A full federal appeals court on Monday declined to reconsider a panel decision in favor of a Washington state school district in the long-running case of a high school football coach who was suspended for praying on the field. The court traded barbs in 94 pages worth of opinions that included one judge throwing lines of scripture towards the coach.
The case of coach Joseph A. Kennedy, who contends that he has First Amendment free-speech and free-exercise-of-religion rights to express his Christian faith while on the job, is now likely headed back to the U.S. Supreme Court, where in 2019 four conservative justices expressed sympathy for Kennedy鈥檚 case.
The latest development in is a vote by the full U.S. Court of Appeals for the 9th Circuit, in San Francisco, against rehearing Kennedy鈥檚 case. It appears that eight judges on the 29-member court voted to rehear the case, with several others expressing disagreement with a March decision by a three-judge panel against the coach.
鈥淭he Establishment Clause was designed to keep government out of personal religious exercise, not purge religion from the public square,鈥� said a dissent by Judge Ryan D. Nelson. 鈥淭here may be situations in which a school鈥檚 sponsorship or mandatory attendance policies lead to actual coercion. But merely allowing religion to be independently expressed in a school setting was never and is not an establishment of religion.鈥�
Senior Judge Diarmuid F. O鈥橲cannlain, who as semi-retired judge on the 9th Circuit could not vote on the rehearing, nevertheless issued an opinion that said the March panel ruling 鈥渙bliterates [First Amendment] constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government.鈥�
A praying coach causes controversy
Kennedy was the assistant varsity football coach and the head coach of the junior varsity team at Bremerton High School in Washington in the fall of 2015 when his post-game prayers caused controversy. Bremerton district officials advised Kennedy that he could continue to give inspirational talks, but could not lead or encourage student prayers.
The coach complied for several weeks, but sought an accommodation from the district to continue his post-game prayers. The school district rejected his argument that his job responsibilities ended when the football game did.
When the coach continued to pray at the end of two more games, the district placed him on administrative leave and he did not seek to renew his contract. The coach sued the school district, seeking reinstatement as a coach and a ruling that he had the right to pray on the field after games.
The coach lost in two lower courts before taking his case to the Supreme Court in 2019. The high court declined review, but four justices that said they were troubled by the 9th Circuit panel鈥檚 original decision in the case.
The 9th Circuit鈥檚 鈥渦nderstanding of the free-speech rights of public school teachers is troubling and may justify review in the future,鈥� Justice Samuel A. Alito Jr. wrote in a statement that was joined by Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh.
In March of this year, for the Bremerton school district, holding that the district would have violated the First Amendment鈥檚 bar on government establishment of religion if it had allowed 鈥淜ennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.鈥�
鈥淜ennedy鈥檚 attempts to draw nationwide attention to his challenge to [Bremerton School District] compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties,鈥� the appeals panel added.
Case is likely headed back to the Supreme Court
That ruling led Kennedy to seek review by a larger panel of the full 9th Circuit, which led to Monday鈥檚 opinions.
Judge Milan D. Smith Jr., who wrote the March panel opinion, issued his own statement Monday concurring in the denial of reconsideration. He criticized O鈥橲cannlain for 鈥渟uccumbing鈥� to a 鈥渄eceitful narrative鈥� of the case by Kennedy鈥檚 lawyers that the coach was being punished for silent, private prayers.
Kennedy 鈥渁dvertised in the area鈥檚 largest newspaper, and local and national TV stations, that he intended to defy [Bremerton School District鈥檚] instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result,鈥� Smith said.
Smith even criticized the coach for his public prayers by quoting the Bible.
鈥淚 personally find it more than a little ironic that Kennedy鈥檚 鈥榚verybody watch me pray鈥� staged public prayers (that spawned this multiyear litigation) so clearly flout the instructions found in the Sermon on the Mount on the appropriate way to pray,鈥� wrote Smith, who in a footnote quoted from the Gospel according to Matthew.
O鈥橲cannlain said that the panel, in its March ruling, failed to heed the 鈥済uidance鈥� from the four Supreme Court justices in their 2019 statement and 鈥渄oubled down鈥� on its 鈥渢roubling鈥� view of the legal issues at stake.
鈥淭he panel now declares not only that the school district was permitted to suspend Kennedy, but also that it was constitutionally required to do so,鈥� O鈥橲cannlain said. 鈥淭hat is strange indeed, given that this is not an action brought by a student or parent who alleges the government coerced his or her participation in a state-sponsored prayer service. No matter, the opinion here weaponizes the Establishment Clause to defeat the Free Exercise claim of one man who prayed as a private citizen.鈥�
The case is now likely headed back to a Supreme Court that has been very receptive to free-exercise-of-religion claims and that is familiar with Kennedy鈥檚 arguments.
