A VIP Religious Freedom Case the Supreme Court Must Accept

Nearly six years have gone by since officials of the Bremerton (Wash.) School District fired football coach Joseph Kennedy for the sin of bowing down in public for 15 seconds of prayer following his team’s games.

In the years since, Kennedy, represented by the First Liberty Institute, the Plano, Texas-based public interest law firm that specializes in First Amendment/religious freedom litigation, has held firm in his constitutional right to pray, in public or private.

Kennedy, who served in the U.S. Marines before becoming a high school football coach, made a promise to God years ago that he would thank the Lord after every game, win or lose, and for his players.

He did exactly that for seven years, beginning with his first-ever game as a coach in 2008, with not a single complaint from anybody. Over the years, Kennedy allowed players and coaches from his and the opposing team to join with him at mid-field for a pep talk that often included a closing prayer.

But then in 2015, Kennedy got a letter from the school district’s superintendent, Aaron Leavell, ordering him to stop praying in public before, during, and after games.

Among much else, Leavell made three significant statements to Kennedy in the letter to justify telling him the school district must avoid violating the Establishment Clause of the First Amendment because failure to do so could result in costly liabilities:

• “Many assistant coaches, including yourself, are not professional educators and thus likely have not been exposed to extensive education and training regarding the admittedly complex constitutional law issues arising in public education.”

• “In the public schools context, it is clear that schools and their employees may not directly prohibit students from participating in religious activities, nor may they require students to participate in religious activities” but “schools and their employees, while performing their job duties, must remain neutral – allowing non-disruptive student religious activity, while neither endorsing nor discouraging it.”

• “You may continue to provide motivational, inspirational talks to students before, during and after games and other team activity, focusing on appropriate themes such as unity, teamwork, responsibility, safety, endeavor and the like that have long characterized your very positive and beneficial talks with students. Your talks with students may not include religious expression, including prayer. They must remain entirely secular in nature, so as to avoid alienation of any team member…”

Much more can and should be said regarding Leavell’s dogmatic assertions, but for our purposes here, these three will suffice:

First, while it is true that constitutional law can be complicated and difficult for non-lawyers to comprehend, the plain language of the First Amendment, which Leavell quotes, is not difficult to understand: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”  Please note the absence of any distinction here between public and private exercise.

An establishment of religion is a state-imposed creed professed by a state-approved church or other religious institution. Neither Congress nor any lower level of government, including a public school district, can do so.

A high school football coach praying on the field or in the locker room before, during or after games neither requires anybody to attend an approved service, nor imposes any penalty whatsoever for refusing to do so. This is not difficult to comprehend.

And neither Congress nor any lower level of government, including a public school district, has the constitutional authority to prohibit anybody, including public school football coaches, from freely exercising their religious beliefs. Neither is this difficult to understand.

Second, a public school district barring an employee from freely exercising his or her religious freedom is not a neutral stance vis-a-vis religion, it is a violation of constitutional rights just as it would be for that same school district to order an employee to attend a particular religious service or be fired.

If the crucial measure is neutrality, then the school district can say nothing either way about the free exercise of religious freedom under the First Amendment by students or employees.

Finally, banning the expression of religious opinion and speech is by definition a violation of the First Amendment because it prevents the free exercise of both religious freedom and the First Amendment’s equally important and binding guarantee of freedom of speech.

Again, this is not difficult to comprehend for anybody whose mind is not fogged by the purposeful misrepresentations of the First Amendment by left-wing groups like Americans for Separation of Church and State.

Kennedy has suffered multiple setbacks since receiving Leavell’s letter, the latest coming Friday when the Court of Appeals for the Ninth Circuit upheld the school district’s termination. But that decision just might clear the path to the Supreme Court.

“We will appeal and are confident that the Supreme Court of the United States will right this wrong. 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,” said Jeff Mateer, First Liberty’s chief legal officer.

Given its recent decisions regarding churches and free exercise during the Covid crisis, it seems logical that the conservative majority will accept that appeal and then, let us pray, use it as the appropriate venue for affirming that the First Amendment means what it says—as the conservative majority on the nation’s highest tribunal recently told the judges on the same Ninth Circuit regarding unconstitutional abridgment of church congregations’ right to assemble and practice their religious beliefs.