WASHINGTON, D.C. – U.S. Sens. Ted Cruz (R-Texas), Ranking Member of the Senate Judiciary Subcommittee on The Constitution, and James Lankford (R-Okla.) today filed an amicus brief signed by 11 other Senators and 14 Representatives in support of Coach Joe Kennedy in Kennedy v. Bremerton School District. The brief asks the Supreme Court to reverse the Ninth Circuit’s decision that allowed Coach Kennedy to be fired for silently kneeling and praying after school football games. U.S. Rep. Vicky Hartzler (R-Mo.) is co-leading the brief for the House. Senate co-signers include Sens. Jim Inhofe (R-Okla.), John Boozman (R-Ark.), Tim Scott (R-S.C.), Steve Daines (R-Mont.), Roger Wicker (R-Miss.), Kevin Cramer (R-N.D.), Mike Lee (R-Utah), Marco Rubio (R-Fla.), Roy Blunt (R-Mo.), and John Thune (R-S.D.).
In the brief, the members wrote:
“This Court’s review is urgently needed to correct the Ninth Circuit’s clearly erroneous interpretation of the Establishment Clause that upheld Respondent’s firing of Kennedy and obliterates the Free Exercise rights of public school teachers and coaches. The immediate and cascading effects of this case can scarcely be overstated—if the Ninth Circuit’s holding is left to stand, certain school districts will be emboldened (and others will feel compelled) to curtail the Free Exercise and Speech rights of half a million public school teachers and coaches who work in Ninth Circuit jurisdictions, while seriously threatening those rights for the three million teachers and coaches in other circuits nationwide.
“According to the Ninth Circuit, teachers’ and coaches’ speech degrades into unprotected government speech the moment they step through the schoolhouse gate and engage in ‘expression . . . during a time when [they are] generally tasked with communicating with students’—meaning any time during school hours or functions.
“Perhaps realizing that position is indefensible, the Ninth Circuit doubles down by concluding that even if Kennedy’s speech is private and protected, the Establishment Clause still requires the School District to shut it down and punish him to avoid the perception that it ‘endorsed’ Kennedy’s religious beliefs . . . Under this expansive legal theory, any private religious expression by a teacher or coach violates the Establishment Clause and requires the school’s immediate and decisive action to stop it—all because there’s a chance that someone might think that the School District endorses the otherwise private religious expression. But that theory, of course, contradicts both the Establishment Clause’s purpose and this Court’s precedent.
“The Establishment Clause was enacted to protect the religious practice and expression of individuals and minorities from the preferences of majority rule, whether that majority be theist or atheist. The drafters never intended to eradicate religiosity in public life—whether in the form of prayer or any other expression. But the Ninth Circuit’s approach falsely pits the Free Exercise and Establishment Clauses against each other in a zero-sum game.”
Read the full text of their amicus brief here.
Kennedy was head coach for the Bremerton High School junior varsity football team and an assistant coach for the varsity team. After each game, he waited until the players cleared the field, then took a knee and silently prayed. Bremerton High School sent Kennedy a letter demanding he stop praying after games. Coach Kennedy’s contract with Bremerton School District was not renewed, resulting in his termination.
Kennedy filed a lawsuit against Bremerton School District, which a federal district court dismissed. On appeal, a three-judge panel of the Ninth Circuit argued Kennedy’s prayers were not protected by the Constitution because he was praying as a public employee rather than in his private, personal capacity. In 2019, Coach Kennedy asked the Supreme Court to review the case, and Sen. Cruz joined 14 members of Congress to file an amicus brief in support of Coach Kennedy. The Court denied review of the case, with a concurring statement by four Justices requesting more information. As such, the case went back to the lower courts. In March 2021, a three-judge panel of the Ninth Circuit upheld the District Court’s decision that Kennedy’s silent, public prayers after football games violate the Establishment Clause, and the circuit court denied a request for en banc review.