Robert O’Hara Quoted in “‘Stark’ Facts Make Praying Coach’s High Court Bid a Hail Mary”

Law360 Employment Authority

Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “‘Stark’ Facts Make Praying Coach's High Court Bid a Hail Mary,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

Lawyers for a football coach who lost his job over post-game prayer sessions vowed to seek U.S. Supreme Court review after the Ninth Circuit ruled against him Thursday. But while his case once seemed destined for the justices' review, experts say the underlying facts make it a poor candidate for the high court docket.

Joseph Kennedy, who coached football for the Bremerton School District in Washington state, sued the district after it declined to renew his contract in 2016 over his refusal to make his routine, post-game prayer ritual more private. Kennedy insisted on praying on the 50-yard line right after the final whistle, where he was often joined by players and fans.

The coach argued that barring him from praying on the football field after the game trampled his constitutional rights to free speech and free religious exercise, but the school district said allowing him to keep up the activity could make it look like the organization was endorsing one particular faith, which would be a constitutional violation.

The Ninth Circuit sided with Bremerton on Thursday, and Kennedy's legal team wasted no time announcing its plan to take the battle up to the nation's top court.

From the surface, his chances of a high court review appear better than average. The Supreme Court has a conservative majority and includes several longtime champions of religious freedom. …

Epstein Becker Green employment partner Robert O'Hara also pointed out that evidence showing Kennedy preaching to players undercuts his case and his chances at the high court.

"He started basically preaching to the kids, proselytizing and all that, it was not private speech anymore, it was public," he said.

He added later that "it doesn't seem like a really close call from the balancing perspective on the establishment clause."