The 9th Circuit has—again—concluded that Bremerton School District did the right thing when it ordered Coach Kennedy to quit praying at the 50-yard line immediately after each football game. SCOTUS has rejected Coach Kennedy’s case once, but it will probably have to address it again. This time around I’m guessing that SCOTUS will reverse this decision and rule in favor of the coach.
This is one of those cases that will stir up the culture wars. Unfortunately, people on both sides will oversimplify the situation. The 9th Circuit goes to great pains to emphasize the particular circumstances of the case. The district made numerous efforts to find a way to accommodate Coach Kennedy’s desire to offer a prayer after the game without risking the perception that it endorsed his activities. Many will wonder: what’s the big deal? Why can’t the school just let the man say his prayer? If some of the players choose to join him, so what?
But it’s not that simple because Coach Kennedy, in the words of a concurring opinion, “painted BSD into a corner.” When the district ordered him to cease engaging in such a public and demonstrative demonstration of his faith, he took this private personnel matter to Facebook with this post: “I think I just might have been fired for praying.” Then he went on a media blitz. He riled up the crowd with “his pugilistic efforts to generate publicity in order to gain approval” for his position.
It worked. The Christians rose to the occasion:
Shortly thereafter, BSD “was flooded with thousands of emails, letters, and phone calls from around the country,” regarding the conflict over Kennedy’s prayer, “many of which were hateful or threatening.”
So the district had to have tight security at the next game. A Satanist group had gotten wind of the story and notified the district that it intended to conduct its own ceremony at mid-field after the game, if other groups were allowed to do so. It turns out that the Satanists did not charge the field, but others did in an effort to join the group surrounding the coach at the 50-yard line. The district described it as a stampede that it could not control, despite the increase in security.
Of course all of this got a lot of media and social media attention, so perhaps you can understand the concern of district leaders that if, after all this controversy, they backed down and allowed the coach to offer a prayer after the game, surrounded as usual by players from both teams, it would look like the district had decided to permit this. That was the sticking point for the district. It feared that allowing this to happen would be perceived by the “objective observer” as an endorsement of a religious practice. They were dealing with a coach who believed he was on a righteous moral crusade, and was unwilling to compromise:
The District tried repeatedly to work with Kennedy to develop an accommodation for him that would avoid violating the Establishment Clause; Kennedy declined to cooperate in that process and insisted that the only acceptable outcome would be praying immediately after the game on the 50-yard line in view of spectators and students.
So it’s headed back to the Supreme Court. The Court refused to take the case in its preliminary stage, but four justices joined in an unusual opinion expressing concerns about the 9th Circuit’s view of the free speech rights of teachers. Those four were Alito, Gorsuch, Thomas and Kavanaugh. It’s easy to see the newbie, Justice Barrett, joining with those four. The new opinion from the 9th Circuit attempts to directly address the concerns expressed by the four justices. Whether it has done so satisfactorily remains to be seen. Stay tuned!
This one is Kennedy v. Bremerton School District, decided by the 9th Circuit on March 18, 2021. It’s at 2021 WL 1032847.
DAWG BONE: HOW WOULD COACH TAYLOR HAVE HANDLED THIS?
Tomorrow: Speaking of Coach Taylor, what about transgender athletes?