For avid football fans, the six-month span between February and July is a dead zone of sorts. Fans must endure six whole months without football. Some find themselves desperate enough to watch rugby, or even that other football, soccer. But the return of football season is no longer a cause for celebration for everyone.
Just across the Puget Sound from Seattle, in the heart of Seahawks country, former Bremerton High School football coach Joe Kennedy is entering his fourth year without football. In 2015, Kennedy was suspended and eventually fired as a coach because he took 15-30 seconds after each game to kneel, silently and alone, and pray.
Sadly, Kennedy’s “crime” of praying while being a coach has cost him — and his players — dearly.
For the past three years, Kennedy has endured season after season of watching from the stands. The freshman class of 2016 is now entering their senior year; it marks the last time most of them will ever play competitive football again. Those young men have gone their entire careers without the benefit of Kennedy roaming the sidelines as their predecessors enjoyed.
By his own admission, Kennedy was not a “X’s and O’s” coach. As a retired Marine Corps gunnery sergeant who did a combat tour during Operation Desert Storm, Kennedy coached the intangible values of leadership, character, and fidelity. He quickly became a favorite coach among his players, many of whom came from less-than-ideal backgrounds.
Three years ago this month, Kennedy filed a lawsuit against Bremerton School District, seeking only to be reinstated as a coach; he did not seek to recoup the financial damage he’s also suffered. Although Kennedy has what could be described as an all-pro caliber legal team, his case has been mired in litigation for years now. One setback after another has befallen his case.
After a district court denied Kennedy’s request to be reinstated, he appealed to the U.S. Court of Appeals for the 9th Circuit. The 9th Circuit ruled against Kennedy, which, given the notoriety of the 9th Circuit, is not necessarily noteworthy. But what was remarkable was the stunning breadth of the 9th Circuit’s opinion.
The 9th Circuit ruled that Kennedy’s act of praying silently and alone for 15-30 seconds after each football game is not protected by the First Amendment to the Constitution. But the court went even further, ruling that any time a public employee (such as a football coach, a teacher, or a janitor) engages in religious activity that is visible to the public, it’s not constitutionally protected.
Let that sink in. The 9th Circuit says that a public school can ban a Jewish coach for wearing his yarmulke or a Muslim teacher for wearing her hijab, and those employees have no First Amendment protection.
Never one to back down from a challenge, the former U.S. Marine took his case to the Supreme Court. The Supreme Court did not elect to review Kennedy’s case at the time, but it offered hope for the future. In a rare action, four of the court’s justices issued a statement expressing grave concerns with the 9th Circuit’s decision and rationale. The court also raised the possibility that, should some specific questions of fact be answered, the justices might review Kennedy’s case in the future. Kennedy’s case is now back at the district court level for a second time to answer those questions.
As thousands of coaches wrap up off-season two-a-days and prepare for the return of football season, the 9th Circuit’s decision still looms like a storm cloud over a packed stadium. Kennedy is undoubtedly not the only coach in America who gives thanks through prayer after football games. As Kennedy and his legal team prepare for the next round of legal battle, he knows it’s no longer just about him.
Religious freedom for tens of thousands of Americans hangs in the balance. If the 9th Circuit’s decision is left to stand, public employees could lose some of their most cherished freedoms. The tragic irony is that Kennedy spent 20 years in the Marine Corps making daily sacrifices so that we might enjoy freedom. And now he risks losing the very freedoms for which he sacrificed.
Let us hope, for the sake of religious freedom, that upon further review, the bad calls Kennedy has endured for the past three seasons are reversed.
Mike Berry is the chief of staff for First Liberty Institute, a legal organization dedicated to defending religious freedom for all Americans.
