SEATTLE — The 9th Circuit Court of Appeals has rejected a request by former Bremerton High School assistant coach Joseph Kennedy to reconsider its refusal to reinstate him to his job after he was fired for refusing to stop praying on the football field, and his attorneys vow they’ll take the case to the U.S. Supreme Court.
A three-member panel of the court in August sided with the school district in upholding a lower court’s decision that found the district was justified in firing Kennedy after warning him that his public displays of religious devotion were inappropriate and implied the school was endorsing his beliefs, in violation of the separation clause of the U.S. Constitution.
Kennedy and his attorneys, with the conservative Plano, Texas-based First Liberty Institute, sought a rehearing by the full court. However, the judges voted and on Thursday denied the request.
“It is disappointing that the 9th Circuit would refuse to hear Coach Kennedy’s case en banc, especially in light of the extreme, far-reaching opinion issued by the three-judge panel,” said Mike Berry, deputy general counsel for First Liberty. He predicted dire consequences to religious liberties if the decision is allowed to stand.
“Banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Kelly Shackelford, president and CEO of First Liberty, who said the institute will ask the Supreme Court to hear the case.
A message seeking comment from the Bremerton School District was not immediately returned.
In a pair of rulings issued in August, the three-judge panel found that Kennedy was acting as a teacher, with a duty to the district, students and parents to set an example. The appeals court found Kennedy “took advantage of his position to press his particular views upon impressionable and captive minds before him.”
The judges said Kennedy could not prove he was exercising his First Amendment rights as a private citizen when he insisted, against orders from the Bremerton School District, on taking a knee at the 50-yard line after football games and praying.
Kennedy first began the practice in 2008, according to court documents, and nobody complained until an employee from another district mentioned it to someone with the Bremerton district in 2015. By then, Kennedy — a former Marine — often was joined by members of his team, an occasional parent and sometimes players from the other team.
After an investigation, the district told Kennedy he could continue the practice only if he did it after the players had gone home and the field was empty. Kennedy refused and was placed on leave by the school district.
His contract was not renewed after the 2015 season.
