A panel of judges from the 9th Circuit Court of Appeals had questions for both sides Monday as it weighed the case of Joseph Kennedy, the former Bremerton High School football coach who was placed on leave after leading his team in prayer after games.
A former Bremerton High School football coach who lost his job for refusing to stop praying on the field after games has asked a panel of appellate judges to overturn a lower-court decision upholding the district’s decision to place him on leave.
The three-member panel of judges had plenty of questions for both sides during an hourlong hearing Monday in Seattle.
On one hand, they wondered how former assistant coach Joseph Kennedy’s vow to continue praying — if he was reinstated — could be seen as anything other than the Bremerton’s School District’s endorsement of his religious beliefs, which would violate the First Amendment.
On the other, they asked how Kennedy was supposed to know he was doing anything wrong when evidence showed the district had allowed the practice to go on unquestioned for more than seven years before halting it and placing Kennedy on administrative leave last year.
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“I’m frankly stunned,” said Judge Milan Smith, who was incredulous that nobody had every complained about Smith’s practice of gathering both teams at midfield after games and giving an inspirational speech that Kennedy has admitted “segued into prayer.”
“Doesn’t the superintendent go to football games?” Smith asked school-district lawyer Michael Tierney, pointing out that there was evidence that an official from another district had attended a game and had come away concerned.
“The district was not searching for a problem,” Tierney explained. He said that in all of those years, nobody complained to the district. Given the amount of controversy the decision has generated, he said, the district should have known.
Kennedy was placed on leave by the district this past fall and then did not reapply for his position.
Kennedy has sued the school district, claiming the district discriminated against him on the basis of his religion and violated both his First Amendment rights to freedom of speech and religion and the Civil Rights Act of 1964. He has also drawn support from President Donald Trump, Ben Carson, secretary of Housing and Urban Development, and Texas Sen. Ted Cruz.
Tierney on Monday defended the district’s decision to suspend Kennedy after he defied orders not to hold a team gathering and prayer at midfield in October 2015. Hundreds of parents and others joined him, and the district reacted by banning everyone from the field after games.
That decision was helped along after a group of Satanists gathered on the field after a game in response to Kennedy’s Christian prayers.
The district argued that Kennedy, as a coach, was a “teacher plus,” educating his athletes about the game and sportsmanship, but also necessarily being an inspiration and a role model. For years, Kennedy prayed in the school locker room with students before a game and would gather with both teams afterward at midfield.
In that role, students were particularly susceptible to his influence and his beliefs, and the school was right to order him to stop the practice, Tierney argued. The district tried to accommodate the coach, he said, by offering up a private room or allowing him back onto the field alone after the game for a moment of private prayer.
Kennedy ultimately rejected those efforts, saying they weren’t consistent with his beliefs.
He was represented Monday by attorneys associated with the conservative Liberty Institute of Plano, Texas.
His attorney, Rebekah Ricketts, of Dallas, argued that Kennedy complied with the school’s directives, and that he and his lawyers had concluded that a “15- to 30-second” silent prayer on the sidelines after a game does “not even come close” to a violation of the Constitution’s Establishment Clause, which prevents government from endorsing any religion.
“No reasonable person would construe that act as a religious endorsement,” she argued.
“No students were coerced,” she said.
On the steps in front of the William Kenzo Nakamura Courthouse in downtown Seattle after the hearing, Kennedy said the experience as been “quite incredible.”
“It’s been tough,” he said, but he said he’s “very encouraged” by the process.
“Because really it’s letting everybody know what our constitutional rights are,” he said. “Everybody hears and assumes what they are, but to find out what the Constitution really means, it’s great to be involved in it.”
The judges took the matter under advisement.