January 23, 2019

The Supreme Court decided not to consider an appeal by Joseph Kennedy, who was fired from his job as a high school football coach in Bremerton, Washington, for praying with students on the field after games.  In 2017, the infamous 9th Circuit Court of Appeals in San Francisco refused to reinstate Kennedy on First Amendment grounds of religious discrimination, ruling that he was acting as a public employee and not a private citizen when he prayed on the field immediately after games in school-logoed attire and in front of parents and students. 

A panel of the same court also rejected his request for a rehearing, saying that he "had a professional responsibility to communicate demonstratively to students and spectators and he took advantage of his position to press his particular views upon the impressionable and captive minds before him."

(I think it should be noted that those judges have a strange definition of “captive minds,” considering this happened after the games were over and any students who joined him in praying did so voluntarily.) 

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While the Supreme Court decided not to hear his appeal, there is a silver lining.  In explaining the rejection, Justice Samuel Alito wrote that the 9th Circuit’s understanding of public school teachers' free speech rights was "troubling" (I’d add, as is their understanding of the First and Second Amendments in general.)  Alito also stated that "denial of certiorari does not signify that the Court necessarily agrees with the decision" of lower courts, which "should have made a specific finding as to what petitioner was likely to be able to show regarding the reason or reasons for his loss of employment."

Specifically, he said it should be established whether Kennedy was fired for violating his duties as a public employee or exercising his religious beliefs as a private citizen.  It must be determined whether, after a game, he was still expected to be supervising students, so that taking time out to pray was neglecting his duties…or were his duties finished, so it would have permissible for him to engage in other private conduct, such as calling for dinner reservations. Under that scenario, I think he could argue that securing a place in Heaven should be at least as constitutionally protected as securing a table at TGI Friday’s.

Kennedy’s attorneys are optimistic for a future appeal, now that the SCOTUS has scolded the lower court and given them a road map of what they need to do.  This isn’t over, so keep praying – but only on your own time, of course!



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