KENNEDY v. BREMERTON SCHOOL DIST.SUPREME COURT OF THE UNITED STATES
certiorari to the united states court of appeals for the ninth circuitNo.
21–418. Argued April 25, 2022—Decided June 27, 2022
Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Barrett, JJ., joined, and in which Kavanaugh, J., joined, except as to Part III–B. Thomas , J., and Alito, J., filed concurring opinions. Sotomayor, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined. Joseph Kennedy lost
his job as a high school football coach because he
knelt at midfield after games to offer a quiet prayer
of thanks. Mr. Kennedy prayed during a period when
school employees were free to speak with a friend,
call for a reservation at a restaurant, check email,
or attend to other personal matters. He offered his
prayers quietly while his students were otherwise
occupied. Still, the Bremerton School District
disciplined him anyway. It did so because it thought
anything less could lead a reasonable observer to
conclude (mistakenly) that it endorsed Mr. Kennedy’s
religious beliefs. That reasoning was misguided. Both
the Free Exercise and Free Speech Clauses of the First
Amendment protect expressions like Mr. Kennedy’s. Nor
does a proper understanding of the Amendment’s
Establishment Clause require the government to single
out private religious speech for special disfavor. The
Constitution and the best of our traditions counsel
mutual respect and tolerance, not censorship and
suppression, for religious and nonreligious views
alike.
I Joseph
Kennedy began working as a football coach at
Bremerton High School in 2008 after nearly two
decades of service in the Marine Corps. Like many
other football players and coaches across the
country, Mr. Kennedy made it a practice to give
“thanks through prayer on the playing field” at the
conclusion of each game. In his prayers, Mr. Kennedy
sought to express gratitude for “what the players
had accomplished and for the opportunity to be part
of their lives through the game of football.” Mr.
Kennedy offered his prayers after the players and
coaches had shaken hands, by taking a knee at the
50-yard line and praying “quiet[ly]” for
“approximately 30 seconds.” Initially, Mr.
Kennedy prayed on his own. But over time,
some players asked whether they could pray alongside
him. Mr. Kennedy responded by saying, “ ‘This
is a free country. You can do what you want.’ ”
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. Other times Mr.
Kennedy still prayed alone. Eventually, Mr. Kennedy
began incorporating short motivational speeches with
his prayer when others were present.
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.” In
particular, he “never pressured or encouraged any
student to join” his postgame midfield prayers. For over seven years, no one complained to the Bremerton School District (District) about these practices. It seems the District’s superintendent first learned of them only in September 2015, after an employee from another school commented positively on the school’s practices to Bremerton’s principal. At that point, the District reacted quickly. 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].” Second, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated [his] involvement with the program.” The District explained that it sought to establish “clear parameters” “going forward.” 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.” Id., at 44. 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 religious conduct” in order to “avoid the perception of endorsement.” Id., at 45. 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. He also ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field. See ibid. Mr. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field postgame prayer. Driving home after a game, however, Mr. Kennedy felt upset that he had “broken [his] commitment to God” by not offering his own prayer, so he turned his car around and returned to the field. By that point, everyone had left the stadium, and he walked to the 50-yard line and knelt to say a brief prayer of thanks. 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. He asked the District to allow him to continue that “private religious expression” alone. Id., at 62. Consistent with the District’s policy, see id., at 48, Mr. Kennedy explained that he “neither requests, encourages, nor discourages students from participating in” these prayers. 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.” He “told everybody” that it would be acceptable to him to pray “when the kids went away from [him].” He later clarified that this meant he was even willing to say his “prayer while the players were walking to the locker room” or “bus,” and then catch up with his team. However, Mr. Kennedy objected to the logical implication of the District’s September 17 letter, which he understood as banning him “from bowing his head” in the vicinity of students, and as requiring him to “flee the scene if students voluntarily [came] to the same area” where he was praying. After all, District policy prohibited him from “discourag[ing]” independent student decisions to pray. On October 16, shortly before the game that day, the District responded with another letter. See id., at 76. The District acknowledged that Mr. Kennedy “ha[d] complied” with the “directives” in its September 17 letter. Yet instead of accommodating Mr. Kennedy’s request to offer a brief prayer on the field while students were busy with other activities—whether heading to the locker room, boarding the bus, or perhaps singing the school fight song—the District issued an ultimatum. 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. B After
receiving this letter, Mr. Kennedy offered a brief
prayer following the October 16 game. When he bowed
his head at midfield after the game, “most
[Bremerton] players were . . . engaged in
the traditional singing of the school fight song to
the audience.” 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. This event spurred
media coverage of Mr. Kennedy’s dilemma and a public
response from the District. The District placed
robocalls to parents to inform them that public
access to the field is forbidden; it posted signs
and made announcements at games saying the same
thing; and it had the Bremerton Police secure the
field in future games. Subsequently, the District
superintendent explained in an October 20 email to
the leader of a state association of school
administrators that “the coach moved on from leading
prayer with kids, to taking a silent prayer at the
50 yard line.” The official with whom the
superintendent corresponded acknowledged that
the “use of a silent prayer changes the
equation a bit.” On October 21, the
superintendent further observed to a state official
that “[t]he issue is quickly changing as it has
shifted from leading prayer with student athletes,
to a coaches [sic] right to conduct” his
own prayer “on the 50 yard line.” On October 23, shortly before that evening’s game, the District wrote Mr. Kennedy again. It expressed “appreciation” for his “efforts to comply” with the District’s directives, including avoiding “on-the-job prayer with players in the . . . football program, both in the locker room prior to games as well as on the field immediately following games.” The letter also admitted that, during Mr. Kennedy’s recent October 16 postgame prayer, his students were otherwise engaged and not praying with him, and that his prayer was “fleeting.” Still, the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.” 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.” 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.” The superintendent informed the District’s board that this prayer “moved closer to what we want,” but nevertheless remained “unconstitutional.” After the final relevant football game on October 26, Mr. Kennedy again knelt alone to offer a brief prayer as the players engaged in postgame traditionsWhile he was praying, other adults gathered around him on the field. Later, Mr. Kennedy rejoined his players for a postgame talk, after they had finished singing the school fight song. 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 a letter explaining the reasons for this
disciplinary action, the superintendent criticized
Mr. Kennedy for engaging in “public and
demonstrative religious conduct while still on duty
as an assistant coach” by offering a prayer
following the games on October 16, 23, and 26. The
letter did not allege that Mr. Kennedy performed
these prayers with students, and it acknowledged
that his prayers took place while students were
engaged in unrelated postgame activities.
Additionally, the letter faulted Mr. Kennedy for not
being willing to pray behind closed doors. In an October 28 Q&A document provided to the public, the District admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.” The Q&A also acknowledged that Mr. Kennedy “ha[d] complied” with the District’s instruction to refrain from his “prior practices of leading players in a pre-game prayer in the locker room or leading players in a post-game prayer immediately following games.” But the Q&A asserted that the District could not allow Mr. Kennedy to “engage in a public religious display.” Otherwise, the District would “violat[e] the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “district [as] endors[ing] . . . religion.” While Mr. Kennedy received “uniformly positive evaluations” every other year of his coaching career, after the 2015 season ended in November, the District gave him a poor performance evaluation. 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.’ ” Mr. Kennedy did not return for the next season. IIAfter 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... IIINow 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. These Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities. That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent. 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. We begin by examining whether Mr. Kennedy has discharged his burdens, first under the Free Exercise Clause, then under the Free Speech Clause. 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.” 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. That Mr.
Kennedy has discharged his burdens is effectively
undisputed. No one questions that he seeks to engage
in a sincerely motivated religious exercise. The
exercise in question involves, as Mr. Kennedy has
put it, giving “thanks through prayer” briefly and
by himself “on the playing field” at the conclusion
of each game he coaches.. . . 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” or if it provides “a mechanism for
individualized exemptions.” Failing either the
neutrality or general applicability test is
sufficient to trigger strict scrutiny. 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. Prohibiting a religious
practice was thus the District’s unquestioned
“object.” The District candidly acknowledged as much
below, conceding that its policies were “not
neutral” toward religion. The District’s
challenged policies also fail the general
applicability test. The District’s performance
evaluation after the 2015 football season advised
against rehiring Mr. Kennedy on the ground that he
“failed to supervise student- athletes after
games.” But, in fact, this was a bespoke requirement
specifically addressed to Mr. Kennedy’s religious
exercise. The District permitted other members of
the coaching staff to forgo supervising students
briefly after the game to do things like visit with
friends or take personal phone calls. Thus,
any sort of postgame supervisory requirement was not
applied in an evenhanded, across-the-board way. BWhen 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.” Of course, none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish. In addition to being private citizens, teachers and coaches are also government employees paid in part to speak on the government’s behalf and convey its intended messages. To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions 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. At the same time and at the other end of the spectrum, when an employee “speaks as a citizen addressing a matter of public concern,” our cases indicate that the First Amendment may be implicated and courts should proceed to a second step. 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. They share additional common ground too. They agree that Mr. Kennedy’s speech implicates a matter of public concern. They also appear to accept, at least for argument’s sake, that Mr. Kennedy’s speech does not raise questions of academic freedom that may or may not involve “additional” First Amendment “interests” beyond those captured by this framework. 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? Our cases offer some helpful guidance for resolving this question. In Garcetti, the Court concluded that a prosecutor’s internal memorandum to a supervisor was made “pursuant to [his] official duties,” and thus ineligible for First Amendment protection. In reaching this conclusion, the Court relied on the fact that the prosecutor’s speech “fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case.” Ibid. In other words, the prosecutor’s memorandum was government speech because it was speech the government “itself ha[d] commissioned or created” and speech the employee was expected to deliver in the course of carrying out his job. By contrast, in Lane a public employer sought to terminate an employee after he testified at a criminal trial about matters involving his government employment. The Court held that the employee’s speech was protected by the First Amendment. In doing so, the Court held that the fact the speech touched on matters related to public employment was not enough to render it government speech. Instead, the Court explained, the “critical question . . . is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” It is an inquiry this Court has said should be undertaken “practical[ly],” rather than with a blinkered focus on the terms of some formal and capacious written job description. To proceed otherwise would be to allow public employers to use “excessively broad job descriptions” to subvert the Constitution’s protections. Applying these lessons here, it seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. 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. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. See Part I–B, supra. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. The timing and circumstances of Mr. Kennedy’s prayers confirm the point. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands. We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play. Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not. In reaching
its contrary conclusion, the Ninth Circuit stressed
that, as a coach, Mr. Kennedy served as a role model
“clothed with the mantle of one who imparts
knowledge and wisdom.” . The court emphasized that
Mr. Kennedy remained on duty after games. Before us,
the District presses the same arguments. And
no doubt they have a point. Teachers and coaches
often serve as vital role models. But this argument
commits the error of positing an “excessively broad
job descriptio[n]” by treating everything teachers
and coaches say in the workplace as government
speech subject to government control. Garcetti,
On this understanding, a school could fire a Muslim
teacher for wearing a headscarf in the classroom or
prohibit a Christian aide from praying quietly over
her lunch in the cafeteria. Likewise, this argument
ignores the District Court’s conclusion (and the
District’s concession) that Mr. Kennedy’s actual
job description left time for a private moment
after the game to call home, check a text,
so cialize, or engage in any manner of secular
activities. Others working for the District were
free to engage briefly in personal speech and
activity. That Mr. Kennedy chose to use the
same time to pray does not transform his speech into
government speech. To hold differently would be to
treat religious expression as second-class speech
and eviscerate this Court’s repeated promise that
teachers do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse
gate.” 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 concern. IVWhether one views the case through the lens of the Free Exercise or Free Speech Clause, at this point the burden shifts to the District. 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. A similar standard generally obtains under the Free Speech Clause. The District, however, asks us to apply to Mr. Kennedy’s claims the more lenient second-step Pickering–Garcetti test, or alternatively intermediate scrutiny. Ultimately, however, it does not matter which standard we apply. The District cannot sustain its burden under any of them. As we have seen, the District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. On its account, Mr. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. To resolve that clash, the District reasoned, Mr. Kennedy’s rights had to “yield. But how could
that be? 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. But the three Clauses appear in the
same sentence of the same Amendment: “Congress shall
make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or
abridging the freedom of speech.” 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. The District
arrived at a different understanding this way. It
began with the premise that the Establishment Clause
is offended whenever a “reasonable observer” could
conclude that the government has “endorse[d]”
religion. The District then took the view that a
“reasonable observer” could think it “endorsed
Kennedy’s religious activity by not stopping the
practice.” On the District’s account, it did not
matter whether the Free Exercise Clause protected
Mr. Kennedy’s prayer. It did not matter if his
expression was private speech protected by the Free
Speech Clause. It did not matter that the District
never actually endorsed Mr. Kennedy’s prayer, no one
complained that it had, and a strong public reaction
only followed after the District sought to ban Mr.
Kennedy’s prayer. 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. In this way, the District effectively
created its own “vise between the Establishment
Clause on one side and the Free Speech and Free
Exercise Clauses on the other,” placed itself in the
middle, and then chose its preferred way out of its
self-imposed trap. To defend its
approach, the District relied on Lemon and
its progeny. In upholding the District’s actions,
the Ninth Circuit followed the same course.
And, to be sure, in Lemon this Court
attempted a “grand unified theory” for assessing
Establishment Clause claims. That approach called
for an examination of a law’s purposes, effects, and
potential for entanglement with religion. In
time, the approach also came to involve estimations
about whether a “reasonable observer” would consider
the government’s challenged action an “endorsement”
of religion. What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators. This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “ ‘perceptions’ ” or “ ‘discomfort.’ ” An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” 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.’ ” 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.” BPerhaps sensing that the primary theory it pursued below rests on a mistaken understanding of the Establishment Clause, the District offers a backup argument in this Court. It still contends that its Establishment Clause concerns trump Mr. Kennedy’s free exercise and free speech rights. But the District now seeks to supply different reasoning for that result. Now, it says, it was justified in suppressing Mr. Kennedy’s religious activity because otherwise it would have been guilty of coercing students to pray. And, the District says, coercing worship amounts to an Establishment Clause violation on anyone’s account of the Clause’s original meaning. As it turns out, however, there is a pretty obvious reason why the Ninth Circuit did not adopt this theory in proceedings below: The evidence cannot sustain it. To be sure, this Court has long held that government may not, consistent with a historically sensitive understanding of the Estab lishment Clause, “make a religious observance compulsory.” Government “may not coerce anyone to attend church,” ibid., nor may it force citizens to engage in “a formal religious exercise.” No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.5 Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause. 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. Begin with the District’s own contemporaneous description of the facts. In its correspondence with Mr. Kennedy, the District never raised coercion concerns. To the contrary, the District conceded in a public 2015 document that there was “no evidence that students [were] directly coerced to pray with Kennedy.” This is consistent with Mr. Kennedy’s account too. He has repeatedly stated that he “never coerced, required, or asked any student to pray,” and that he never “told any student that it was important that they participate in any religious activity.” Consider, too,
the actual requests Mr. Kennedy made. The District
did not discipline Mr. Kennedy for engaging in
prayer while presenting locker-room speeches
to students. That tradition predated Mr. Kennedy at
the school. And he willingly ended it, as the
District has acknowledged. He also
willingly ended his practice of postgame religious
talks with his team. The only prayer Mr.
Kennedy sought to continue was the kind he had
“started out doing” at the beginning of his
tenure—the prayer he gave alone. He made clear
that he could pray “while the kids were doing the
fight song” and “take a knee by [him]self and give
thanks and continue on.” Id., at 294. Mr.
Kennedy even considered it “acceptable” to say his
“prayer while the players were walking to the locker
room” or “bus,” and then catch up with his team. In
short, Mr. Kennedy did not seek to direct any
prayers to students or require anyone else to
participate. His plan was to wait to pray until
athletes were occupied, and he “told everybody”
that’s what he wished “to do.” It was for
three prayers of this sort alone in October 2015
that the District suspended him. Naturally, Mr.
Kennedy’s proposal to pray quietly by himself on the
field would have meant some people would have seen
his religious exercise. Those close at hand might
have heard him too. But learning how to tolerate
speech or prayer of all kinds is “part of learning
how to live in a pluralistic society,” a trait of
character essential to “a tolerant citizenry.” This
Court has long recognized as well that “secondary
school students are mature enough . . . to
understand that a school does not endorse,” let
alone coerce them to participate in, “speech that it
merely permits on a nondiscriminatory basis.” Of course, some will take offense to
certain forms of speech or prayer they are sure to
encounter in a society where those activities enjoy
such robust constitutional protection. But
“[o]ffense . . . does not
equate to coercion.” The District
responds that, as a coach, Mr. Kennedy “wielded
enormous authority and influence over the students,”
and students might have felt compelled to pray
alongside him. To support this argument, the
District submits that, after Mr. Kennedy’s
suspension, a few parents told District employees
that their sons had “participated in the team
prayers only because they did not wish to separate
themselves from the team.” This reply fails too. Not only does the District rely on hearsay to advance it. For all we can tell, the concerns the District says it heard from parents were occasioned by the locker-room prayers that predated Mr. Kennedy’s tenure or his postgame religious talks, all of which he discontinued at the District’s request. There is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined. On October 16, those students who joined Mr. Kennedy were “ ‘from the opposing team,’ ” and thus could not have “reasonably fear[ed]” that he would decrease their “playing time” or destroy their “opportunities” if they did not “participate,” As for the other two relevant games, “no one joined” Mr. Kennedy on October 23. And only a few members of the public participated on October 26. The absence of evidence of coercion in this record leaves the District to its final redoubt. Here, 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. In essence, the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression. If the argument sounds familiar, it should. Really, it is just another way of repackaging the District’s earlier submission that government may script everything a teacher or coach says in the workplace. The only added twist here is the District’s suggestion not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution. Such a rule
would be a sure sign that our Establishment Clause
jurisprudence had gone off the rails. In the name of
protecting religious liberty, the District would
have us suppress it. Rather than respect the First
Amendment’s double protection for religious
expression, it would have us preference secular
activity. Not only could schools fire teachers for
praying quietly over their lunch, for wearing a
yarmulke to school, or for offering a midday prayer
during a break before practice. Under the District’s
rule, a school would be required to do so.
It is a rule that would defy this Court’s
traditional understanding that permitting private
speech is not the same thing as coercing
others to participate in it. It is a rule,
too, that would undermine a long constitutional
tradition under which learning how to tolerate
diverse expressive activities has always been “part
of learning how to live in a pluralistic society.” Lee,
505 U. S., at 590. We are aware of no
historically sound understanding of the
Establishment Clause that begins to “mak[e] it
necessary for government to be hostile to religion”
in this way. Our judgments on all these scores find support in this Court’s prior cases too. In Zorach, for example, challengers argued that a public school program permitting students to spend time in private religious instruction off campus was impermissibly coercive. The Court rejected that challenge because students were not required to attend religious instruction and there was no evidence that any employee had “us[ed] their office to persuade or force students” to participate in religious activity. What was clear there is even more obvious here—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. Meanwhile, this case looks very different from those in which this Court has found prayer involving public school students to be problematically coercive. In Lee, this Court held that school officials violated the Establishment Clause by “including [a] clerical membe[r]” who publicly recited prayers “as part of [an] official school graduation ceremony” because the school had “in every practical sense compelled attendance and participation in” a “religious exercise.” In Santa Fe Independent School Dist. v. Doe, the Court held that a school district violated the Establishment Clause by broadcasting a prayer “over the public address system” before each football game.The Court observed that, while students generally were not required to attend games, attendance was required for “cheerleaders, members of the band, and, of course, the team members themselves.” None of that is true here. The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience. Students were not required or expected to participate. And, in fact, none of Mr. Kennedy’s students did participate in any of the three October 2015 prayers that resulted in Mr. Kennedy’s discipline. CIn 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. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. V
Respect for religious expressions is indispensable
to life in a free and diverse Republic—whether those
expressions take place in a sanctuary or on a field,
and whether they manifest through the spoken word or
a bowed head. Here, a government entity sought to
punish an individual for engaging in a brief, quiet,
personal religious observance doubly protected by
the Free Exercise and Free Speech Clauses of the
First Amendment. 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. The Constitution neither mandates nor
tolerates that kind of discrimination. Mr. Kennedy
is entitled to summary judgment on his First
Amendment claims. The judgment of the Court of
Appeals is Reversed. Justice Sotomayor, with whom Justice Breyer and Justice Kagan join, dissenting. This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. The Constitution does not authorize, let alone require, public schools to embrace this conduct. Since Engel v. Vitale, 370 U. S. 421 (1962), this Court consistently has recognized that school officials leading prayer is constitutionally impermissible. 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. To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history. The Court also ignores the severe disruption to school events caused by Kennedy’s conduct, viewing it as irrelevant because the Bremerton School District (District) stated that it was suspending Kennedy to avoid it being viewed as endorsing religion. Under the Court’s analysis, presumably this would be a different case if the District had cited Kennedy’s repeated disruptions of school programming and violations of school policy regarding public access to the field as grounds for suspending him. As the District did not articulate those grounds, the Court assesses only the District’s Establishment Clause concerns. It errs by assessing them divorced from the context and history of Kennedy’s prayer practice. Today’s decision
goes beyond merely misreading the record. The Court
overrules Lemon v. Kurtzman (1971),
and calls into question decades of subsequent
precedents that it deems “offshoot[s]” of that
decision. 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. In addition, while the Court
reaffirms that the Establishment Clause prohibits the
government from coercing participation in religious
exercise, it applies a nearly toothless version of the
coercion analysis, failing to acknowledge the unique
pressures faced by students when participating in
school-sponsored activities. This decision does a
disservice to schools and the young citizens they
serve, as well as to our Nation’s longstanding
commitment to the separation of church and state. I
respectfully dissent. . . . 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. It also
disregards the balance this Court’s cases strike among
the rights conferred by the Clauses. The Court relies
on an assortment of pluralities, concurrences,
and dissents by Members of the current majority to
effect fundamental changes in this Court’s Religion
Clauses jurisprudence, all the while proclaiming that
nothing has changed at all. . . . 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.” The Court now says for the first time
that endorsement simply does not matter, and
completely repudiates the test established in
Lemon. Both of these moves are erroneous and,
despite the Court’s assurances, novel. . . . To put it plainly, the purposes and effects of a government action matter in evaluating whether that action violates the Establishment Clause, as numerous precedents beyond Lemon instruct in the particular context of public schools. Neither the critiques of Lemon as setting out a dispositive test for all seasons nor the fact that the Court has not referred to Lemon in all situations support this Court’s decision to dismiss that precedent entirely, particularly in the school context. 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.’ ” Here again, the Court professes that nothing has changed. In fact, while the Court has long referred to historical practice as one element of the analysis in specific Establishment Clause cases, the Court has never announced this as a general test or exclusive focus. The Court
reserves any meaningful explanation of its
history-and-tradition test for another day, content
for now to disguise it as established law and move on.
It should not escape notice, however, that the effects
of the majority’s new rule could be profound. The
problems with elevating history and tradition over
purpose and precedent are well documented. For now, it suffices to say that the Court’s history-and-tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal issues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules. DFinally, the Court acknowledges that the Establishment Clause prohibits the government from coercing people to engage in religion practice, but its analysis of coercion misconstrues both the record and this Court’s precedents. The Court claims that the District “never raised coercion concerns” simply because the District conceded that there was “ ‘no evidence that students [were] directly coerced to pray with Kennedy.’ ” The Court’s suggestion that coercion must be “direc[t]” to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” Today’s Court
quotes the Lee Court’s remark that enduring
others’ speech is “ ‘part of learning how to live
in a pluralistic society.’ 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.” The Court also distinguishes Santa Fe because Kennedy’s prayers “were not publicly broadcast or recited to a captive audience.” This misses the point. In Santa Fe, a student council chaplain delivered a prayer over the public-address system before each varsity football game of the season. 530 U. S., at 294. Students were not required as a general matter to attend the games, but “cheerleaders, members of the band, and, of course, the team members themselves” were, and the Court would have found an “improper effect of coercing those present” even if it “regard[ed] every high school student’s decision to attend . . . as purely voluntary.” Kennedy’s prayers raise precisely the same concerns. His prayers did not need to be broadcast. His actions spoke louder than his words. His prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive than the audience in Santa Fe, with spectators watching and some players perhaps engaged in a song, but all waiting to rejoin their coach for a postgame talk. Moreover, Kennedy’s prayers had a greater coercive potential because they were delivered not by a student, but by their coach, who was still on active duty for postgame events. 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.” But nowhere does the Court engage with the unique coercive power of a coach’s actions on his adolescent players. In any event, the Court makes this assertion only by drawing a bright line between Kennedy’s years long practice of leading student prayers, which the Court does not de fend, and Kennedy’s final three prayers, which BHS students did not join, but student peers from the other teams did. As discussed above, this mode of analysis contravenes precedent by “turn[ing] a blind eye to the context in which [Kennedy’s practice] arose." This Court’s precedents require a more nuanced inquiry into the realities of coercion in the specific school context concerned than the majority recognizes today. The question before the Court is not whether a coach taking a knee to pray on the field would constitute an Establishment Clause violation in any and all circumstances. It 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. Having disregarded this context, the Court finds Kennedy’s three-game practice distinguishable from precedent because the prayers were “quie[t]” and the students were otherwise “occupied.” The record contradicts this narrative. Even on the Court’s myopic framing of the facts, at two of the three games on which the Court focuses, players witnessed student peers from the other team and other authority figures surrounding Kennedy and joining him in prayer. The coercive pressures inherent in such a situation are obvious. Moreover, Kennedy’s actual demand to the District was that he give “verbal” prayers specifically at the midfield position where he traditionally led team prayers, and that students be allowed to join him “voluntarily” and pray. Notably, the Court today does not embrace this demand, but it nonetheless rejects the District’s right to ensure that students were not pressured to pray. To reiterate, the District did not argue, and neither court below held, that “any visible religious conduct by a teacher or coach should be deemed . . . impermissibly coercive on students.” Nor has anyone contended that a coach may never visibly pray on the field. The courts below simply recognized that Kennedy continued to initiate prayers visible to students, while still on duty during school events, under the exact same circumstances as his past practice of leading student prayer. It is unprecedented for the Court to hold that this conduct, taken as a whole, did not raise cognizable coercion concerns. Importantly, nothing in the Court’s opinion should be read as calling into question that Kennedy’s conduct may have raised other concerns regarding disruption of school events or misuse of school facilities that would have separately justified employment action against Kennedy. * * *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.” 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. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty. I respectfully dissent. |