At stake is whether the Bremerton School District curtailed Kennedy’s First Amendment rights by punishing him after he continued to pray on the field, despite being warned not to, or whether Kennedy’s actions while he was acting as a football coach pressured students into practicing Christianity with him.
The lower courts have thus far sided with the Bremerton School District, which has been backed by supporters of the separation of church and state, as well as local Bremerton religious leaders.
Kennedy’s case also has become a cause célèbre in conservative circles, and has drawn court filings in support from Republican attorneys general and from NFL players.
The case, which involves national organizations on both sides, is being watched closely, as it could possibly set a new precedent governing the separation of church and state.
On Monday, the Supreme Court will hear oral arguments in Kennedy v. Bremerton School District, a case that started in 2015, when Kennedy, then the assistant coach of the Bremerton High School football team, was asked by the school district to end his practice of praying with players on the 50-yard line right after football games.
Kennedy and his lawyers maintain that he was engaged in a personal prayer and never asked players to join him. However, administrators told lower courts that his postgame pep talks to his players on the field included religious language and that he invited players on other teams to join him midfield.
A school administrator told a lower court that one football player, an atheist, reported feeling compelled to participate because “he feared he would get less playing time if he declined.”
The controversy over the midfield prayer stirred up a public frenzy as the 2015-16 season progressed, including a game when members of the public rushed the field to pray alongside Kennedy, and another game when a group of Satanists invited by students asked the district for permission to pray on the field.
Eventually the district suspended Kennedy with pay, citing concerns over his continued praying on the field. The district, in an announcement at the time, said his actions possibly violated the First Amendment’s establishment clause, which states that government will not favor one religion over another.
By the end of the 2015-16 football season (the Knights ended that season with three wins and seven losses), Kennedy’s contract was over, the head coach recommended that Kennedy not be rehired and Kennedy declined to reapply for his job.
But the national fight was just beginning.
Kennedy and his lawyers with First Liberty, a law firm that takes on clients who believe their religious freedom is being restricted, filed a lawsuit against the school district, saying that it shouldn’t have punished him for praying on the field.
First Liberty maintained that Kennedy’s prayers were between him and God, and not a prayer that he was leading in his official capacity.
“If you define government speech to include basically everything that you do while on the job, that really limits the free speech rights of teachers and coaches,” First Liberty attorney Stephanie Taub told Crosscut in the week before the hearing.
But the group Americans United for the Separation of Church and State, which is representing the Bremerton district in court, contended that while the district can’t restrict or punish employees for what they say or what religion they practice, it has a right to restrict what a public employee does when acting as a school district representative. That includes being a football coach.
“When a coach heads immediately to the 50-yard-line after a game when the team huddle occurs, that is acting very much in his official capacity,” said Rachel Laser, president and CEO of Americans United for the Separation of Church and State, last week. “Everybody who's ever played team sports … knows that you go join your coach right after the game, no matter what, whether it’s a win or loss.”
As part of its court filings, the group submitted photos of Kennedy kneeling with football players of multiple teams at midfield, as he held both team’s helmets in the air, saying that shows he was acting in his official capacity and not as a private citizen.
Both sides also agreed that the district had offered Kennedy other places to pray away from the field or from public view, but that Kennedy declined to do so.
It’s not the first time that this case has been taken to the U.S. Supreme Court. In 2019, the U.S. Supreme Court declined to hear the case, citing questions over the facts. However, four of the nine justices, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, signed an opinion questioning whether the district violated Kennedy’s free speech and religious rights.
Today, two years after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg on the high court, there is a conservative majority on the court, which could be an advantage for Kennedy’s case.
Both national groups say they hope for clarity on the question of religion at public schools.
“As a mom, I'm going to be listening for whether the court is capable of understanding and having empathy for teenagers and what it's like to idolize your coach, to fear your coach, to want the benefits that your coach has and to experience your coach, pressuring you to join him in doing something that costs you your religious freedom,” Laser of Americans United told Crosscut.
Lawyers for First Liberty also say that religious freedom is at stake.
“The way we see the broader issue is, a lot of times school districts think that it's their responsibility to create kind of religion-free zones, and to stifle any mention of religion because they're afraid of establishment clause concerns. And we think that this is a misunderstanding, and schools can sometimes — not always, but sometimes — go too far and to infringe on the personal rights of teachers or students,” Taub, the First Liberty attorney, said.
As for Kennedy, who said he moved to Florida several years ago to help his wife’s family through medical issues, told Beck that the outcome he seeks is to return to Bremerton High School:
“I'm a man of principle, I guess. And that's my hometown. My kids … live right by the school. All my family's there, all my friends.”
Update: story has been updated to include a link to the audio of the oral arguments made before the U.S. Supreme Court in the Kennedy v. Bremerton School District case.