The high school football coach in Washington state who was fired for praying silently on the field after games says he’s looking forward to a second shot at reinstatement after his lawsuit was returned to the district court in which it originated.
The U.S. Supreme Court declined in January to review the case of coach Joe Kennedy, who was fired by Bremerton High School in 2016. However, in a rare statement, four justices restored his hope, concluding that if issues of fact are resolved by a lower court, the high court might take his case against the Bremerton School District.
Kennedy told “Fox & Friends” on Friday the Supreme Court “gave me another set of downs and a path forward in getting my rights back.”
He said the case is “for the Constitution and the rights of all Americans.”
“They’ve taken my rights away so somebody’s got to stand up and fight,” Kennedy said.
The coach’s lawyer, Mike Berry of First Liberty Institute, told “Fox & Friends” he looks forward “to taking coach Kennedy’s case back up to the Supreme Court, if necessary, and restore this man’s rights.”
“He fought for our country in the Marine Corps. They didn’t teach him how to quit in the Marines and we’re not going to quit,” he said.
First Liberty has argued Kennedy’s prayers on the field were done privately, and while he allowed others to join him, he did not lead the team in prayer.
Kennedy appealed to the U.S. Court of Appeals for the 9th Circuit after a district court rejected his request to get his job back. The 9th Circuit ruled that his brief silent prayers on the field after each football game were not protected by the First Amendment. The court further determined the Constitution barred any public employee from engaging in religious activity that is visible to the public.
The case is now back in U.S. District Court of Western Washington.
‘Troubling’ understanding of free-speech rights
The Supreme Court’s statement in January was written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.
Alito said the 9th Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
He the case had too many “unresolved factual questions” to make a constitutional determination. For example, the Bremerton School District provided several different reasons for punishing Kennedy.
The denial of review, he said, did not “signify that the court necessarily agrees with the decision (much less the opinion)” of the 9th Circuit.
“In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”
The statement noted Kennedy claims he engaged in conduct that was protected by the Free Speech Clause of the First Amendment.
“The key question, therefore, is whether petitioner showed that he was likely to prevail on his claim that the termination of his employment violated his free speech rights, and in order to answer that question it is necessary to ascertain what he was likely to be able to prove regarding the basis for the school’s action.”
But that’s “far from clear,” Alito said.
“What is perhaps most troubling about the 9th Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith – even when the coach is plainly not on duty. I hope that this is not the message that the 9th Circuit meant to convey, but its opinion can certainly be read that way.”
The justices noted that Kennedy still has “live claims” under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.
Kelly Shackelford, president of First Liberty, which is representing the coach, said the Supreme Court “seems to understand that banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution.”
Kennedy has had public support from prominent figures such as President Trump, Franklin Graham and Hall of Fame football coach Bobby Bowden.
