Kennedy v. Bremerton School District

Table of Contents

Summary article (2023-08-13) in Vox by Ian Millhiser.

Kennedy's Actions after Kennedy v. Bremerton

• 2023-09-07: Kennedy resigns after one game.
• 2023-08-30: Kennedy rehired by Bremerton High School in summer 2023

Notable Items:

• Arc of First Amendment Establishment Clause law.
• Arc of First Amendment Free Speech Clause law.
• First (?) case of school employee engaging in prayer on their own.
• Given the misrepresentations, the case and opinion breaks no new ground. The case did not decide:
  • how the rights of public employees might differ from the rights of private citizens with respect to the free exercise clause (Thomas)
  • what burden an employer must show to burden such exercise. (Thomas)
  • the standard to be applied had Coach Kennedy not had free moments to engage in private activities.
• Overrules Lemon v. Kurtzman (1971) , a precedent concerning state funding of secular instruction in parochial schools. Eight references, excluding footnotes to Lemon in the Majority Opinion.
• Gorsuch's majority opinion's recitiation of the facts of the case leaves out material items prejudicial to his opinion. He acts as an advocate for the plaintiff.
• Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule. A government policy will not qualify as neutral if it is “specifically directed at ... religious practice.” Smith, 494 U. S., at 878. "They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons." Smith [every application of a general rule concerning religious practice is “specifically directed at ... religious practice.”] [Establishment cases are “specifically directed at ... religious practice.”]
• In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. [Was there a previously stated school district policy. Is this an application of that policy]
• Short discussion of Lemon v. Kurtzman (1971) Part IV A (page 21)
• No subsequent decisions in other contexts, including the cases about monuments and legislative meetings on which the Court relies, have so much as questioned the application of this core Establishment Clause concern in the context of public schools.
• Case was rejected Jan 22, 2019. Ginsburg replaced by Barrett Accepted on Jan 14, 2022. See statement respecting the denial of certiorari. Alito, Thomas, Kavanaugh, Gorsuch
• Andrew Koppelman: Religious liberty as a judicial autoimmune disorder: The Supreme Court repudiates its own authority in Kennedy v. Bremerton

Majority Opinion Precedents

• Free Exercise Precedents:
  • Fulton v. City of Philadelphia (2021) Exceptions at the sole discretion of the Commissioner are not analogous to "neutral laws of general applicability".
  • Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) Statutes must not be based on animus.
  • Employment Division v. Smith (1990) Free Exercise excludes "otherwise prohibitable conduct" via "neutral laws of general applicability".
  • Cantwell v. Connecticut (1940)
• Free Speech Precedents:
  • Reed v. Town of Gilbert (2015) Free Speech violated by restrictions on size, number, duration, and location of certain types of signs.
  • Lane v. Franks (2014) Free Speech includes a public employee's truthful, sworn testimony that was compelled by subpoena and not a part of the employee's ordinary job responsibilities.
  • Garcetti v. Ceballos (2006) Public employees do not have a First Amendment protection for speech issued as part of their official duties.
  • Pickering v. Board of Education (1968) Free Speech includes a teacher's Letter(s) to the Editor of local paper regarding school board’s handling of past proposals and allocation of funds favoring athletics over academics.
• Establishment Clause Precedents:
  • Santa Fe Independent School Dist. v. Doe (2000) Establishment precludes student-led, student-initiated prayer at football games authorized by a government policy and taking place on government property at government-sponsored school-related events.
  • School Dist. of Abington Township v. Schempp (1963) Establishment precludes public schools were required to read from the bible at the opening of each school day.
  • Lee v. Weisman (1992) Establishment precludes inclusion of clergy who offer prayers at official public school ceremonies.
  • American Legion v. American Humanist Association (2014) Establishment does not preclude a Christian symbol ... [that] taken on a secular meaning. (Bladensburg Peace Cross)
  • Town of Greece v. Galloway (2014) Establishment does not preclude town meetings began with a prayer given by an invited member of the local clergy.
  • Capitol Square Review and Advisory Board v. Pinette (1995) Establishment does not preclude private installation of religious symbol [on public lands] that "is as fully protected under the Free Speech Clause as secular private expression." (KKK adds Cross to Christmas Tree and Menorah on the state-house plaza. See Lynch v. Donnelly (1984) , Van Orden v. Perry (2005) , and American Legion v. American Humanist Association (2014)
  • Board of Education of Westside Community Schools v. Mergens By and Through Mergens (1990) Establishment does not preclude noncurriculum groups or clubs that include religious discussions.
  • Zorach v. Clauson (1952) Establishment does not preclude students being released from class during the school day to participate in in religious instruction elsewhere.
  • Everson v. Board of Ed. of Ewing (1947) Establishment does not preclude payments to parents for costs of private, parochial school busing. (Payments available to all religions.)

Dissent Precedents:

• Compilation of Establishment Clause Precedent in Part II B of the dissent (check opinion of the court for references to these)
  • Cutter v. Wilkinson (2005)
  • Lee v. Weisman, 505 U. S. 577 (nondenominational general benediction into a graduation ceremony is unconstitutional) See opinion of the court pages 25, 26, 29
  • Edwards v. Aguillard (1987)
  • Wallace v. Jaffree, 472 U. S. 38, 49 (1985) (recognizing the [Establishment] Clause’s incorporation against the States) Not mentioned in opinion of the court.
  • Wallace v. Jaffree, 472 U. S. 38 (mandatory moment of silence for prayer)
  • School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963) (nonmandatory recitation of Bible verses and prayer) See opinion of the court pages 24, 31
  • Engel v. Vitale (1962) , 370 U. S., at 424 (nonmandatory recitation of one-sentence prayer) Not mentioned in opinion of the court.
  • Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000) (prayers in student football games is unconstitutional, even when delivered by students rather than staff and even when students themselves initiated the prayer.) See opinion of the court page 29
  • Walz v. Tax Commission (1970)
  • llinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., (1948)

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.” [Sotomayor dissent]
• In September 2015, a coach from another school’s football team informed BHS’ principal that Kennedy had asked him and his team to join Kennedy in prayer. [Sotomayor dissent]
• The District initiated an inquiry into whether its policy on Religious-Related Activities and Practices had been violated. It learned that, since his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team.
• ... Mr. Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game.
• Mr. Kennedy offered his prayers ... by taking a knee at the 50-yard line and praying “quiet[ly]” for “approximately 30 seconds.”
• The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join.
• Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. [emphasis added]
• In fact, the District Court found that Kennedy himself generated the media coverage by publicizing his dispute with the District in his initial Facebook posting and in his media appearances before the October 16 game. [Sotomayor dissent]
• In an October 28 letter, the District notified Kennedy that it was placing him on paid administrative leave for violating its directives at the October 16, October 23, and October 26 games by kneeling on the field and praying immediately following the games before rejoining the players for postgame talks. [Sotomayor dissent]
• No BHS students appeared to pray on the field after Kennedy’s suspension. [Sotomayor dissent]
• In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply. [Sotomayor dissent] [emphasis added]
• A full recounting of the facts is available below

Procedural History:

• Part II A (page 8)
• After these events, Mr. Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses.
• Indeed, if the District had not suspended him, the court agreed, it might have violated the Constitution’s Establishment Clause.
• On appeal, the Ninth Circuit affirmed.
• Following the Ninth Circuit’s ruling, Mr. Kennedy sought certiorari in this Court. The Court denied the petition.
• But Alito, joined by three other Members of the Court, issued a statement stressing that “denial of certiorari does not signify that the Court necessarily agrees with the deci sion ... below.”
• Part II B (page 9)
• After the case returned to the District Court, the parties engaged in discovery and eventually brought cross-motions for summary judgment.
• At the end of that process, the District Court found that the “ ‘sole reason’ ” for the District’s decision to suspend Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after the October 16, 23, and 26 games.
• The court found that reason persuasive too. ... the District had a compelling interest in prohibiting his postgame prayers, because, once more, had it “allow[ed]” them it “would have violated the Establishment Clause.”
• Part II C (page 9)
• The Ninth Circuit affirmed. March 18, 2021
• It agreed with the District Court that Mr. Kennedy’s speech qualified as government rather than private speech because “his expression on the field—a location that he only had access to because of his employment--during a time when he was generally tasked with communicating with students, was speech as a govern- ment employee.”
• ... the court ruled, the District “had a compelling state interest to avoid violating the Establishment Clause,” and its suspension was narrowly tailored to vindicate that interest.
• Later, the Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges. Among other things, the dissenters argued that the panel erred by holding that a failure to discipline Mr. Kennedy would have led the District to violate the Establishment Clause. Several dissenters noted that the panel’s analysis rested on Lemon v. Kurtzman (1971) 403 U. S. 602 (1971), and its progeny for the proposition that the Establishment Clause is implicated whenever a hypothetical reasonable observer could conclude the government endorses religion.
• These dissenters argued that this Court has long since abandoned that “ahistorical, atextual” approach to discerning “Establishment Clause violations”; they observed that other courts around the country have followed suit by renouncing it too; and they contended that the panel should have likewise “recognized Lemon’s demise and wisely left it dead.”

Rationale

Gorsuch Majority Opinion (Roberts, Thomas, Alito, Barrett. Kavanaugh but for III-B [Free Speech Clause].)

• Kennedy engaged in solitary, quiet, brief, unobstrusive, sincere religious practice of praying on the fifty yard line on October 16, 23, and 26.
• For these actions, he was placed on paid administrative leave and prohibited from participating in football program activities.
• Kennedy sued the School District for violating his rights to Free Exercise and to Free Speech.
• [Free Exercise]
• Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Smith at 879–881. (12)
• That Mr. Kennedy has discharged his burdens is effectively undisputed. No one questions that he seeks to engage in a sincerely motivated religious exercise. (13)
• Nor does anyone question that, ... , the District failed to act pursuant to a neutral and generally applicable rule. A government policy will not qualify as neutral if it is “specifically directed at ... religious practice.” Smith, 494 U. S., at 878. (13)
• [Free Speech]
• Both sides ask us to employ at least certain aspects of this Pickering–Garcetti framework to resolve Mr. Kennedy’s free speech claim. (16)
• When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. Lane, 573 U. S., at 240. (17)
• Ultimately, however, it does not matter which standard we apply. The District cannot sustain its burden under any of them. (20)
• [No Establishment Clause Concern]
• ... Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. (25)
• A full description of the rationale is available below

Thomas Concurrance

• I write separately to emphasize that the Court’s opinion does not resolve two issues related to Kennedy’s free-exercise claim.
• First, the Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public.
• Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee’s [Free Speech Clause based] religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny.
• A government employer’s burden therefore might differ depending on which First Amendment guarantee a public employee invokes.

Alito Concurrance

• Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities.
• When he engaged in this expression, he acted in a purely private capacity.
• The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed.

Sotomayor Dissent (Breyer, Kagan)

• Kennedy led the players of both teams in public, demonstrative, religious practice immediately upon conclusion of each football game until stopped by the School District within days of its receiving notification of his actions.
• Since Engel v. Vitale (1962) 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. (2)
• The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. The Court ignores this history.
• Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. (13)
• Here, the District’s directive prohibiting Kennedy’s demonstrative speech at the 50-yard line was narrowly tailored to avoid an Establishment Clause violation. (22)
• For decades, the Court has recognized that, in determining whether a school has violated the Establishment Clause, “one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the [practice], would perceive it as a state endorsement of prayer in public schools.” Santa Fe, 530 U. S., at 308
• The question before the Court ... is whether permitting Kennedy to continue a demonstrative prayer practice at the center of the football field after years of inappropriately leading students in prayer in the same spot, at that same time, and in the same manner, which led students to feel compelled to join him, violates the Establishment Clause. It does. (33)

• Since Engel v. Vitale (1962) 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. [emphasis added] [Establishment Clause case]
• Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.
• The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. See Carson v. Makin, 596 U. S. ___, ___ (2022) (Breyer dissenting)
• The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. The Court ignores this history.
• In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test.
• Part I A Facts Omitted by Majority -- (page 2)
• His duties encompassed “supervising student activities immediately following the completion of the game” until the students were released to their parents or otherwise allowed to leave.
• Finally, District coaches had to “[a]dhere to [District] policies and administrative regulations” more generally. at 30–31.
• As relevant here, the District’s policy on “Religious-Related Activities and Practices” provided that “[s]chool staff shall neither encourage or discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity” and that “[r]eligious services, programs or assemblies shall not be conducted in school facilities during school hours or in connection with any school sponsored or school related activity.”
• Part I B -- Further Details and Timeline of Kennedy's Behavior (page 4)
• In September 2015, a coach from another school’s football team informed BHS’ principal that Kennedy had asked him and his team to join Kennedy in prayer.
• The District initiated an inquiry into whether its policy on Religious-Related Activities and Practices had been violated. It learned that, since his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team.
• No BHS students appeared to pray on the field after Kennedy’s suspension.
• In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.
• Part I C -- Procedural History (page 11)
• Kennedy then filed suit. He contended, as relevant, that the District violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.
• The court concluded that Kennedy had “chose[n] a time and event,” the October 16 homecoming game, that was “a big deal” for students, and then “used that opportunity to convey his religious views” in a manner a reasonable observer would have seen as a “public employee ... leading an orchestrated session of faith.”
• The court noted that he had in fact refused “an accommodation permitting him to pray ... after the stadium had emptied,” “indicat[ing] that it is essential that his speech be delivered in the presence of students and spectators.”
• This Court denied certiorari. [Jan 22 2019 See statement respecting the denial of certiorari. Alito, Thomas, Kavanaugh, Gorsuch]
• Following discovery, the District Court granted summary judgment to the District.
• The court concluded that Kennedy’s 50-yard-line prayers were not entitled to protection under the Free Speech Clause because his speech was made. [emphasis added] in his capacity as a public employee, not as a private citizen.
• The District Court further found that players had reported “feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time,” and that the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.”
• The court rejected Kennedy’s free exercise claim, finding the District’s directive narrowly tailored to its Establishment Clause concerns and citing Kennedy’s refusal to cooperate in finding an accommodation that would be acceptable to him. [emphasis added]
• The Court of Appeals denied rehearing en banc, and this Court granted certiorari. [Jan 14 2022]
• Part II -- Establishment Clause, Free Exercise Claim and Free Speech Claim (page 13)
• Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.
• Part II A -- Establishment Clause Precedents (page 14)
• Indeed, “[t]he Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Edwards v. Aguillard, 482 U. S. 578, 583–584 (1987)
• First, government neutrality toward religion is particularly important in the public school context given the role public schools play in our society. Accordingly, the Establishment Clause “proscribes public schools from ‘conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred’ ” or otherwise endorsing religious beliefs. Lee [v. Weisman], 505 U. S., at 604–605 (Blackmun, J., concurring) (emphasis deleted).
• Second, schools face a higher risk of unconstitutionally “coerc[ing] ... support or participat[ion] in religion or its exercise” than other government entities. Id., at 587 (opinion of the Court) Accordingly, this Court has emphasized that “the State may not, consistent with the Establishment Clause, place primary and secondary school children” in the dilemma of choosing between “participating, with all that implies, or protesting” a religious exercise in a public school. Lee, 505 U. S., at 593.
• Part II B -- Details of Establishment Clause Violation (page 16)
• Under these precedents, the Establishment Clause violation at hand is clear.
• Kennedy was on the job as a school official “on government property” when he incorporated a public, demonstrative prayer into “government-sponsored school-related events” as a regularly scheduled feature of those events. Santa Fe [Independent School Dist. v. Doe, 530 U. S. 290 (2000)] at 302.
• For students and community members at the game, Coach Kennedy was the face and the voice of the District during football games.
• Kennedy spoke from the playing field, which was accessible only to students and school employees, not to the general public. ... the football game events had not [ended]; ... postgame responsibilities were what placed Kennedy on the 50-yard line in the first place; ... he invited ... at a predictable time after each game could only be viewed ... occurring “with the approval of the school administration.” [emphasis added]
• Kennedy’s postgame responsibilities were what placed Kennedy on the 50-yard line in the first place; that was, after all, where he met the opposing team to shake hands after the game.
• Finally, Kennedy stresses that he never formally required students to join him in his prayers. But existing precedents do not require coercion to be explicit, particularly when children are involved.
• Part II C -- Free Speech Claim Refuted (page 20)
• Under these [This Court’s settled] precedents, the District’s interest in avoiding an Establishment Clause violation justified both its time and place restrictions on Kennedy’s speech and his exercise of religion.
• First, as to Kennedy’s free speech claim, Kennedy “accept[ed] certain limitations” on his freedom of speech when he accepted government employment. Garcetti v. Ceballos, 547 U. S. 410, 418 (2006).
• ... even assuming that Kennedy’s speech was in his capacity as a private citizen, the District’s responsibilities under the Establishment Clause provided “adequate justification” for restricting it. Garcetti, 547 U. S., at 418.
• Similarly, Kennedy’s free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts.
• Here, the District’s directive prohibiting Kennedy’s demonstrative speech at the 50-yard line was narrowly tailored to avoid an Establishment Clause violation.
• Because the District’s valid Establishment Clause concerns satisfy strict scrutiny, Kennedy’s free exercise claim fails as well.
• Part III -- (page 22)
• Despite the overwhelming precedents establishing that school officials leading prayer violates the Establishment Clause, the Court today holds that Kennedy’s midfield prayer practice did not violate the Establishment Clause. This decision rests on an erroneous understanding of the Religion Clauses.
• Part III A -- Tension between Establishment, Free Speech and Free Exercise (page 23)
• The First Amendment protects speech “by ensuring its full expression even when the government participates.” Lee, 505 U. S., at 591.
• Its “method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse,” however, based on the understanding that “the government is not a prime participant” in “religious debate or expression,” whereas government is the “object of some of our most important speech.” Lee, 505 U. S., at 591.
• Second, the Court contends that the lower courts erred by introducing a false tension between the Free Exercise and Establishment Clauses. The Court, however, has long recognized that these two Clauses, while “express[ing] complementary values,” “often exert conflicting pressures.” Cutter, 544 U. S., at 719. See also Locke v. Davey, 540 U. S. 712, 718 (2004) (describing the Clauses as “frequently in tension”).
• Part III B -- Appropriateness of Lemon (page 25)
• For decades, the Court has recognized that, in determining whether a school has violated the Establishment Clause, “one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the [practice], would perceive it as a state endorsement of prayer in public schools.” Santa Fe, 530 U. S., at 308 (internal quotation marks omitted). The Court now says for the first time that endorsement simply does not matter, and completely repudiates the test established in Lemon, 403 U. S. 602. Ante, at 22–24. Both of these moves are erroneous and, despite the Court’s assurances, novel.
• No subsequent decisions in other contexts, including the cases about monuments and legislative meetings on which the Court relies, have so much as questioned the application of this core Establishment Clause concern in the context of public schools.
• All the Court in American Legion ultimately held, however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts. 588 U. S., at ___ (slip op., at 16); see also at ___– ___ (slip op., at 16–21) (discussing at some length why the Lemon test was a poor fit for those circumstances). The only categorical rejection of Lemon in American Legion appeared in separate writings. [Kavanaugh, Thomas and Gorsuch concurrances]
• The Court now goes much further, overruling Lemon entirely and in all contexts. [emphasis added]
• Lemon properly concluded that precedent generally directed consideration of whether the government action had a “secular legislative purpose,” whether its “principal or primary effect must be one that neither advances nor inhibits religion,” and whether in practice it “foster[s] ‘an excessive government entanglement with religion.’ ”
• Part III C -- Broken Reed of History and Tradition "Test" (page 29)
• Upon overruling one “grand unified theory,” the Court introduces another: It holds that courts must interpret whether an Establishment Clause violation has occurred mainly “by ‘reference to historical practices and understandings.’ ”
• The problems with elevating history and tradition over purpose and precedent are well documented. See [dissents in] Dobbs, ... Bruen, ... Brown v. Davenport ....
• Part III D -- (page 30)
• The Court’s suggestion that coercion must be “direc[t]” to be cognizable under the Establishment Clause is contrary to long-established precedent.
• Today’s Court quotes the Lee Court’s remark that enduring others’ speech is “ ‘part of learning how to live in a pluralistic society.’ ” Ante, at 26 (quoting Lee, 505 U. S., at 590). The Lee Court, however, expressly concluded, in the very same paragraph, that “[t]his argument cannot prevail” in the school-prayer context because the notion that being subject to a “brief ” prayer in school is acceptable “overlooks a fundamental dynamic of the Constitution”: its “specific prohibition on . . . state intervention in religious affairs.” Id., at 591; see also id., at 594
• In addition, despite the direct record evidence that students felt coerced to participate in Kennedy’s prayers, the Court nonetheless concludes that coercion was not present in any event because “Kennedy did not seek to direct any prayers to students or require anyone else to participate.”
• In any event, the Court makes this assertion only by drawing a bright line between Kennedy’s yearslong practice of leading student prayers, which the Court does not defend, and Kennedy’s final three prayers, which BHS students did not join, but student peers from the other teams did.
• The question before the Court ... is whether permitting Kennedy to continue a demonstrative prayer practice at the center of the football field after years of inappropriately leading students in prayer in the same spot, at that same time, and in the same manner, which led students to feel compelled to join him, violates the Establishment Clause. It does. [emphasis added]
• The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (Sotomayor dissenting) (slip op., at 26).
• Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.

Full Recounting of Facts

• Part I A (page 2)
• ... Mr. Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game.
• Mr. Kennedy offered his prayers ... by taking a knee at the 50-yard line and praying “quiet[ly]” for “approximately 30 seconds.”
• The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join.
• Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. [emphasis added]
• Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated Mr. Kennedy’s tenure.
• Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity.”
• It [Bremerton School District] ... first learned of them only in September 2015 .... At that point, the District reacted quickly. (3)
• On September 17, the superintendent sent Mr. Kennedy a letter. In it, the superintendent identified “two problematic practices” in which Mr. Kennedy had engaged.
• First, Mr. Kennedy had provided “inspirational talk[s]” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of ... game[s].” [intermixing of prayer with duties]
• Second, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated [his] involvement with the program.”
• It instructed Mr. Kennedy to avoid any motivational “talks with students” that “include[d] religious expression, including prayer,” and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or supervis[ing]” any prayers of students, which students remained free to “engage in.” [separate duties from prayers]
• The District also explained that any religious activity on Mr. Kennedy’s part must be “nondemonstrative (i.e., not outwardly discernible as religious activity)” if “students are also engaged in reli- gious conduct” in order to “avoid the perception of endorsement.”
• In offering these directives, the District appealed to what it called a “direct tension between” the “Establishment Clause” and “a school employee’s [right to] free[ly] exercise” his religion. To resolve that “tension,” the District explained, an employee’s free exercise rights “must yield so far as necessary to avoid school endorsement of religious activities.”
• After receiving the District’s September 17 letter, Mr. Kennedy ended the tradition, predating him, of offering locker-room prayers. [compliance]
• He also ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field.
• On October 14, through counsel, Mr. Kennedy sent a letter to school officials informing them that, because of his “sincerely-held religious beliefs,” he felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. (4) [Why must it be at midfield as opposed to another location, perhaps the coaches area on the sideline. Time, Place, and Manner]
• He asked the District to allow him to continue that “private religious expression” alone. [emphasis added]
• Mr. Kennedy emphasized that he sought only the opportunity to “wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer.” [emphasis added]
• [October 16] It forbade Mr. Kennedy from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse ... prayer ... while he is on duty as a District-paid coach.” The District did so because it judged that anything less would lead it to violate the Establishment Clause. (5)
• Part I B (page 5)
• In fact, the District Court found that Kennedy himself generated the media coverage by publicizing his dispute with the District in his initial Facebook posting and in his media appearances before the October 16 game. [Sotomayor dissent]
• After receiving this letter, Mr. Kennedy offered a brief prayer following the October 16 game.
• Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer.
• On October 23, shortly before that evening’s game, the District wrote Mr. Kennedy again. The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” (6)
• After the October 23 game ended, Mr. Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.”
• Part I C (page 7)
• Shortly after the October 26 game, the District placed Mr. Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in ... football program activities.”
• In an October 28 letter, the District notified Kennedy that it was placing him on paid administrative leave for violating its directives at the October 16, October 23, and October 26 games by kneeling on the field and praying immediately following the games before rejoining the players for postgame talks. [Sotomayor dissent]
• No BHS students appeared to pray on the field after Kennedy’s suspension. [Sotomayor dissent]
• The evaluation advised against rehiring Mr. Kennedy on the grounds that he “ ‘failed to follow district policy’ ” regarding religious expression and “ ‘failed to supervise student-athletes after games.’ ”
• In Kennedy’s annual review, the head coach of the varsity team recommended Kennedy not be rehired because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district,” and “failed to supervise student-athletes after games due to his interactions with media and community” members. The head coach himself also resigned after 11 years in that position, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply. [Sotomayor dissent]
• Mr. Kennedy did not return for the next season.
• A list of the material facts is available above

Gorsuch Majority Full Argument

• Part I -- Full Recounting of Facts (page 2)
• Part II -- Procedural History (page 8)
• Part III -- Applicable Precedents (page 11)
• Now before us, Mr. Kennedy renews his argument that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment.
• Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities. See, e.g., Widmar v. Vincent, 454 U. S. 263, 269, n. 6 (1981); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995).
• Under this Court’s precedents, a plaintiff bears certain burdens to demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries these burdens, the focus then shifts to the defendant to show that its actions were nonetheless justified and tailored consistent with the demands of our case law. See, e.g., Fulton v. Philadelphia, 593 U. S. ___, ___–___, ___ (2021)
• Part III A -- Free Exercise Clause (page 12)
• The [Free Exercise] Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through “the performance of (or abstention from) physical acts.” Employment Division v. Smith (1990) 494 U. S. 872, 877 (1990). [Smith held there are pure and hybrid cases. Hybrid cases involve "otherwise prohibitable conduct" via "neutral laws of general applicability", such laws are not "subject to compelling interest analysis"]
• Under this Court’s precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Id., at 879– 881.
• Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U. S., at 546.
• That Mr. Kennedy has discharged his burdens is effectively undisputed. No one questions that he seeks to engage in a sincerely motivated religious exercise. (13)
• [Misrepresentation to frame case as Free Exercise by Kennedy, adopted by Gorsuch: "private, personal prayer"; "does not involve leading prayers with [some portion of] the team"; "praying quietly without his players after three games in October 2015"] (13)
• Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to a neutral and generally applicable rule. A government policy will not qualify as neutral if it is “specifically directed at ... religious practice.” Smith, 494 U. S., at 878. "They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons." Smith [every application of a general rule concerning religious practice is “specifically directed at ... religious practice.”] ... Lukumi, 508 U. S., at 533; [ignores leading students in prayer] [Establishment cases are “specifically directed at ... religious practice.”]
• A government policy will fail the general applicability requirement if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way,” or if it provides “a mechanism for individualized exemptions.” Fulton, 593 U. S., at ___ (slip op., at 6). [ignores leading students in prayer]
• Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny. See Lukumi, 508 U. S., at 546. (14) [ignores leading students in prayer]
• In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. [Was there a previously stated school district policy. Is this an application of that policy]
• ... the District conceded before the Ninth Circuit that its challenged directives were not “generally applicable.”
• Part III B -- Free Speech Clause (page 15)
• When it comes to Mr. Kennedy’s free speech claim, our precedents remind us that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District (1969) 393 U. S. 503, 506 (1969); see also Lane v. Franks, 573 U. S. 228, 231 (2014).
• To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), Garcetti, 547 U. S. 410, and related cases suggest proceeding in two steps.
• The first step involves a threshold inquiry into the nature of the speech at issue. If a public employee speaks “pursuant to [his or her] official duties,” this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline because that kind of speech is--for constitutional purposes at least--the government’s own speech.
• [if speech as private citizen] At this second step, our cases suggest that courts should attempt to engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Among other things, courts at this second step have sometimes considered whether an employee’s speech interests are outweighed by “ ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ”
• Both sides ask us to employ at least certain aspects of this Pickering–Garcetti framework to resolve Mr. Kennedy’s free speech claim.
• At the first step of the Pickering–Garcetti inquiry, the parties’ disagreement thus turns out to center on one question alone: Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?
• ... the Court explained, the “critical question ... is whether the speech [testimony under oath in two federal criminal trials] at issue is itself ordinarily within the scope of an employee’s duties.” Lane v. Franks (17)
• When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. Lane, 573 U. S., at 240.
• Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. Garcetti, 547 U. S., at 421. [while performing his duties engaged in leading prayer service]
• [Misrepresentation] ... Mr. Kennedy offered his prayers when students were engaged in other activities .... (18)
• Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play. Garcetti, 547 U. S., at 421.
• Of course, acknowledging that Mr. Kennedy’s prayers represented his own private speech does not end the matter. So far, we have recognized only that Mr. Kennedy has carried his threshold burden. Under the Pickering–Garcetti framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee’s private speech on a matter of public con- cern. See Lane, 573 U. S., at 236, 242.
• Part IV -- Governmental Interest (page 19)
• Under the Free Exercise Clause, a government entity normally must satisfy at least “strict scrutiny,” showing that its restrictions on the plaintiff ’s protected rights serve a compelling interest and are narrowly tailored to that end. See Lukumi, 508 U. S., at 533;
• A similar standard generally obtains under the Free Speech Clause. See Reed [v. Town of Gilbert], 576 U. S., at 171
• The District, however, asks us to apply to Mr. Kennedy’s claims the more lenient second-step Pickering–Garcetti test, or alternatively intermediate scrutiny.
• Part IV A -- No Establishment Clause Concern (page 20)
• As we have seen, the District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause.
• It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. See Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13, 15 (1947).
• Because a reasonable observer could (mistakenly) infer that by allowing the prayer the District endorsed Mr. Kennedy’s message, the District felt it had to act, even if that meant suppressing otherwise protected First Amendment activities. (21)
• [Gorsuch cites Capitol Square Review and Advisory Board v. Pinette (1995) which allowed a display of a cross alongside a christmas tree and menorah ala Lynch v. Donnelly (1984)
• What the District and the Ninth Circuit overlooked, ... this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion v. American Humanist Association (2014) , 588 U. S., at ___–___ (plurality opinion) (slip op., at 12–13); (22)
• In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ” Town of Greece, 572 U. S., at 576; see also American Legion, 588 U. S., at ___ (plurality opinion) (slip op., at 25). “ ‘[T]he line’ ” that courts and governments “must draw between the permissible and the impermissible” has to “ ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’ ” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) ["What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice." and Part V Section A "The Conflict Between Establishment and Free Exercise" ] [History supports prayer at the start of deliberations among peers (legislatures), not as part of instruction of students.] [Establishment distinction between prayer preceding legislative/deliberative meetings of adults and education of minors.] [Establishment distinction between prayer preceding legislative/deliberative meetings of adults and education of minors.]
• An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.” 572 U. S., at 575; see American Legion, 588 U. S., at ___ (plurality opinion) (slip op., at 25); .... (24) [Full Quote: While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example. Marsh v. Chambers, Town of Greece
• Part IV B -- No Coercion (page 24)
• ... the District offers a backup argument ... Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray. (24)
• But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. [emphasis added]
• The District did not discipline Mr. Kennedy for engaging in prayer while presenting locker-room speeches to students. [no need. as stated earlier: "After receiving the District’s September 17 letter, Mr. Kennedy ended the tradition, predating him, of offering locker-room prayers."
• ... the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students. (28)
• What was clear ... —where there is no evidence anyone sought to persuade or force students to participate, and there is no formal school program accommodating the religious activity at issue. (29)
• Part IV C -- Dismissal of Constitutionality Concerns (page 30)
• In the end, the District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties—and then develop some explanation why one of these Clauses in the First Amendment should “ ‘trum[p]’ ” the other two.
• In truth, there is no conflict between the constitutional commands before us. [See School District of Abington Township, Pennsylvania v. Schempp page 296 "A. The Conflict Between Establishment and Free Exercise." noting provision for chaplains in the military and in prisons as constitutional "Since government has deprived such persons of the opportunity to practice their faith at places of their choice ...."]
• There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. Schempp, 374 U. S., at 308 (Goldberg, J., concurring). [Goldberg: "The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exer- cises or in the favoring of religion as to have meaningful and practical impact." Dangers (Goldberg previous page of Schempp: "Bible reading in the public schools, during and as part of the curricular day, involving young impressionable children whose school attendance is statutorily compelled, and utilizing the prestige, power, and influence of school administration, staff, and authority, cannot realistically be termed simply accommodation, and must fall within the interdiction of the First Amendment."
• Part V -- Conclusion (page 31)
• And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. (31)
• The Constitution neither mandates nor tolerates that kind of discrimination. (32)
• The judgment of the Court of Appeals is Reversed.
• The core of the rationale is available above

Levels of Generality

• Private, individual, religious speech carried out in public. (Cantwell v. Connecticut)
• Privately funded and operated institutions.
• Publically funded institutions. (direct, indirect, tax-expenditure: state colleges, all colleges, churches, etc.) (Everson v. BoE, Walz v. Tax Commission, Locke v. Davey, Carson v. Makin)
• Publically operated and funded institutions, incidental religious use. (Shurtleff v. Boston “Christian flag.” raising at Boston City Hall as one of many flown at distinct times.
• Publically operated and funded institutions, non-educational. (courts, legislatures, libraries, etc.) (Town of Greece v. Galloway, etc.)
• Publically operated and funded institutions, educational, after school, optional attendance, studend led. (Westside v. Mergens)
• Publically operated and funded institutions, educational, optional attendance, non-school instructor led. (McCollum v. BoE)
• Publically operated and funded institutions, educational, optional attendance, student led. (Engel v. Vitale)
• Publically operated and funded institutions, educational, coerced attendance, religious prayer. (Abington v. Schempp, Wallace v. Jaffree)
• Publically operated and funded institutions, educational, coerced attendance, religious services. (military academies till 1972: Anderson v. Laird 466 F.2d 283 (D.C. Cir. 1972) (per curiam))
• Publically operated and funded institutions, religious tests: Test Acts and Oaths required of state officeholders. (Delaware, Georgia, Maryland, New Jersey, North Carolina, Pennsylvania, South Carolina, Vermont Constitutions adopted in the wake of the American Revolution)

Facts

Ninth Circuit

Majority Opinion

• sincerely motivated religious exercise (12)
• giving “thanks through prayer” briefly (12)
• by himself (12)
• “on the playing field” (12)
• willing to "wai[t] until the game is over and the players have left the field” (12)
• does not involve leading prayers with the team or before any other captive audience. (12)
• voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students. (13)

Dissent

Constitutional Considerations

Ninth Circuit

Majority Opinion

Dissent

Pickering-Garcetti

Change(s) to Constitutional Law

What the Court Did

Why?

Slides

Context

Kennedy v. Bremerton

Case Map

• No. Move on to Free Speech.
• Yes. Burden shifts to respondent (Bremerton) "to show that its actions were nonetheless justified and tailored consistent with the demands of our case law." Lukumi (11)

• 'employee speaks “pursuant to [his or her] official duties,” ' not protected speech (15)
• 'employee “speaks as a citizen addressing a matter of public concern," ' may be protected (15)
• They agree that Mr. Kennedy’s speech implicates a matter of public concern. (16)

Questions