Joe Kennedy, an assistant football coach at Bremerton High School in Washington State, insisted that he had a right to pray with players and students at the 50-yard line after games.

Officials at Kennedy’s school felt differently – and so did Americans United. On Aug. 23, a federal appeals court sided with the school, issuing a 3-0 ruling making it clear that public-school teachers and staff have no right to engage in religious activity with students.

Kennedy, who was portrayed as a martyr in Religious Right circles, was placed on administrative leave in 2015 after he refused to stop praying at the end of games. Warned by school officials to stop, he initially decided not to reapply to be a coach.

But Kennedy, backed by a Texas-based Religious Right legal group called First Liberty, soon changed his mind. He filed a lawsuit and sought a preliminary injunction ordering the school district to hire him as a coach and to allow him to pray with players.

A federal court in September 2016 denied the injunction, and the 9th U.S. Circuit Court of Appeals ruling upholds that decision.

Americans United, which argued in support of the school district before the appeals court, hailed the decision in Kennedy v. Bremerton School District.

“Teachers and coaches don’t get to pressure students to pray,” said Rich­ard B. Katskee, Americans Uni­ted’s legal director. “Students and families have the right to decide whether and how to practice their faith. Public schools should be welcoming places for all students and families, and no student should feel like an outsider at his or her school.”

            Added Katskee, “The court agreed that the Bremerton School District could protect the religious freedom of its students. The school district was on the right side of history and religious freedom, and Americans United was proud to support its efforts.”

            Andrew Nellis, a Madison Fellow in AU’s Legal Department, agreed. Nellis, who presented arguments in the case before the 9th Circuit, told Church & State that he believes the law in this area is clear.

“We knew from the start that the law was on the school district’s side,” Nellis said. “Although one can never be sure how a case is going to turn out, we were confident that the judges would recognize that the school district had to be able to prevent their staff from leading students in prayer.”

The court’s opinion was authored by Judge Milan D. Smith Jr., who pointed out that high-school football is an important ritual in many American communities.

“On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families of all walks of life join to root for a common cause and admire young people who step proudly onto the field,” Smith wrote.

“While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as part of [these] occasions,’” Smith added, “such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.”

            Concluded Smith, “[W]hen Ken­nedy knelt and prayed on the fifty-yard line immediately after games while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected.”

            Smith also chose to write a separate opinion to review church–state history. He focused specifically on what lawyers, judges and scholars often call the Establishment Clause – the part of the First Amendment that bars government from making laws “respecting an establishment of religion.”

Observed Smith, “[H]aving learned from the harmful effects of past religious conflicts, our nation’s Founders included in our foundational law safeguards against religious oppression by a government (or arms of that government) under the control of a religious majority that would punish or severely limit our right to worship (or not worship) as we please. This is a priceless bulwark of our personal freedom, and I hope that interested readers will come to appreciate the Establishment Clause as a good friend and protector, and not as an enemy, of one of their most precious rights and liberties.”

            Nellis praised Smith for his “stirring language,” that, Nellis said, “really gets to the heart of what was at stake in this case and why it’s so important.”

            Not surprisingly, Smith’s careful examination of the case failed to please everyone.

“By refusing to allow any public displays, the Ninth Circuit Court of Appeals is effectively saying it is unconstitutional for a coach to make the sign of the cross or bow his head in prayer when a player is hurt,” Jeremy Dys, deputy general counsel for First Liberty, told the Kitsap Sun, a Bremerton newspaper. “That is not the America contemplated by our Constitution.” (In fact, those private religious actions are still permitted. Kennedy ran into trouble because he wanted to pray in a public manner that appeared to represent the school district and that pressured students to join in.)

Evangelist and Religious Right figure Franklin Graham was infuriated by the decision and called on public-school coaches nationwide to defy it. He asserted that the ruling by Smith, a 2006 appointee of President George W. Bush, was an example of “progressive activist judges [going] too far.”

“At next Friday night’s game, on September 1, I think it would be great if football coaches across the country went out on the field wherever they are and prayed,” Graham wrote on his Facebook page. “And those there to watch the game stand in prayer with them. Let’s show our support for Coach Kennedy, a former Marine who didn’t back down on prayer. Will you spread the word to a coach you know?”

AU responded by advising its members to let the organization know if local coaches engage in unconstitutional forms of religious activity with students.

The case, meanwhile, is not completely over. Kennedy’s attorneys may ask for a larger, eleven-judge 9th Circuit panel to hear the case, a procedure known as an en banc rehearing. Or they could appeal to the U.S. Supreme Court.

For AU Legal Director Katskee, Ken­nedy’s case brought back a certain amount of déjà vu. More than 10 years ago, Katskee argued a nearly identical case in New Jersey. That legal dispute centered on Marcus Borden, a football coach at East Bruns­wick High School.

Borden frequently led his team in prayers before games and was told to stop by school officials. Rather than comply, he came up with a plan whereby team captains would set up a voting system for the team prayer. Borden then joined those ostensibly “student-led” prayers.

Borden also filed a lawsuit and won the first round in federal court. But the school district appealed to the 3rd U.S. Circuit Court of Appeals, and Americans United offered to assist with the legal dispute. Katskee argued the case before the appellate court in October  2007 and was aggressively questioned by the judges. In April 2008, however, the appeals court overturned the lower court and ruled unanimously in favor of the school district. Borden appealed to the Supreme Court, which declined to hear the matter. (For more on issues related to public schools, religion and sports, see “Offside And Out Of Bounds,” November 2016 Church & State.)

Americans United Executive Director Barry W. Lynn said he’s proud of the work AU’s legal team did in the Bremerton case.

“The Supreme Court ruled more than 50 years ago that public schools may not impose prayer and Bible reading onto students,” Lynn said. “Since then, an entire body of church–state law has evolved making it clear that the men and women who work in public schools may not coerce students, directly or indirectly, to take part in religious activities. Religious Right legal groups have tried many times to undermine those rulings. This decision is a good example of how AU has worked to thwart those misguided efforts.”  

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