When the U.S. Supreme Court ruled in June that Bremerton assistant football coach Joseph Kennedy had the right to pray on the field, it wasn’t widely understood then that the court had also ordered the school district to give him his job back.
The day of the ruling, Fox News host Sean Hannity expressed doubts the district would follow through. But one of Kennedy’s lawyers clarified that they had no choice: “We’re ready to have that fight. If they want to defy the Supreme Court, I think they’re gonna realize they made a serious mistake.”
Kennedy was sunnier about it all.
“As soon as the school district says ‘Hey, come back,’ I am there, first flight,” he said.
So the school district has been flummoxed about what’s happened since. They complied by offering to reinstate him, they say, and now the football season is in full swing. But Kennedy is nowhere near the sidelines.
“He’s had the paperwork for his reinstatement since August 8th, and we haven’t gotten so much as a phone call,” says Karen Bevers, spokesperson for Bremerton schools.
Instead, as the Bremerton Knights were prepping for the season in August, Kennedy was up in Alaska, meeting with former Vice President Mike Pence and evangelist Franklin Graham. On the eve of the first game, which the Knights won, Kennedy was in Milwaukee being presented with an engraved .22-caliber rifle at an American Legion convention.
The weekend of the second game, which the Knights also won, Kennedy appeared with former President Donald Trump at the Trump National Golf Club in New Jersey. He saw Trump get a religious award from a group called the American Cornerstone Institute.
Coming up this month, Kennedy’s scheduled to give a talk as part of a lectureship series at a Christian university in Arkansas.
“Place a PR/Publicity Request,” invites his personal website, where he’s known as Coach Joe.
It’s an increasingly surreal situation for the Bremerton schools. They were ordered to “reinstate Coach Kennedy to a football coaching position,” according to court documents. But the now-famous coach is out on the conservative celebrity circuit, continuing to tell a story about “the prayer that got me fired” — even though Bremerton never actually fired him.
In 2015, he was put on paid leave near the end of the season after holding a series of prayer sessions on the field with students and state legislators. He still got paid for his full assistant coach contract, about $5,000. High school assistants often work on yearly deals, and Kennedy, at odds with the head coach and aggrieved by what had happened, never reapplied to work the 2016 season.
“He was not terminated,” Bevers said. The head coach at the time had moved on, as did most of the coaching staff.
This did not stop Kennedy’s lawyers from telling the Supreme Court repeatedly that he was fired.
“The record is clear that Coach Kennedy was fired for that midfield prayer,” lawyer Paul Clement told the nine justices in the first 15 seconds of the oral arguments of the case in April. The words “fired,” “fire” or “firing” were used 16 times in the hour and a half session.
It wasn’t true though. The district’s lawyers tried to correct the record, to no avail.
“You can’t sue them for failing to rehire you if you didn’t apply,” one lawyer, Mercer Island’s Michael Tierney, argued during a lower court session. “The District didn’t get an application from him, had four positions to fill and filled them with people who had applied. It didn’t fail to rehire him.”
The Supreme Court simply ignored this inconvenient fact — along with a host of others. At one point during oral arguments, as a different school district attorney was saying the narrative that had been spun didn’t fit with the facts — that the coach’s prayers were neither silent nor solitary, nor was he fired — Justice Samuel Alito interrupted him, saying “I know that you want to make this very complicated.”
Alito persisted in asking about the coach being fired — six times he said it, to the point that the lawyer finally corrected him. Which is a touchy thing to do with a Supreme Court justice.
“It’s not a question of firing, and in fact, he was put on paid leave,” the lawyer pleaded, fruitlessly, to Alito.
In the end, it all was too complicated. The effect of the court’s order is that Bremerton has to reinstate someone who didn’t apply for the job then and doesn’t appear eager for it now. It’s as if the justices wanted to script an ending for a Christian redemption movie. But real life isn’t cooperating.
What’s left of the case has been sent back to federal court in Seattle. A judge there is overseeing the rehiring issue and also how much in attorneys’ fees the Bremerton schools will pay Kennedy’s lawyers. That judge has given them 60 days to submit more information on both.
By then the football season will be ending. So maybe next year?
“It’s one of many things that has been odd and awkward about this situation,” Bevers said. “But when you’re directed by the U.S. Supreme Court to do something, you do it.”
This past week the Supreme Court justices were hand-wringing in public about why so many people seem to dislike them. The way Chief Justice John Roberts phrased it is that the public is questioning the “legitimacy of the court.” He said people shouldn’t base their views on whether the court’s decisions are popular.
That’s fair enough. The rule of law isn’t supposed to bend with the winds. But Justice Elena Kagan got much closer to the mark.
“I think judges … undermine their legitimacy when they don’t act so much like courts,” she pointedly said this past week. “And when they don’t do things that are recognizably law, and when they instead stray into places where it looks like they’re an extension of the political process, or where they’re imposing their own personal preferences.”
Your honors, I submit for the record, the Coach Kennedy case. Exhibit A.