By Chris Henry / Kitsap Sun
BREMERTON — Joe Kennedy, the former assistant Bremerton High School football coach suing the district over its ban on prayer after games, has hit a legal roadblock.
The Ninth Circuit Court of Appeals has denied an appeal that would have kept alive Kennedy’s petition to regain his job while his suit to allow prayer on the field after games makes its way through the courts.
In August, a three-judge panel of the court ruled that Bremerton School District did not have to reinstate Kennedy. He was placed on paid leave from the job in 2015 for refusing to obey an order from administrators that he cease praying on the football field following games. Kennedy had also been leading students and coaching staff in locker room prayer since 2008. Kennedy’s contract was not renewed in 2016.
The case made national headlines and put the district in the media spotlight.
“I’m disappointed that the court decided not to rehear my case because it could affect so many other coaches and teachers,” Kennedy said in a statement provide through his attorneys. “When I joined the Marines, I swore an oath to defend the Constitution. I never thought that one day I’d have to fight for my own constitutional rights.”
Kennedy initially refrained from publicly praying after games when district officials became aware in September 2015 that his post-game pep talks touched on religion and asked him to stop. Kennedy’s legal team and the district sought to reach an agreement on accommodations, but Kennedy was not satisfied with the offer of a private place to pray off-field. He was placed on leave after openly defying the ban at a game Oct. 16, 2015.
In its August ruling, the Ninth Circuit panel wrote that Kennedy “spoke as a public employee, not as a private citizen when he kneeled and prayed on the fifty-yard line immediately after games in school-logoed attire while in view of students and parents.”
Kennedy was seeking an en banc review from the Ninth Circuit Court, a hearing in front of the full circuit that could have overruled the panel’s decision. A majority of justices voted to deny the hearing.
“It is disappointing that the Ninth Circuit would refuse to hear coach Kennedy’s case en banc, especially in light of the extreme, far-reaching opinion issued by the three-judge panel,” said Mike Berry, deputy general counsel for First Liberty Institute, the firm taking the lead on the highly publicized case.
Kennedy’s attorneys argue that denying his right to pray on the field after games is equivalent to denying school employees the right to wear a crucifix, yarmulke or hijab. The district has said that its policies do not prohibit employees from wearing religious garb.
Kennedy’s legal team vows to take his case to the U.S. Supreme Court. Just as with the Ninth Circuit Court, however, there is no guarantee the Supreme Court will accept his case.
“The odds of any case making it to the Supreme Court are pretty rare,” Berry said. “But we’re hopeful.”
Asked if the appointment of conservative Neil Gorsuch to the Supreme Court fuels that hope, Berry said: “I certainly think that having Gorsuch on the court has been a positive development for the Constitution and religious liberty in general, but there’s no way to predict what the outcome of that petition will be.”
Kennedy’s legal options aren’t exhausted even if the Supreme Court denies his appeal. His initial suit was filed in August 2016 in U.S. District Court. He also petitioned the court to order that he be allowed to work while the case proceeded. The lower court denied the injunction, leading to the appeal before the Ninth Circuit Court. The main suit in U.S. District Court was stayed while the injunction question was decided and the case remains on hold.
Patty Glaser, spokeswoman for Bremerton School District, said the district was aware of the ruling and is waiting for Kennedy’s next legal move.
“The district will now await Mr. Kennedy’s decision whether to petition to the United States Supreme Court or to proceed with the remainder of his case in the district court,” Glaser said. “The district looks forward to the eventual conclusion of this matter.”