kennedy’s counsel argued that his praying constituted “private religious expression.” But Rebekah Ricketts, a district attorney, argued that because Kennedy was a public employee, his actions violated the Constitution’s “establishment clause,” which prohibits the government and its actors from enforcing a government-sanctioned religion. She also said that while governmental representatives are permitted to practice their own religion privately — so long as doing so results in no harm to others — the potential “coercive influence” teachers and coaches could have on students renders Kennedy’s behavior inappropriate.

On August 23, 2017, the three-judge panel of the appellate court ruled in favor of BSD, questioning why the coach’s public prayer had not been challenged sooner. 

Judge Milan D. Smith, nominated by former President George W. Bush, wrote that Kennedy “took advantage of his position to press his particular views upon the impressionable and captive minds before him,” adding that his “demonstrative speech fell within the scope of his typical job responsibilities, he spoke as a public employee, and the district was permitted to order him not to speak in the manner that he did.” There was no indication of dissent. 

By early 2018, First Liberty institute began to push for a Supreme Court appeal. But in January 2019, the court decided on procedural grounds that the case was not ripe for review, USA Today reported. While Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito, and Neil Gorsuch expressed their view that public employees were entitled to practice their religious beliefs freely, they agreed that the case should be sent back to district court for further adjudication, adding that, “The Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

On March 5, 2020, after both parties moved for summary judgment on Kennedy’s claims, Leighton ruled in favor of the Bremerton School District.

According to The Seattle Times, Leighton wrote that public school employees had the right to religious expression, but held the district had the right to restrict that expression if it violated the Establishment Clause of the First Amendment. “Although the court is sympathetic to Kennedy’s desire to follow his beliefs, the former right must give way to the latter in this case,” Leighton wrote.

One year later, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously affirmed the district court’s decision, Reuters reported. Rejecting Kennedy’s claim that he engaged in “private prayer,” the appellate court cited his efforts to draw national support for his case and wrote that district personnel had received “hateful” and “threatening” calls, letters, and emails from around the nation. 

“Although there are numerous close cases chronicled in the Supreme Court’s and our current Establishment Clause case law, this case is not one of them,” Smith wrote for the three-judge panel.

On Jan. 14, 2022, Reuters reported that the Supreme Court agreed to hear an appeal from Kennedy. First Liberty president and CEO Kelly Shackleford said, “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.” 


Supreme Court rules 6-3 that Kennedy has a right to prayer under First Amendment

On June 27, 2022, the Supreme Court ruled that as his actions were a free exercise of religion, Kennedy could not be punished for on-field prayer. 

In the majority opinion, Gorsuch wrote that “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” according to The Times. Gorsuch noted that because these prayers were not mandatory for the team, and because their message was not publicly broadcast, they did not run afoul of the Establishment Clause, which prohibits public entities from endorsing one religious tradition over another. 

In a dissent, Justice Sonia Sotomayor wrote that while not explicitly mandatory in this particular case, “Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents.”

ACLU attorney Taryn Darling expressed skepticism at Gorsuch’s assertion that the prayers could not be construed as part of official team activities, pointing out that students reported feeling as if they had to participate. Sotomayor attached a photo to her dissent that depicted Kennedy holding a helmet, surrounded by kneeling players.

After the decision, ESPN quoted Kennedy as saying “This is just so awesome. All I’ve ever wanted was to be back on the field with my guys.” First Liberty attorneys alluded to a goal of seeing Kennedy back on the coaching staff when the season begins in September 2022.

Kennedy and school begin negotiating his return to coaching

In September 2022, Kennedy’s lawyer stated that he was still seeking to return to Bremerton to coach. However, negotiations between Kennedy and the school have failed to progress, the Kitsap Sun reported. 

In July 2022, First Liberty lawyers requested an in-person meeting with the school district to discuss a proposal for the district to immediately reinstate Kennedy, promise not to interfere with his post-game prayer, and pay $5.5 million in legal fees.

In August 2022, the district stated that it did not think an in-person meeting was necessary, wanted Kennedy to complete a number of coaching certifications, and to provide documentation supporting the $5.5 million claim.

On Aug. 26, U.S. District Court Judge Robert Lasnik, nominated by former President Bill Clinton, ordered both sides to settle the issues within 60 days, as well as at least one face-to-face meeting to try and settle the case.  

According to Fox13, since football season had already started, Kennedy aims to return to the team in Spring 2023. 

Kennedy takes to Fox News after district implements new prayer policy

On Sept. 1, the district publicly discussed its new policy for employees engaging in prayer, referred to as “brief personal conduct.” 

The policy allows employees to engage in personal conduct, but does not allow them to invite other students to join, the Kitsap Sun reported. It also restricts when this brief personal conduct can occur, specifying that it must be after an employee finishes performing their role, and must not occur within 25 feet of any student participants.

A Sept. 23 Fox News opinion piece, written by Kennedy, argued that the restriction would give a “heckler’s veto” to any student who did not want Kennedy to pray since they could simply stand within 25 feet of him and put him in violation of the policy. He also warned that the policy seemed to be at odds with the Supreme Court’s decision, and that the district is “asking for another lawsuit.”

As of Oct. 22, 2022, there were no further developments.