Four U.S. Supreme Court justices threw a flag on the officiating of lower courts in the case of a high school football coach fired after praying on his own on the playing field after games. They made clear that their agreement with the high court’s decision not to take up the case was not because they necessarily agreed with lower court rulings, but because “unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”
Justice Samuel Alito, in an unusual opinion on such an order turning down an appeal, was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh in lamenting that a federal district court did not determine the real reason for Coach Joe Kennedy’s termination by the Bremerton School District in Washington. Was it because of one claim by school officials that he was neglecting students, or was it because of his prayers? (Ironically, it was a note of praise about Coach Kennedy from another school administrator that catalyzed the scrutiny of him.)
Alito had a further rebuke for the U.S. Court of Appeals for the Ninth Circuit, which had ruled against the coach. Calling the Ninth Circuit “even more imprecise on this critical point,” he criticized it for recounting the coach’s prayer-related activities over the years, “including conduct in which he engaged as a private citizen.” Alito added, “The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.”
Alito seemed to hint that there could be another day for this case and not only free speech but also religious liberty questions that could derive from it. That is certainly the message that Coach Kennedy’s First Liberty attorneys are taking from it.
Jeremy Dys, deputy general counsel for First Liberty, wrote in an FOX News op-ed “This is as close to an instant replay of a call on the field as Coach Kennedy is likely to get.”
First Liberty president Kelly Shackelford, who will be featured in the Public Policy Session of Proclaim 19, the NRB International Christian Media Convention, added in a release, “We are eager to return to the District Court, answer the questions the justices raised today, and give the Court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”
By Aaron Mercer, Vice President of Government Relations
Published: January 25, 2019