BREMERTON — A month after three judges of the Ninth Circuit Court of Appeals denied former Bremerton High School football coach Joe Kennedy’s bid to overturn the dismissal of his lawsuit against the Bremerton School District, Kennedy and his First Liberty Institute lawyers have decided their next step.
Kennedy and his legal team filed a petition Sept. 21 requesting the case be considered by the entire circuit court — 11 judges, including the chief judge.
To sum up The Bremerton School District chose not to renew Kennedy’s coaching contract after he refused to stop praying on the 50-yard line after games, in public view as a public employee. The district said Kennedy’s post-game prayer on school grounds made it appear the public school district was giving special consideration to a specific religion in violation of the U.S. Constitution.
Kennedy and his lawyers sued on Aug. 8, 2016, asking that he be reinstated as the assistant football coach. On Sept. 19, 2016, U.S. District Court Judge Ronald Leighton denied Kennedy’s request for a preliminary injunction — an order requiring the school district to reinstate him. Kennedy, who is represented by the First Liberty Institute, filed an appeal Oct. 3, 2016.
The circuit court heard arguments from both sides on June 12, and ruled in favor of the school district.
“An en banc rehearing by the Ninth Circuit is necessary, given the extreme, far-reaching opinion issued by the three-judge panel,” said Mike Berry, a lawyer with First Liberty Institute. “If the current decision stands, a teacher could be fired for wearing a yarmulke to school. A coach could be fired for bowing his head in prayer when a player is hurt.”
In the opinion issued by the circuit court Aug. 23, Judge Milan Smith wrote, “While we ‘recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,’ such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all,” quoting the published opinion on the 2000 lawsuit Santa Fe Independent School District v. Doe.
First Liberty Institute President and CEO Kelly Shackelford said in response: “Banning coaches from praying just because they can be seen is wrong and contradicts the Constitution. We hope the Ninth Circuit will recognize the significance of this case. The future of private prayer hangs in the balance.”
Berry said in an interview following the publication of the circuit court’s opinion, “We’re disappointed. We believed and continue to believe that the facts are on our side and the law is on our side. We knew it was going to be difficult … Unfortunately, in this case, the court did not rule in our favor. That’s not going to stop us from fighting for religious liberty.”
If the petition for an en banc hearing is denied, there are other options. After the initial opinion was published, Berry said they could also ask the Supreme Court to review the case, or “simply go back to trial.”
To read previous coverage of this issue, visit:
Aug. 24, 2017: Circuit court rules in favor of Bremerton School District, against former coach, in appeal
June 14, 2017: Ninth Circuit Court of Appeals hearing focused on three key points
June 9, 2017: Kennedy’s case goes to Ninth Circuit Court of Appeals June 12
Sept. 22, 2016: Kennedy’s preliminary injunction denied by U.S. District Court judge
Aug. 11, 2016: Former coach Kennedy files lawsuit against Bremerton School District
Dec. 15, 2015: Coach Kennedy files religious discrimination charge against the Bremerton School District
Nov. 13, 2015: Public comments on public prayer
Oct. 26, 2015: Satanic Temple offers to hold invocations after next football game
Oct. 26, 2015: Kennedy to file lawsuit against school district over post-game prayers
Oct. 22, 2015: School board and public comments on post-game prayer
Oct. 17, 2015: Centralia football team joins Bremerton coach in prayer
Oct. 14, 2015: Kennedy to resume prayers with football team
Sept. 18, 2015: Football coach won’t be fired; can’t participate in post-game prayers
Sept. 16, 2015: Post-game prayers at center of controversy