Several of the judges on the 9th U.S. Circuit Court of Appeals have charged that a free-speech policy imposed by a school district in Washington state simply means the Constitution’s Free Speech Clause “simply doesn’t apply.”
But they were outvoted by other judges endorsing the school’s speech limitations on football Coach Joe Kennedy, meaning his case now is headed back to the U.S. Supreme Court.
The case has developed over several years. Bremerton High School coach Joe Kennedy was threatened, then disciplined and fired for holding brief postgame prayers after his team’s football games.
The Supreme Court of the United States declined to review the case in January 2019, explaining that more facts needed to be determined. That decision returned Kennedy’s case to the lower courts, where a district judge granted the school’s demand for a summary judgment.
Kennedy then returned to the 9th Circuit, where a three-judge panel ruled for the school. Now the full court has denied any further involvement, and Kennedy’s lawyers have said it will go back to the Supremes.
“We will appeal and are confident that the Supreme Court of the United States will right this wrong,” said Jeff Mateer, First Liberty Institute’s chief legal officer. “Banning coaches from praying just because they can be seen contradicts the Constitution. Coach Kennedy has been denied the freedom to coach for over five years, but he’s never been a quitter. We will fight on.”
The issues was so divisive in collected multiple opinions, concurrences, statements and dissents, the last of which were led by Judge Diarmuid O’Scannlain, who wrote, “The opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.”
He pointed out that four justices on the Supreme Court already were critical of the 9th Circuit’s “highly tendentious” interpretation of precedent.
“Rather than heed the extremely rare interlocutory guidance of four justices, the panel has doubled down on its ‘troubling’ view. The panel now declares no only that the school district was permitted to suspend Kennedy, but also that it was constitutionally required to do so.”
He continued, “That is strange indeed, given that this is not an action brought by a student or parent who alleges the government coerced his or her participation in a state-sponsored prayer service. No matter, the opinion here weaponizes the Establishment Clause to defense the Free Exercise claim on one man who prayed ‘as a private citizen.'”
The majority started out by insisting they list their own “facts” on which to base their decision.
But O’Scannlain’s dissent made clear, “Our circuit now lies in clear conflict with [precedent] and decades of Supreme Court cases affirming the principle that the First Amendment safeguards – not banishes – private, voluntary religious activity by public employees.”
The three-judge panel of the 9th Circuit, the most overturned appellate division in the nation, issued its decision last winter, deciding that Bremerton High School did not violate Kennedy’s First Amendment free-speech rights when it fired him.
Kennedy argues his prayers at the 50-yard line after games were not the same as being in front of a classroom. He contends he was speaking as a private citizen rather than a public employee, whose speech can be restricted by the school district.
The U.S. Supreme Court previously returned the case to the district court to address constitutional issues. At the time, the justices noted that the Ninth Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
The Ninth Circuit’s decision, written by Judge Milan D. Smith Jr., said Kennedy’s “attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer,” KCPQ-TV in Seattle reported.
“Instead, he was engaging in public speech of an overtly religious nature while performing his job duties,” Milan claimed.
First Liberty explained banning coaches from praying “just because they can be seen is wrong and contradicts the Constitution.”
On the previous trip to the Supreme Court, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh said the court needed more information to resolve the dispute.
Kennedy has garnered support from political and religious leaders, including President Trump, Franklin Graham, Hall of Fame football coach Bobby Bowden, and former NFL players Steve Largent and Chad Hennings.
Let’s show our support for Coach Kennedy, a former Marine who didn’t back down on prayer. https://t.co/K8VlViouIN
— Franklin Graham (@Franklin_Graham) August 25, 2017
Students had voluntarily joined the coach in prayer a number of times, and he eventually adjusted his practice to pray at a time when they were occupied and could not join.
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