A high school football coach, Joe Kennedy, who was banned from taking a knee to lead prayer after football games is taking his challenge back to the Supreme Court, the latest such dispute to reach a conservative court that has moved to expand greater protections for religious believers.
The school district said it did not discipline him for silent, private prayers — a practice that began in 2008 when he was hired — and only threatened to discipline him after he prayed on the 50-yard line when players were on the field and the crowd was still in the stands. A photo of Kennedy praying with about 20 players in uniform kneeling with him is a part of the record.
Kennedy lost his case at the district court level and before the 9th US Circuit Court of Appeals. A larger panel of judges on the appeals court declined Monday to rehear the case, and Kennedy’s lawyers immediately said they will head to the Supreme Court.
“Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties,” Judge Milan wrote. “The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.”
Liberty Institute, a Texas-based law firm represents Kennedy.
Senior Judge O’Scannlain, joined in full by 5 other judges and in part by two more, said in part:
It is axiomatic that teachers do not “shed” their First Amendment protections “at the schoolhouse gate.”… Yet the opinion in this case obliterates such 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. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.
Judge Smith’s opinion concurring in the denial of review says in part:
Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false…. [T]he reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers.
I seriously have lost track of all the court cases involving ex-coach Joe. I’m guessing a bit, but I would say he’s had 3 or so at a U.S. District Court, somewhere around 4 times at the 9th and once to the SCOTUS in 2019 who declined to review the case. Four conservative justices at the time said they were interested in the case and the legal issues it raises. He’s lost every court appearance.