Coach Loses Bid To Pray On 50-Yard Line

In Kennedy v. Bremerton School District, (9th Cir., Aug. 23, 2017),  the U.S. 9th Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a widely publicized challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games.  The appeals court concluded that Coach Joseph Kennedy was not likely to succeed on the merits of his free speech claim  It held that in kneeling and praying on the 50-yard line, Kennedy was speaking as part of his public employment.  His employer had the right to order him not to speak in his official capacity in the manner which he did.  The court added:

On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field.... 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.... That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.”

Judge Smith filed a concurring opinion to express his view that the school district's actions actions were also justified to avoid violating the Establishment Clause. The majority held that it need not reach the Establishment Clause issue.  Kitsap Sun reports on the decision.