SEATTLE — Joe Kennedy watched impassively as attorneys in his religious liberty case argued Monday in federal court.
Kennedy, a former assistant football coach for Bremerton School District, claims his rights to free speech and religious expression were violated when the district in September 2015 prohibited him from praying after games on the 50-yard line.
Kennedy initially abided by the prayer ban, but later defied it.
The district said Kennedy had violated its policy upholding the separation of church and state. He was placed on paid leave and his contract was not renewed in 2016.
Kennedy sued the district to regain his job and the right to pray on the field after games.
Attorneys on both sides of the case presented oral arguments Monday before a three-judge panel in the Ninth Circuit Court of Appeals.
Bremerton School District Superintendent Aaron Leavell and other school officials attended the hearing.
Kennedy’s wife, Denise Kennedy, who is the school district’s human resources supervisor, sat by her husband’s side.
Rebekah Ricketts of Gibson, Dunn & Crutcher, LLC, a member of Kennedy’s legal team, asked the panel to overturn a U.S. District Court ruling denying a court order to reinstate Kennedy’s job while his case is making its way through the courts.
Ricketts said that Kennedy was only seeking the right to take a knee on the field and say a private prayer after the game had ended.
The judges grilled Ricketts on the line between private and public prayer. On Oct. 16, Kennedy took a knee and prayed audibly, surrounded by scores of players and others.
“That’s not alone,” Judge Morgan Christen said.
Ricketts argued that in a subsequent game, after the district’s directive which followed the Oct. 16 game, Kennedy went out to the field alone, away from players who were on the sidelines. That, she said, amounted to private religious expression.
The district’s attorney, Michael Tierney, argued that Kennedy’s post-game prayer violated the U.S. Constitution’s Establishment Clause, prohibiting the establishment of a government-sanctioned religion. Coaches and teachers exert a subtle and sometimes not-so-subtle pressure on students to conform, he said, so they must refrain from any religious expression that could be construed as coercive.
Christen also asked Tierney about the boundary between private and public prayer.
“I’m asking you to envision a spectrum, and where you think this scenario crossed the line,” she said.
Tierney replied that any situation where students are present crosses the line.
Judge Milan Smith Jr., wondered aloud why Kennedy’s habit of praying after games — and sometimes in the locker room — wasn’t questioned by the district until 2015, when a visiting school official commented on the prayer tradition that had been ongoing since shortly after Kennedy was hired in 2008.
“I’m stunned. I’m frankly stunned,” Smith said. “What role, if any, in our analysis of what Kennedy did should be the fact the district did nothing?”
Tierney replied that what school officials saw over the years was Kennedy surrounded by players, sometimes including those from the opposing team.
“To the outside observer, it looked like an inspiration speech,” Tierney said.
Andrew Nellis of Americans United for Separation of Church and State argued in support of the school district.
“What the Bremerton School District did here was not only their right but their duty,” Nellis said.
Outside the courthouse, Kennedy and his legal team were swarmed by media.
Hiram Sasser, deputy chief counsel for First Liberty Institute, said Kennedy’s case, which has put Bremerton in the national spotlight, sets a precedent on private religious observances by public employees.
“The rule they’re advocating for would ban, for example, Muslim teachers from wearing a hijab, a Jewish coach from wearing a yarmulke or even a teacher wearing ashes on Ash Wednesday or making the sign of a cross before eating a meal,” Sasser said. “So that type of rule is so broad that it would impact negatively millions of Americans and their religious liberty rights in public education.”
School district officials will not comment on a case while it’s under way, spokeswoman Patty Glaser has said. District policy permits employees to wear articles of clothing or jewelry with religious significance.
Kennedy said the high-profile litigation has been stressful, but he was glad to see the case move forward.
“It’s great that we have a legal system and that I actually get to see it work,” he said. “I’m just blessed that we got to be here.”
Kennedy defended the sometimes contentious dialog he ignited with his suit.
“I’m very encouraged because it really is letting everybody know what our constitutional rights are and people start to communicate and start asking the question, ‘What are our rights?’ Everybody here questions what they are, but to find out what the Constitution really means, it’s great to be involved in it. Good communication, we need more of that.”
Kennedy did not reapply for the coaching job, as coaches must do annually. He received positive job evaluations until 2016 when the district noted “a lack of cooperation with the administration” and issued the recommendation “do not rehire.”
“I want to be a coach. I want to be out there with my young men,” Kennedy said. “I really believe (coaches) are one of the mentors for these young men to become somebody in society, to know how to be better young men.”
Kennedy’s cause has garnered support from legal allies, including former Seahawks receiver and U.S. congressman Steve Largent, former Dallas Cowboy defensive tackle Chad Hennings and an attorney for two Garfield High School football coaches, who joined their players in September in a pregame demonstration to support the Black Lives Matter movement.
The Ninth Circuit judges panel will issue a written decision on Kennedy’s appeal. No date for the ruling has been publicized.