Table of Contents

Notable Items
Issue Before the Court
Material Facts

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

Kennedy's Actions after Kennedy v. Bremerton

Notable Items:

Majority Opinion Precedents

Dissent Precedents:

Petitioner: Joseph Kennedy
Respondent: Bremerton School District
Venue: Supreme Court of the United States
Opinion of the Court: Kennedy-BremertonSchoolDistrict (2022)
Ninth Circuit Opinion (recounting of facts and details of "Pickering test".
District Court has ordered that Plaintiff Kennedy’s Motion for Summary Judgment [63] is DENIED, and Defendant Bremerton School District’s Motion for Summary Judgment [70] is GRANTED. Court documents.

Issue(s) Before the Court:

Per Kennedy opinion: [Free Exercise Clause and Free Speech Clause]
Per Sotomayor dissent: [Establishment Clause] 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.

Petitioner's Claim(s):

... that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment.

Respondent's Claim(s):

... Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny.
... 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.

Holding(s) and Disposition:

Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression. [How does this differ from precedent?]
Disposition: 991 F. 3d 1004, reversed.

Material Facts:

Note: Majority opinion does not include a number of material facts highlighted in the dissent.

Procedural History:


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

Thomas Concurrance

Alito Concurrance

Sotomayor Dissent (Breyer, Kagan)

In Brief: In Full:

Full Recounting of Facts

Gorsuch Majority Full Argument

Levels of Generality

Speech cases -- spoken words and personal acts.
Not public funding involving parochial schools: Everson v. BoE, Walz v. Tax Commission, Lemon v. Kurtzman, Locke v. Davey, Carson v. Makin
Not displays or installations: Lynch v. Donnelly, Van Orden v. Perry, and American Legion v. American Humanist Association

At the most general level Free Exercise/Free Speech overrides the Establishment Clause.
At the most specific level the Establishment Clause overrides Free Exercise/Free Speech?
At which level of generality does the Establishment Clause overrides Free Exercise/Free Speech?


Ninth Circuit

Majority Opinion


Constitutional Considerations

Ninth Circuit

Establishment Clause

Majority Opinion

Free Exercise and Free Speech Clauses


Establishment Clause
Establishment Infringement?


Change(s) to Constitutional Law

What the Court Did




Free Speech/Free Exercise v. Establishment
Funding v. Live Speech
Adults v. Minors
Deliberative/Legislative v. Educational
Levels of Generalization

Kennedy v. Bremerton

Facts: Choose one. Ninth Circuit, Majority Opinion, Dissent
What type of case? Free Speech? Free Exercise? Establishment? Depends upon the facts?

Case Map

Free Exercise Infringement? (12)
"Under this Court’s precedents, a plaintiff (Kennedy) bears certain burdens to demonstrate an infringement of his rights under the Free Exercise" (11)
"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 (12)
"In this case, the District’s challenged policies were neither neutral nor generally applicable." (14)
Kennedy wins if this is a Free Exercise case.
Free Speech Infringement?
Enter Pickering-Garcetti Test
Gorsuch considers items 1) "public concern" and 2) "private citizen or public employee speech". Skipping item 4) "adequate justification for treating the employee differently" which, along with item 2), is the basis of the Ninth Circuit decision. Holding


How does the holding in the instant case differ from precedent?