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When Kaepernick Took A Knee, He Was Feted. When Joseph Kennedy Took A Knee, He Was Sued


Two men find themselves at the center of controversy for taking a knee: Colin Kaepernick and Joseph Kennedy. Kaepernick is known for taking a knee in a pre-game protest. Kennedy is known for taking a knee in a post-game prayer.

Kaepernick’s story is better-known. After a five-year pro career, he decided to take a knee during the national anthem at games, saying, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”

After a lackluster season, he did not re-up his contract with the 49ers. His supporters cry out for his First Amendment rights, although nobody has ever denied his First Amendment rights. He has a right to say what he wishes but not to any job. Private corporations are not required to uphold free speech rights to the same extent governments are. I am grateful to Kaepernick for making so many people aware of the First Amendment. Perhaps this renewed emphasis on the U.S. Constitution will help another footballer whose story is less well known.

Meet Joseph Kennedy

In 2008 Joseph Kennedy was hired as an assistant football coach of the high school in Bremerton, Washington. He was reportedly leading their coaches and players in voluntary locker room prayers, in the tradition of Bremerton High School (BHS), a public school and thus government entity. From his first game as coach, he began a custom of kneeling, alone, on the 50-yard line after each game and offering a prayer of thanksgiving. Several games into his first season, some players asked if they could join him. He replied, “This is a free country.”

After seven years, an employee of another school complained. This single complaint from someone completely outside of the Bremerton community led the district superintendent to issue Kennedy a letter of guidance. Kennedy ceased all communal prayers immediately.

While Kaepernick became controversial by changing his own custom, Kennedy’s troubles were brought on by an external complaint against a long-standing tradition. This is the first thing to notice in today’s First Amendment wars: A huge bias toward novelty and against long-standing traditions. Novelties like same-sex marriage and genderless bathrooms become the newest sacred cows, while decades-long traditions are tossed away like yesterday’s underwear. This is evidence not of open-mindedness but of revolutionary fervor.

Traditions connect us with our past and serve as time-tested vehicles to inculcate community values. Revolutionaries hate traditions precisely because they work. Revolutionary cries for tolerance and open-mindedness generally precede the most intolerant and closed-minded actions.

Religious Expression Is a Protected Right Also

Note also the response of the school district when the prayers became public. Kennedy returned to his original private prayers without incident, simply waiting until most people left the field before praying. But then he wrote a letter formally asking for a religious accommodation under the Civil Rights Act of 1964, presumably to clarify the district’s guidance. The school board had assured him he was “free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.” This simple letter made the very act of kneeling into a public scandal.

Like Daniel of old, Kennedy could pray with impunity so long as no one knew. But to pray in the open risked an invitation into the lions’ den. In free societies, formal accommodations for religion can meet everyone’s needs, but formal agreements hinder revolution. Temporary, unspoken accommodations leave room for evolution.

For the Bremerton School District, Kennedy’s public letter was a hostile act. It required a new and sterner edict. For seven years, fans had grown accustomed to seeing players and coaches gather around Kennedy on the 50-yard line. What did the Bremerton administration expect would happen when that practice was suddenly banned?

Did they think the fans wouldn’t notice or care? Did they expect Kennedy to end that practice overnight without a word to the players, coaches, and fans? This is a third problem with revolutionaries: They never seem to anticipate the natural consequences of their edicts.

Now We’re Forbidding Free Association, Too

Kennedy tried to be proactive. He informed the administration, players, and the coaches that he was no longer allowed to pray corporately with them, but would still pray privately. But teams and communities have their own ideas as well. The Bremerton school board had forgotten that in a truly free and voluntary community you cannot coerce one citizen without affecting them all.

To forbid a man from group-praying means also to forbid others from grouping around him for prayer. In forbidding free speech to Kennedy, the district simultaneously forbade free association to the coaches, players, students, and parents who wanted to join.

This does not sit well with free people. Nor did the fans, coaches, and players take this news sitting down. But the district officials could hardly make such a frontal assault on free association. So they simply held Kennedy personally responsible for anyone who prayed with him. This set the stage for the next escalation. As players and fans talked openly about joining Kennedy as soon as he knelt to pray, district enforcers worried they didn’t have the power to stop them. In time, they made yet another new edict.

Presumably for the first time in the history of Bremerton football, parents and fans would be forbidden from coming onto the field after a game. Of course, new rules require new enforcers, and the district enlisted the Bremerton Police Department. But before this new rule could be handed down, people simply watched and prayed.

All Kneeling Together

On October 16, 2015, at the close of the game following his unanswered request for religious accommodation, Kennedy shook hands with the opposing players, waited until most Bremerton players were otherwise engaged, and dropped to a knee to pray. While he was silently praying, “coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside him.” Worse, pictures of this event were published in various media. Apparently, this was too much for the Bremerton School District.

Instead of acknowledging how repeated edicts had escalated the situation, the district blamed Kennedy for engaging “in religious exercise…under the game lights, in BHS-logoed attire.” In only 36 days, kneeling on the 50-yard line had gone from a long-standing custom to behavior that may “be perceived as District endorsement [of a religion].”

That’s what the district said in a court of law, and that’s what the Ninth Circuit Court affirmed in denying Kennedy his appeal and his First Amendment rights. Excuse me, but even from a few states away, I can see that nobody on that field believed they were engaging in some “district-endorsed” activity. Rather, it is quite clear that everyone who joined Kennedy in prayer was knowingly thumbing their nose in contempt at the overreaching Bremerton School District.

Next time you hear “the land of the free and the home of the brave,” it would be a good idea to take a knee and pray that Bremerton’s overreaching is overruled. If it’s not, we may soon see the day when no public employee will be permitted to take a knee in prayer. Maybe for that brief moment immediately following the national anthem, Kaepernick and Kennedy supporters will all be kneeling together.