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.
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. “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.”
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US Supreme Court will hear arguments in WA school prayer case - Crosscut
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