Liberty Counsel filed an amicus brief today at the U.S. Supreme Court in Kennedy v. Bremerton School District, a case in which a high school football coach was fired for silently praying on the field after games. Oral arguments are expected to be held in April 2022.
Similar to Liberty Counsel's case recently argued before the Supreme Court in Shurtleff v. City of Boston, the Bremerton School District argued that the private speech of Coach Joe Kennedy was "government speech" and the district therefore censored it because of the Establishment Clause. During oral argument in the Shurtleff case, the justices did not appear to agree with the city of Boston's "government speech" argument; nor should the Court agree with the similar argument raised by the school district.
In 2008, Bremerton High School football coach Joe Kennedy, an 18-year Marine veteran, made a promise to God that he would pray and give thanks after each game he coached, regardless of the outcome. Kennedy would simply drop to one knee and pray for 15-30 seconds on the 50-yard line at the end of games to "offer a silent or quiet prayer of thanksgiving for player safety, sportsmanship and spirited competition." Initially, Kennedy prayed quietly and alone. After several games, some students took notice and joined him. If students gathered, Kennedy began offering short motivational speeches to players, ending with a brief prayer. Sometimes no players gathered, and he prayed alone. He did this for seven years without any complaints by school officials. Then in 2015, the school district ordered Kennedy to stop, stating his practice violated the Establishment Clause of the U.S. Constitution. When he refused, the district terminated him.
A federal district court in Washington, and then the 9th Circuit Court of Appeals, sided with the school district. In 2019, the U.S. Supreme Court declined to review the case but four justices—Alito, Thomas, Gorsuch and Kavanaugh—signaled that the court would be open to hearing the case at a future time. They wrote, "The Ninth Circuit's understanding of the free speech rights of public school teachers is troubling and may justify review in the future."
Kennedy returned to the Supreme Court in September 2021, telling the justices that the 9th Circuit's ruling used "imagined Establishment Clause concerns to inflict real Free Exercise Clause damage." The high court finally took the case on Jan. 14, 2022.
Bremerton School District's defense states it wants to avoid the perception that it approves of Kennedy's religious speech. However, Liberty Counsel's brief illustrates it is illogical to believe the school district was endorsing religion by permitting him to silently pray on the field after the game. He did not lead a group in prayer during the game, he did not say a prayer over the intercom, and he did not compel team members to join him in prayer. Rather, as a private individual who happened to be the coach, he went to the 50-yard line to quietly say a prayer. Since school officials would have permitted him to engage in other speech on the field, censoring his religious expressive speech is viewpoint discrimination and demonstrates hostility toward religion.
Liberty Counsel's founder and Chairman Mat Staver said, "Banning a coach from silently praying after a game is illogical and unconstitutional. The school district would not have fired him for making a personal phone call on the football field. The same coach could have knelt on the field for a myriad of secular reasons without incident. The fact that the school fired the coach because he silently prayed is blatant discrimination based on religious viewpoint. This case is an opportunity for the high court to affirm that every American has the right to engage in individual religious expression without fear of punishment."
This article first appeared on lc.org.
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