It’s all over now except for the shouting about who is going to pay Joe Kennedy’s lawyer bills.
That would be the Bremerton School District, according to Kennedy’s lawyers who at the US Supreme Court scored a nationwide victory Monday in a local controversy over the assistant varsity football coach’s right to pray on the field after games.
The district is not on the hook for damages, as Kennedy asked only to be reinstated as a Bremerton High School coach and to be allowed to hold a private prayer on the field after games.
However, the case racked up a huge tab as it bounced back and forth between the trial court, an appellate court and the US Supreme Court.
Hiram Sasser, executive general counsel for First Liberty, said Wednesday afternoon that the organization has not made a final tally, but he estimated the bill would run into the millions of dollars.
“I sure hope it’s not eight figures,” Sasser said Wednesday in a phone interview with the Kitsap Sun, meaning $10 million or more. “Any government entity, when they are defending themselves in a constitutional law case, they really have to make sure they are right.”
For its part, the district took issue with the decision’s focus on the three prayers Kennedy performed in October 2015, not the public prayers leading up to that, some of which others included and spanned seven years. Further, the district understands the ruling as affirming that officials can set “guidelines” for how Kennedy will pray.
“It described his prayers as quiet and personal and spokesperson that Mr. Kennedy sought only to pray alone,” district Karen Bevers wrote Friday in an email to the Kitsap Sun. “That wrongly describes what actually happened here: The school district had to respond to Mr. Kennedy’s whole course of conduct and his consistent demand to have prayers with students. But the court’s repeated emphasis on praying alone underscores that Bremerton School District is entitled to establish guidelines to ensure that employees don’t coerce or pressure students to pray or take part in religious exercises Contrary to the students’ and their families’ faith.”
Sasser acknowledged that Kennedy had been joined in one of those three prayers, but said Kennedy intended to be alone. The lawsuit focused on those three prayers.
“He had no way of dealing with that,” Sasser said of people joining Kennedy, later saying: “Ten years from now nobody will notice what he’s doing after the game. Some people might think he’s tying his shoe. That’s ultimately what would have happened if the school district let this play out.”
Bevers wrote the district would not comment on further specifics on the guidelines, but Sasser said Kennedy plans to say his post-game prayer – described as 15 to 30 seconds – while the team is occupied with other matters.
“He’s going to make sure he times it in the right way,” Sasser said. “It’s so short, that’s pretty easy to do, so that scenario does not happen.”
In the lead up to the decision, both sides acknowledged that Kennedy appeared to be heading for victory. Sasser also noted that in January 2019, in refusing to take Kennedy’s case at that time, four justices from the court’s conservative block indicated they wanted to revisit the case.
To Sasser, “The writing was on the wall.”
“I was really surprised the district did not want to resolve it at that time,” Sasser said.
Bevers wrote in the email Friday that the court records shows the school district offered “repeatedly” to accommodate Kennedy’s desire to pray as long as he was not delivering prayers to students or coercing students to join him.
“Mr. Kennedy’s lawyers refused to accept any resolution that didn’t include Mr. Kennedy praying in a way that involved students,” Bevers wrote. “The school district’s first priority had to be, and remains, protecting students’ religious freedom. Additionally, throughout the litigation, the school district had to abide by the lower court rulings holding that Mr. Kennedy’s actions were a violation of the Establishment Clause. The school district could not ignore those rulings.”
Sasser said the district could immediately reinstate Kennedy and did not have to wait until the formal orders from the decision are signed, which he said could take two to three months. He also said Kennedy’s attorneys were willing to negotiate the attorneys fees.
“We will have to reach out to the school district and try to resolve it in a way that makes sense for everybody,” he said, adding that he believed district employees were good people trying to do what they thought was right. Kennedy told the Kitsap Sun following the decision he held no grudges.
In the response to the questions provided by the Kitsap Sun, Bevers wrote: “The school district expects to work with its insurance carrier to determine these matters, which will be decided by the district court.”
Sasser said the ruling does not require the team to keep Kennedy forever.
“It’s not a forever job,” Sasser said. “He’ll be able to coach until whenever he decides or they decide, but they won’t be able to take action against him because he goes out on the field and prays.”
After the ruling Monday, the district released a statement saying it could not immediately confirm whether Kennedy will coach in the fall. Sasser said Kennedy’s return is inevitable.
“Clear out his locker and get it ready, because he is coming,” Sasser said.
NOTE: This story was corrected to indicate Kennedy was joined in one of the three prayers in October 2015. The three prayers were the subject of his lawsuit.
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