Joseph Kennedy v. Bremerton School District , 869 F.3d 813 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. KENNEDY, No. 16-35801
Plaintiff-Appellant,
D.C. No.
v. 3:16-cv-05694-RBL
BREMERTON SCHOOL DISTRICT,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted June 12, 2017
Seattle, Washington
Filed August 23, 2017
Before: DOROTHY W. NELSON, MILAN D. SMITH,
JR., and MORGAN CHRISTEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Milan D. Smith, Jr.
2 KENNEDY V. BREMERTON SCH. DIST.
SUMMARY *
Civil Rights
The panel affirmed the district court’s denial of
preliminary injunctive relief in an action brought by a high
school coach who alleged that his school district retaliated
against him for exercising his First Amendment rights when
it suspended him for kneeling and praying on the football
field’s fifty-yard line in view of students and parents
immediately after high school football games.
Plaintiff sought an injunction ordering the school district
to (1) cease discriminating against him in violation of the
First Amendment, (2) reinstate him as a football coach, and
(3) allow him to kneel and pray on the fifty-yard line
immediately after high school football games.
The panel held that plaintiff spoke as a public employee,
not as a private citizen when he kneeled and prayed on the
fifty-yard line immediately after games in school logoed-
attire while in view of students and parents. The panel held
that plaintiff had a professional responsibility to
communicate demonstratively to students and spectators and
he took advantage of his position to press his particular
views upon the impressionable and captive minds before
him. The panel held that because plaintiff’s demonstrative
speech fell within the scope of his typical job
responsibilities, he spoke as a public employee, and the
district was permitted to order him not to speak in the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KENNEDY V. BREMERTON SCH. DIST. 3
manner that he did. Plaintiff accordingly could not show a
likelihood of success on the merits of his First Amendment
retaliation claim, and was not entitled to a preliminary
injunction.
Specially concurring, Judge M. Smith wrote separately
to share his view that the school district’s action were also
justified to avoid violating the Establishment Clause.
COUNSEL
Rebekah Ricketts (argued) and Benjamin D. Wilson, Gibson
Dunn & Crutcher LLP, Dallas, Texas; Daniel S.J. Nowicki,
Gibson Dunn & Crutcher LLP, Palo Alto, California; Jeffrey
Paul Helsdon, Oldfield & Helsdon PLLC, Fircrest,
Washington; Hiram Sasser and Michael Berry, First Liberty
Institute, Plano, Texas; Anthony J. Ferate, Ferate PLLC,
Edmond, Oklahoma; for Plaintiff-Appellant.
Michael B. Tierney (argued) and Paul Correa, Tierney &
Blakney P.C., Seattle, Washington, for Defendant-Appellee.
Andrew L. Nellis (argued) and Richard B. Katskee,
Americans United for Separation of Church and State,
Washington, D.C.; David L. Barkey, Anti-Defamation
League, Boca Raton, Florida; Jeffrey I. Pasek, Cozen
O’Connor, New York, New York; for Amici Curiae
Americans United for the Separation of Church and State;
The Anti-Defamation League; Central Conference of
American Rabbis; Disciples Justice Action Network of the
Christian Church (Disciples of Christ); Equal Partners in
Faith; Hadassah, the Women’s Zionist Organization of
America, Inc.; Hindu American Foundation; The Interfaith
Alliance; Jewish Social Policy Action Network; People for
4 KENNEDY V. BREMERTON SCH. DIST.
the American Way Foundation; Union for Reform Judaism;
and Women of Reform Judaism.
Gerald J. Russello and Daniel A. McLaughlin, Sidley Austin
LLP, New York, New York; Collin P. Wedel, Sidley Austin
LLP, Los Angeles, California; Christopher R. Mills, Sidley
Austin LLP, Washington, D.C.; for Amicus Curiae Former
Professional Football Players Steve Largent and Chad
Hennings.
Justin D. Park, Bellevue, Washington, for Amicus Curiae
Garfield High School Coaches Kellen Alley and Joseph
Thomas.
OPINION
M. SMITH, Circuit Judge:
Bremerton High School (BHS) football coach Joseph A.
Kennedy appeals from the district court’s order denying his
motion for a preliminary injunction that would require
Bremerton School District (BSD or the District) to allow
Kennedy to kneel and pray on the fifty-yard line in view of
students and parents immediately after BHS football games.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Bremerton School District
BSD is located in Kitsap County, Washington, across the
Puget Sound from Seattle. The District is home to
approximately 5,057 students, 332 teachers, and 400 non-
teaching personnel. BSD is religiously diverse. Students
KENNEDY V. BREMERTON SCH. DIST. 5
and families practice, among other beliefs, Judaism, Islam,
the Bahá’í faith, Buddhism, Hinduism, and Zoroastrianism.
BSD employed Kennedy as a football coach at
Bremerton High School from 2008 to 2015. Kennedy served
as an assistant coach for the varsity football team and also as
the head coach for the junior varsity football team.
Kennedy’s contract expired at the end of each football
season. It provided that BSD “entrusted” Kennedy “to be a
coach, mentor and role model for the student athletes.”
Kennedy further agreed to “exhibit sportsmanlike conduct at
all times,” and acknowledged that, as a football coach, he
was “constantly being observed by others.”
Kennedy’s formal job description required him to assist
the head coach with “supervisory responsibilities,” “[a]dhere
to Bremerton School District policies and administrative
regulations,” “communicate effectively” with parents,
“maintain positive media relations,” and “[o]bey all the
Rules of Conduct before players and the public as expected
of a Head Coach,” including the requirement to “use proper
conduct before the public and players at all times.”
Consistent with his responsibility to serve as a role model,
Kennedy’s contract required that, “[a]bove all” else,
Kennedy would endeavor not only “to create good athletes,”
but also “good human beings.”
B. Kennedy’s Religious Beliefs and Past Practices
Kennedy is a practicing Christian. Between 2008 and
2015, he led students and coaching staff in a locker-room
prayer prior to most games. He also participated in prayers
that took place in the locker room after the games had ended.
Kennedy insists these activities predated his involvement
with the program, and were engaged in as a matter of school
6 KENNEDY V. BREMERTON SCH. DIST.
tradition. His religious beliefs do not require him to lead any
prayer before or after BHS football games.
Kennedy’s religious beliefs do require him to give thanks
through prayer at the end of each game for the players’
accomplishments and the opportunity to be a part of their
lives through football. Specifically, “[a]fter the game is
over, and after the players and coaches from both teams have
met to shake hands at midfield,” Kennedy feels called to
“take a knee at the 50-yard line and offer a brief, quiet prayer
of thanksgiving for player safety, sportsmanship, and
spirited competition.” Kennedy’s prayer usually lasts about
thirty seconds. He wears a shirt or jacket bearing a BHS logo
when he prays at midfield. Because his “prayer lifts up the
players and recognizes their hard work and sportsmanship
during the game,” Kennedy’s religious beliefs require him to
pray on the actual field where the game was played.
Kennedy began performing these prayers when he first
started working at BHS. At the outset, he prayed alone.
Several games into his first season, however, a group of BHS
players asked Kennedy whether they could join him. “This
is a free country,” Kennedy replied, “You can do what you
want.” Hearing that response, the students elected to join
him. Over time, the group grew to include the majority of
the team. Sometimes the BHS players even invited the
opposing team to join.
Eventually, Kennedy’s religious practice evolved to
something more than his original prayer. He began giving
short motivational speeches at midfield after the games.
Students, coaches, and other attendees from both teams were
invited to participate. During the speeches, the participants
kneeled around Kennedy, who raised a helmet from each
team and delivered a message containing religious content.
KENNEDY V. BREMERTON SCH. DIST. 7
Kennedy subsequently acknowledged that these
motivational speeches likely constituted prayers.
C. The September 17, 2015, Letter from BSD to
Kennedy
The District first learned that Kennedy was leading
locker-room prayers and praying on the field in September
2015, when an employee of another school district
mentioned the post-game prayers to a BSD administrator. 1
The discovery prompted an inquiry into whether Kennedy
was complying with the school board’s policy on
“Religious-Related Activities and Practices.” Pursuant to
that policy, “[a]s a matter of individual liberty, a student may
of his/her own volition engage in private, non-disruptive
prayer at any time not in conflict with learning activities.”
In addition, “[s]chool staff shall neither encourage nor
discourage a student from engaging in non-disruptive oral or
silent prayer or any other form of devotional activity.”
Kennedy was candid and cooperative throughout the
District’s inquiry. The investigation revealed that coaching
staff had received little training regarding the District’s
policy. Accordingly, BSD Superintendent Aaron Leavell
sent Kennedy a letter on September 17, 2015, to clarify the
District’s prospective expectations.
Leavell explained that Kennedy’s two practices were
“problematic” under the Establishment Clause, but he
acknowledged that they were well-intentioned and that
Kennedy had “not actively encouraged, or required,
1
The District had not received complaints up to that point. As the
community became aware of Kennedy’s practices, however, the District
reports that individuals “expressed concern about Mr. Kennedy’s
actions.”
8 KENNEDY V. BREMERTON SCH. DIST.
[student] participation.” Leavell advised Kennedy that he
could continue to give inspirational talks, but “[t]hey must
remain entirely secular in nature, so as to avoid alienation of
any team member.” He further advised that “[s]tudent
religious activity must be entirely and genuinely student-
initiated, and may not be suggested, encouraged (or
discouraged), or supervised by any District staff.” Leavell
further counseled Kennedy that “[i]f students engage in
religious activity, school staff may not take any action likely
to be perceived by a reasonable observer, who is aware of
the history and context of such activity at BHS, as
endorsement of that activity.” Lastly, Leavell stressed that
Kennedy was
free to engage in religious activity, including
prayer, so long as it does not interfere with
job responsibilities. Such activity must be
physically separate from any student activity,
and students may not be allowed to join such
activity. In order to avoid the perception of
endorsement discussed above, such activity
should either be non-demonstrative (i.e., not
outwardly discernible as religious activity) if
students are also engaged in religious
conduct, or it should occur while students are
not engaging in such conduct.
D. Kennedy Responds via an October 14th Letter
By this point, Kennedy’s prayers had “generated
substantial publicity.” Comments on social media led the
District to be concerned that BHS would not be able to
secure its field after the September 18, 2015, game,
assuming—as it suspected—that a crowd would come down
from the stands to join Kennedy’s on-field prayer. The
KENNEDY V. BREMERTON SCH. DIST. 9
District was “not able to prevent that from happening” based
on the state of its preparations, and it decided that it would
not “prevent access to the field at that point.” On the day of
the game, the school’s concerns were not realized, however,
because after receiving the District’s letter, Kennedy
temporarily stopped praying on the field while students were
around. Instead, after the September 18th game, Kennedy
gave a short motivational speech “that included no mention
of religion or faith.” Then, once “everyone else had left the
stadium,” he walked to the fifty-yard line, knelt, and prayed
alone.
After complying in this manner for several weeks,
Kennedy wrote the District through his lawyer on October
14, 2015. He requested a religious accommodation under
the Civil Rights Act of 1964 that would allow him to
“continue his practice of saying a private, post-game prayer
at the 50-yard line” immediately following BHS football
games. The letter opined that Kennedy’s religious
expression occurred during “non-instructional hours”
because, according to Kennedy, “his official coaching duties
ceased” after the games had ended. The letter also
acknowledged that Kennedy’s prayers were “audibl[e],” but
stressed that “he does not pray in the name of a specific
religion,” and “neither requests, encourages, nor discourages
students from participating in” his prayer. Lastly, the letter
announced that Kennedy would resume praying on the fifty-
yard line at the October 16, 2015, game.
Kennedy’s intention to pray on the field following the
October 16th game “was widely publicized, including
through [Kennedy’s] own media appearances.” On the day
of the game, the District had not yet responded to Kennedy’s
letter, but Kennedy nonetheless proceeded as he had
indicated. Once the final whistle blew, Kennedy shook
10 KENNEDY V. BREMERTON SCH. DIST.
hands with the opposing team and waited until most of the
BHS players were singing the fight song to the audience in
the stands. Then, he knelt on the fifty-yard line, bowed his
head, closed his eyes, “and prayed a brief, silent prayer.”
According to Kennedy, while he was kneeling with his eyes
closed, “coaches and players from the opposing team, as
well as members of the general public and media,
spontaneously joined [him] on the field and knelt beside
[him].” In the days after the game, pictures were “published
in various media” depicting Kennedy praying while
surrounded by players and members of the public.
The District maintains that while Kennedy was walking
to the fifty-yard line, “[t]here were people jumping the fence
and others running among the cheerleaders, band[,] and
players.” Afterwards, “the District received complaints
from parents of band members who were knocked over in
the rush of spectators on to the field.” Sometime after the
game, members of a Satanist religion contacted the District
and said they “intended to conduct ceremonies on the field
after football games if others were allowed to.” Ultimately,
the District made arrangements with the Bremerton Police
Department to secure the field after games, then posted
signs, made “robocalls” to District parents, and “otherwise
put the word out to the public that there would be no [future]
access to the field.” Representatives of the Satanist religion
showed up at the next game, “but they did not enter the
stands or go on the field after learning that the field would
be secured.” 2
2
Kennedy contends that prior to this date, BHS had allowed parents
and fans to walk onto the field after games to socialize and congratulate
the players. He does not meaningfully contest that the field was not an
KENNEDY V. BREMERTON SCH. DIST. 11
E. The District’s October 23rd and October 28th Letters
Leavell sent Kennedy a second letter on October 23,
2015. He thanked Kennedy for his “efforts to comply with
the September 17 directives.” Still, he explained that
Kennedy’s conduct at the game on October 16th was
inconsistent with the District’s requirements. Leavell
emphasized “that the District does not prohibit prayer or
other religious exercise by employees while on the job,” but
“such exercise must not interfere with the performance of
job responsibilities, and must not lead to a perception of
District endorsement of religion.”
According to the District, Kennedy had not met those
requirements because “paid assistant coaches in District
athletic programs are responsible for supervision of students
not only prior to and during the course of games, but also
during the activities following games and until players are
released to their parents or otherwise allowed to leave.”
(emphasis added). The District confirmed with Kennedy’s
head coach “that for over ten years, all assistant coaches
have had assigned duties both before and after each game
and have been expected to remain with the team until the last
student has left the event.” Thus, the District told Kennedy,
[W]hen you engaged in religious exercise
immediately following the game on October
16, you were still on duty for the District.
You were at the event, and on the field, under
the game lights, in BHS-logoed attire, in front
of an audience of event attendees, solely by
virtue of your employment by the District.
open forum while in use by the District, however, and that the District
retained the right to limit public access.
12 KENNEDY V. BREMERTON SCH. DIST.
The field is not an open forum to which
members of the public are invited following
completion of games; but even if it were, you
continued to have job responsibilities,
including the supervision of players. While
[BSD] understand[s] that your religious
exercise was fleeting, it nevertheless drew
you away from your work. More
importantly, any reasonable observer saw a
District employee, on the field only by virtue
of his employment with the District, still on
duty, under the bright lights of the stadium,
engaged in what was clearly, given your prior
public conduct, overtly religious conduct. 3
The District reiterated that it “can and will” accommodate
“religious exercise that would not be perceived as District
endorsement, and which does not otherwise interfere with
the performance of job duties.” To that end, it suggested that
“a private location within the school building, athletic
facility or press box could be made available to [Kennedy]
for brief religious exercise before and after games.”
Kennedy, of course, could also resume his prior practice of
praying on the fifty-yard line after the stadium had emptied.
Because the “[d]evelopment of accommodations is an
interactive process,” the District invited Kennedy to offer his
own suggestions. The District also reminded Kennedy that
“[w]hile on duty for the District as an assistant coach, you
may not engage in demonstrative religious activity, readily
3
Kennedy appears to have abandoned his argument that he was not
“on duty” after the games. Instead, he contends that he never received a
post-game assignment “that would prohibit [him] from engaging in
religious expression lasting no more than 30 seconds.”
KENNEDY V. BREMERTON SCH. DIST. 13
observable to (if not intended to be observed by) students
and the attending public.”
F. Kennedy Continues Praying on the Fifty-Yard Line
Kennedy’s legal representatives responded to the
District’s letter by informing the media that the only
acceptable outcome would be for the District to permit
Kennedy to pray on the fifty-yard line immediately after
games. 4 Kennedy’s conduct bore that out. He prayed on the
fifty-yard line immediately after the game on October 23rd,
and once again after the game on October 26th.
The District subsequently notified Kennedy in an
October 28th letter that he had violated the District’s
directives and would be placed on paid administrative leave
from his position as an assistant coach. The District also
publicly-released a document entitled “Bremerton School
District Statement and Q&A Regarding Assistant Football
Coach Joe Kennedy,” which detailed the history of the
District’s interactions with Kennedy and explained its views
regarding the constitutionality of Kennedy’s conduct.
While Kennedy was on leave, he was not allowed to
participate in BHS football program activities. Kennedy
could still attend the games in his capacity as a member of
the public. At the October 30, 2015, game, which Kennedy
attended as a member of the public, Kennedy prayed in the
bleachers while wearing his BHS apparel, surrounded by
others, and with news cameras recording his actions.
4
Kennedy now contends that the District’s accommodations were
inadequate because “BSD did not explain how [his] religious expression
would be accommodated at away games,” where BSD does not have
direct control over the facilities.
14 KENNEDY V. BREMERTON SCH. DIST.
While Kennedy was on leave, and during the time that
he temporarily ceased performing on-field prayers, BHS
players did not pray on their own after BHS football games.
Rather, during the 2015 season, the District observed players
praying on the field only at the games where Kennedy
elected to do so. The District’s public statement thus opined
“[i]t is very likely that over the years, players have joined in
these activities because to do otherwise would mean
potentially alienating themselves from their team, and
possibly their coaches.” The District also surmised that
“students required to be present by virtue of their
participation in football or cheerleading will necessarily
suffer a degree of coercion to participate in religious activity
when their coaches lead or endorse it.” The District’s
statement acknowledged that there was “no evidence” that
students were “directly coerced to pray with Kennedy.”
(emphasis added). The District also acknowledged that
Kennedy “complied” with directives “not to intentionally
involve students in his on-duty religious activities.”
(emphasis added).
G. Kennedy’s Evaluation and Decision Not to Reapply
for a Job
After the season ended, the District began its annual
process of providing its coaches with performance reviews.
This starts with written evaluations by the head coach and
the school’s athletic director. The assistant coach then
typically meets with one of those two people to go over his
performance evaluation. If the coach is unsatisfied with the
head coach or athletic director’s evaluation, he can involve
the school principal or the District. Kennedy had previously
participated in this review—and had received uniformly
positive evaluations—but he did not participate in 2015.
Kennedy’s supervisors nonetheless submitted their
KENNEDY V. BREMERTON SCH. DIST. 15
assessments. The athletic director recommended that
Kennedy not be rehired because Kennedy “failed to follow
district policy” and “failed to supervise student-athletes after
games due to his interactions with [the] media and [the]
community.”
The head coach of the varsity football team left the job
at the conclusion of the 2015 season. The one-year contracts
also expired for all six of the assistant football coaches. The
District therefore opened up to application all seven of the
football coaching positions. Kennedy did not apply for a
coaching position during the 2016 season.
H. Kennedy Files Suit
Kennedy commenced this action in the Western District
of Washington on August 9, 2016. He asserts that his rights
under the First Amendment and Title VII of the Civil Rights
Act of 1964 were violated. Kennedy moved for a
preliminary injunction on August 24, 2016, arguing that he
would succeed on the merits of his claim that BSD retaliated
against him for exercising his First Amendment right to free
speech. 5 Kennedy sought an injunction ordering BSD to
(1) cease discriminating against him in violation of the First
Amendment, (2) reinstate him as a BHS football coach, and
(3) allow him to kneel and pray on the fifty-yard line
immediately after BHS football games.
5
Kennedy brings his First Amendment retaliation claim pursuant to
42 U.S.C. § 1983. The First Amendment applies against the State
pursuant to the Fourteenth Amendment. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 336 n.1 (1995) (“The term ‘liberty’ in the
Fourteenth Amendment to the Constitution makes the First Amendment
applicable to the States.”).
16 KENNEDY V. BREMERTON SCH. DIST.
The district court denied the requested preliminary
injunction on September 19, 2016. Applying the five-step
framework laid out in Eng v. Cooley, 552 F.3d 1062 (9th Cir.
2009), the court held that Kennedy was unlikely to prevail
on the merits of his First Amendment retaliation claim
because Kennedy spoke as a public employee and BSD’s
conduct was justified by its need to avoid violating the
Establishment Clause. In reaching these conclusions, the
court observed that “Kennedy was dressed in school colors,”
“chose a time and event [that] . . . is a big deal” for students,
and “used that opportunity to convey his religious views”
while “[h]e was still responsible for the conduct of his
students.” The court also found that Kennedy’s prayer
resulted in “subtle coercion” because “[i]f you are an athlete,
you are impressionable, and you . . . want to please your
coach to get more playing time, to shine.” The court further
concluded that a reasonable observer familiar with the
relevant context “would have seen [Kennedy] as a coach,
participating, in fact[,] leading an orchestrated session of
faith.” Given that Kennedy could not demonstrate a
likelihood of success on the merits, the district court did not
address the remaining preliminary injunction factors.
Kennedy filed a timely notice of appeal on October 3, 2016.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
A plaintiff seeking a preliminary injunction must
establish that (1) he is likely to succeed on the merits of his
claim, (2) he is likely to suffer irreparable harm in the
absence of preliminary relief, (3) the balance of equities tips
in his favor, and (4) an injunction is in the public interest.
Sanders Cty. Republican Cent. Comm. v. Bullock, 698 F.3d
741, 744 (9th Cir. 2012).
KENNEDY V. BREMERTON SCH. DIST. 17
“[W]e review the denial of a preliminary injunction for
abuse of discretion.” Harris v. Bd. of Supervisors, L.A. Cty.,
366 F.3d 754, 760 (9th Cir. 2004). “The district court
necessarily abuses its discretion when it bases its decision on
an erroneous legal standard or on clearly erroneous findings
of fact.” Id. (internal quotation marks omitted). Where, as
here, “the district court is alleged to have relied on an
erroneous legal premise, we review the underlying issues of
law de novo.” Id.; see also Sanders, 698 F.3d at 744
(“[W]here a district court’s denial of a preliminary
injunction motion rests solely on a premise of law and the
facts are either established or undisputed, our review is de
novo.” (internal quotation marks omitted)).
ANALYSIS
Kennedy contends that the district court erred by
concluding that he was not likely to succeed on the merits of
his claim that BSD placed him on paid administrative leave
in retaliation for exercising his First Amendment right to free
speech.
First Amendment retaliation claims are governed by the
framework in Eng. See 552 F.3d at 1070‒72. Kennedy must
show that (1) he spoke on a matter of public concern, (2) he
spoke as a private citizen rather than a public employee, and
(3) the relevant speech was a substantial or motivating factor
in the adverse employment action. Coomes v. Edmonds Sch.
Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (citing
Eng, 552 F.3d at 1070‒71). Upon that showing, the State
must demonstrate that (4) it had an adequate justification for
treating Kennedy differently from other members of the
general public, or (5) it would have taken the adverse
employment action even absent the protected speech. Id.(citing Eng, 552 F.3d at 1070‒72). “[A]ll the factors are
necessary, in the sense that failure to meet any one of them
18 KENNEDY V. BREMERTON SCH. DIST.
is fatal to the plaintiff’s case.” Dahlia v. Rodriguez,
735 F.3d 1060, 1067 n.4 (9th Cir. 2013) (en banc).
Accordingly, “a reviewing court is free to address a
potentially dispositive factor first rather than addressing
each factor sequentially.” Coomes, 816 F.3d at 1260
(internal quotation marks omitted).
Here, the parties do not contest that Kennedy spoke on a
matter of public concern (Eng factor one), that the relevant
speech was a substantial or motivating factor in the District’s
decision to place Kennedy on leave (Eng factor three), and
that the District would not have taken the adverse
employment action in the absence of the relevant speech
(Eng factor five). Thus, we need consider only whether
Kennedy spoke as a private citizen or a public employee
(Eng factor two), and whether BSD’s conduct was
adequately justified by its need to avoid an Establishment
Clause violation (Eng factor four). We conclude that
Kennedy spoke as a public employee, not as a private citizen,
and therefore decline to reach whether BSD justifiably
restricted Kennedy’s speech to avoid violating the
Establishment Clause. Kennedy accordingly cannot show a
likelihood of success on the merits of his First Amendment
retaliation claim, and is not entitled to the preliminary
injunction he seeks. 6
6
The parties have not briefed the remaining preliminary injunction
factors, and we need not reach them in light of this conclusion.
KENNEDY V. BREMERTON SCH. DIST. 19
I. Kennedy spoke as a public employee, and not as a
private citizen, when he prayed on the fifty-yard line
in view of students and parents immediately after
BHS football games.
A. Governing Law
“[P]ublic employees do not surrender all their First
Amendment rights by reason of their employment.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Rather, they
retain the right “in certain circumstances[] to speak as a
citizen addressing matters of public concern.” Id. Courts
therefore must decide under the second Eng factor whether
an official spoke as a citizen, and thus had First Amendment
rights to exercise, or whether the official spoke in his
capacity as a public employee, and therefore did not.
Pickering v. Board of Education of Township High
School District 205, 391 U.S. 563 (1968), laid a foundation
for this inquiry. The Court held that a school district violated
a teacher’s right to free speech when it fired the teacher for
writing a letter to a local newspaper criticizing the school
board’s handling of a tax proposal. Id. at 564‒65. The Court
noted that the statements in the letter were not “directed
towards any person with whom [the teacher] would normally
be in contact in the course of his daily work.” Id. at 569‒70.
Moreover, publication of the letter did not “imped[e] the
teacher’s proper performance of his daily duties in the
classroom” or “interfere[] with the regular operation of the
schools generally.” Id. at 572‒73. Because the school had
no greater interest in limiting the teacher’s speech than it did
“in limiting a similar contribution by any member of the
general public,” id. at 573, the teacher spoke as a private
citizen, and the speech itself could not furnish a basis for the
teacher’s dismissal from public employment, id. at 574.
20 KENNEDY V. BREMERTON SCH. DIST.
The Court refined this inquiry in Garcetti v. Ceballos,
547 U.S. 410 (2006). There it held “that when public
employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” Id. at 421(emphasis added). Applying that reasoning, “the Court
found that an internal memorandum prepared by a
prosecutor in the course of his ordinary job responsibilities
constituted unprotected employee speech.” Lane v. Franks,
134 S. Ct. 2369, 2378 (2014) (citing Garcetti, 547 U.S. at
424). The prosecutor spoke as a public employee because
he was “fulfilling a responsibility to advise his supervisor
about how best to proceed with a pending case.” Garcetti,
547 U.S. at 421. In other words, “[the prosecutor’s]
expressions were made pursuant to his duties as a calendar
deputy,” id., and “[r]estricting speech that owes its existence
to a public employee’s professional responsibilities,” the
Court said, “does not infringe any liberties the employee
might have enjoyed as a private citizen,” id. at 421‒22.
Garcetti also emphasized “that various easy heuristics
are insufficient for determining whether an employee spoke
pursuant to his professional duties.” Dahlia, 735 F.3d at
1069; see also Garcetti, 547 U.S. at 420‒21, 424. For
instance, it was “not dispositive” that the prosecutor
“expressed his views inside his office, rather than publicly,”
Garcetti, 547 U.S. at 420, or that the memorandum
“concerned the subject matter of [the prosecutor’s]
employment,” id. at 421. The Court rejected the suggestion
that employers could restrict their employees’ rights “by
creating excessively broad job descriptions.” Id. at 424. It
ultimately instructed that
KENNEDY V. BREMERTON SCH. DIST. 21
The proper inquiry is a practical one. Formal
job descriptions often bear little resemblance
to the duties an employee actually is expected
to perform, and the listing of a given task in
an employee’s written job description is
neither necessary nor sufficient to
demonstrate that conducting the task is
within the scope of the employee’s
professional duties for First Amendment
purposes.
Id. at 424‒25.
Following Garcetti, we clarified that “the determination
whether the speech in question was spoken as a public
employee or a private citizen presents a mixed question of
fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84,
546 F.3d 1121, 1129 (9th Cir. 2008). “First, a factual
determination must be made as to the scope and content of a
plaintiff’s job responsibilities.” Johnson v. Poway Unified
Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011) (internal
quotation marks omitted). “Second, the ultimate
constitutional significance of those facts must be determined
as a matter of law.” Id. (internal quotation marks omitted).
Helpfully, in 2011, we applied these instructions in a
First Amendment retaliation case involving a teacher
employed by a public school. The teacher argued that he
spoke as a private citizen when he decorated his classroom
with two large banners that conveyed a religious message.
Johnson, 658 F.3d at 965. We held that the teacher’s
religious speech was “unquestionably of inherent public
concern,” id. at 966, but that he nonetheless “spoke as an
employee, not as a citizen,” id. at 970.
22 KENNEDY V. BREMERTON SCH. DIST.
At the first step, we observed that Johnson (the teacher)
did “not hold a unique or exotic government position”—he
“perform[ed] the ordinary duties of a math teacher.” Id. at
967. In defining those duties, we found that “expression is a
teacher’s stock in trade, the commodity [he] sells to [his]
employer in exchange for a salary.” Id. (internal quotation
marks and alteration omitted). So, it was “irrelevant . . . to
the question of whether Johnson spoke as a citizen or as an
employee” that “the banners were not part of Johnson’s
curriculum.” Id. at 967 n.13. After all, “teachers do not
cease acting as teachers each time the bell rings or the
conversation moves beyond the narrow topic of curricular
instruction.” Id. at 967‒68.
We further observed that Johnson hung the banners
pursuant to a long-standing policy permitting teachers to
decorate their classrooms subject to specific limitations. Id.
at 967. Accordingly, we found that Johnson’s speech
occurred “while performing a function [] squarely within the
scope of his position”; “[h]e was not running errands for the
school in a car adorned with sectarian bumper stickers,” for
instance, “or praying with people sheltering in the school
after an earthquake.” Id. Adding it up, because Johnson was
communicating with his students, “as a practical matter,” we
found it was “beyond possibility for fairminded dispute that
the scope and content of Johnson’s job responsibilities did
not include speaking to his class in his classroom during
class hours.” Id. (internal quotation marks, alteration, and
emphasis omitted).
At step two, we assessed the constitutional significance
of those facts by asking “whether Johnson’s speech owe[d]
its existence to his position, or whether he spoke just as any
non-employee citizen could have.” Id. For several reasons,
we held “[t]he answer [was] clear”: “Johnson did not act as
KENNEDY V. BREMERTON SCH. DIST. 23
an ordinary citizen when ‘espousing God as opposed to no
God’ in his classroom.” Id. To start, “[a]n ordinary citizen
could not have walked into Johnson’s classroom and
decorated the walls as he or she saw fit, anymore than an
ordinary citizen could demand that students remain in their
seats and listen to whatever idiosyncratic perspective or
sectarian viewpoints he or she wished to share.” Id. at 968.
“Unlike Pickering,” moreover, “who wrote a letter to his
local newspaper as any citizen might, . . . Johnson took
advantage of his position to press his particular views upon
the impressionable and captive minds before him.” Id.(internal quotation marks and citation omitted). More
generally, “because of the position of trust and authority
[teachers] hold and the impressionable young minds with
which they interact,” we held that “teachers necessarily act
as teachers for purposes of a Pickering inquiry when [1] at
school or a school function, [2] in the general presence of
students, [3] in a capacity one might reasonably view as
official.” Id. Applying that rule, Johnson fit the parameters.
The religious speech “at issue” therefore “owe[d] its
existence to Johnson’s position as a teacher.” Id. at 970.
And, because the speech fell within the ordinary scope of
Johnson’s professional responsibilities, the school “acted
well within constitutional limits in ordering Johnson not to
speak in a manner it did not desire.” 7 Id.7
Kennedy calls our attention to Dahlia and Lane. While we draw
guidance from those decisions, they did not work an appreciable change
to the legal inquiry required under the second Eng factor.
In Lane, the Supreme Court reiterated that “[t]he critical question
under Garcetti is whether the speech at issue is itself ordinarily within
the scope of an employee’s duties, not whether [the subject matter of the
speech] merely concerns those duties.” 134 S. Ct. at 2379. It held that
“[t]ruthful testimony under oath by a public employee outside the scope
24 KENNEDY V. BREMERTON SCH. DIST.
B. Application
Applying the foregoing principles, Kennedy spoke as a
public employee, and not as a private citizen. Before
undertaking our analysis, two critical points deserve
attention. First, the relevant “speech at issue” involves
kneeling and praying on the fifty-yard line immediately after
games while in view of students and parents. See Lane,
134 S. Ct. at 2379. It is not, as Kennedy contends, praying
on the fifty-yard line “silently and alone.” We know this
because Kennedy was offered (and, for a time, accepted) an
accommodation permitting him to pray on the fifty-yard line
after the stadium had emptied and students had been released
to the custody of their parents. His refusal of that
accommodation indicates that it is essential that his speech
be delivered in the presence of students and spectators.
Second, for the same reason, the “speech at issue” is directed
at least in part to the students and surrounding spectators; it
of his ordinary job duties is speech as a citizen for First Amendment
purposes.” Id. at 2378 (emphasis added).
In Dahlia, we reiterated that the second Eng factor requires a
practical, fact-specific inquiry, and that courts may not rely solely on a
generic job description. See 735 F.3d at 1070‒71. We also articulated
several “guideposts” for determining whether an individual acted within
the scope of their professional duties. Id. at 1073‒74. These included
(1) “whether or not the employee confined his communications to his
chain of command,” (2) “the subject matter of the communication,” and
(3) whether a public employee’s speech is “in direct contravention to his
supervisor’s orders.” Id. at 1074‒75. While we are mindful of these
factors, they stem from the context Dahlia confronted—a police officer
reporting abuse that occurred in his own police department. See id. at
1064‒65. We find Johnson more informative for our purposes than
either Dahlia or Lane because Johnson specifically addressed teacher
speech in the public school context. See Johnson, 658 F.3d at 967‒68;
see also Coomes, 816 F.3d at 1259‒61.
KENNEDY V. BREMERTON SCH. DIST. 25
is not solely speech directed to God. Hence, the question
under the second Eng factor is whether this demonstrative
communication to students and spectators “is itself
ordinarily within the scope of [Kennedy’s] duties.” Id.
1. Factual determination of Kennedy’s job
responsibilities.
Kennedy’s job did not merely require him to supervise
students in the locker room, at practice, and before and after
games. Nor was it limited to treating injuries and instructing
players about techniques related to football. Rather, in
addition to these duties, BSD “entrusted” Kennedy “to be a
coach, mentor and role model for the student athletes.”
Kennedy further agreed to “exhibit sportsmanlike conduct at
all times,” and acknowledged that, as a football coach, he
was “constantly being observed by others.” The District also
required Kennedy to “communicate effectively” with
parents, “maintain positive media relations,” and “[o]bey all
the Rules of Conduct before players and the public as
expected of a Head Coach,” including the requirement to
“use proper conduct before the public and players at all
times.” Consistent with his duty to serve as a role model to
students, Kennedy’s contract required that, “[a]bove all”
else, Kennedy would endeavor not only “to create good
athletes,” but also “good human beings.”
Kennedy’s job, in other words, involved modeling good
behavior while acting in an official capacity in the presence
of students and spectators. Kennedy’s amici agree.
According to former professional football players Steve
Largent and Chad Hennings, for instance, a football coach
“serve[s] as a personal example.” That is what the District
hired Kennedy to do, when he was in the presence of
students and parents: communicate a positive message
through the example set by his own conduct. Any person
26 KENNEDY V. BREMERTON SCH. DIST.
who has attended a high school sporting event likely knows
that this is true. To illustrate, when a referee makes a bad
call, it is a coach’s job to respond maturely. In doing so, he
provides an example to players and spectators. Likewise,
when a parent hassles a coach after a game seeking more
playing time for her child, a calm reaction by the coach
teaches the player about appropriate conduct. By
acknowledging that he was “constantly being observed by
others,” Kennedy plainly understood that demonstrative
communication fell within the compass of his professional
obligations. And tellingly, Kennedy’s insistence that his
demonstrative speech occur in view of students and parents
suggests that Kennedy prayed pursuant to his responsibility
to serve as a role model and moral exemplar. Were that not
evident enough from Kennedy’s rejection of BSD’s
accommodations, Kennedy’s off-field conduct bolsters the
inference. In particular, his media appearances and prayer
in the BHS bleachers (while wearing BHS apparel and
surrounded by others) signal his intent to send a message to
students and parents about appropriate behavior and what he
values as a coach.
Practically speaking, Kennedy’s job as a football coach
was also akin to being a teacher. See Grossman v. S. Shore
Pub. Sch. Dist., 507 F.3d 1097, 1100 (7th Cir. 2007) (“Staff
that interact with students play a role similar to teachers.”).
“While at the high school” he was “not just any ordinary
citizen.” Peloza v. Capistrano Unified Sch. Dist., 37 F.3d
517, 522 (9th Cir. 1994). He was “one of those especially
respected persons chosen to teach” on the field, in the locker
room, and at the stadium. Id. He was “clothed with the
mantle of one who imparts knowledge and wisdom.” Id.Like others in this position, “expression” was Kennedy’s
“stock in trade.” Johnson, 658 F.3d at 967. Kennedy’s
expressions also carried weight—as the district court said,
KENNEDY V. BREMERTON SCH. DIST. 27
“the coach is more important to the athlete than the
principal.” See also Br. of Americans United for Separation
of Church and State et al. as Amici Curiae Supporting
Appellee at 7‒8 [hereinafter AUSCS Br.] (former BHS
player states that Kennedy was a “parental figure” to the
team).
As a high school football coach, it was also Kennedy’s
duty to use his words and expressions to “instill[] values in
the team.” Borden v. Sch. Dist. of Tp. of E. Brunswick,
523 F.3d 153, 173 n.15 (3rd Cir. 2008). As amici observe,
“many mothers look to the coaches of their son’s football
team as the last best hope to show their son[s] what it means
to become a man—a real man[.]” AUSCS Br. at 7 (quoting
John Harbaugh, Why Football Matters, Balt. Ravens (Apr.
22, 2015), http://tinyurl.com/kn5fdhh). The record reflects
that Kennedy pursued that task. For example, Kennedy gave
motivational speeches to students and spectators after the
games. Moreover, BHS players did not pray on their own in
Kennedy’s absence. Rather, the District observed players
praying on the field only at the games where Kennedy
personally elected to do so.
Finally, just as Johnson’s job responsibilities included
“speaking to his class in his classroom during class hours,”
Kennedy’s included speaking demonstratively to spectators
at the stadium after the game through his conduct. Johnson,
658 F.3d at 967. Kennedy’s demonstrative speech thus
occurred “while performing a function” that fit “squarely
within the scope of his position.” Id. After all, Kennedy
spoke at a school event, on school property, wearing BHS-
logoed attire, while on duty as a supervisor, and in the most
prominent position on the field, where he knew it was
inevitable that students, parents, fans, and occasionally the
media, would observe his behavior.
28 KENNEDY V. BREMERTON SCH. DIST.
In sum, Kennedy’s job was multi-faceted, but among
other things it entailed both teaching and serving as a role
model and moral exemplar. When acting in an official
capacity in the presence of students and spectators, Kennedy
was also responsible for communicating the District’s
perspective on appropriate behavior through the example set
by his own conduct.
2. The constitutional significance of Kennedy’s job
duties.
Mindful of those facts, by kneeling and praying on the
fifty-yard line immediately after games while in view of
students and parents, Kennedy was sending a message about
what he values as a coach, what the District considers
appropriate behavior, and what students should believe, or
how they ought to behave. Because such demonstrative
communication fell well within the scope of Kennedy’s
professional obligations, the constitutional significance of
Kennedy’s job responsibilities is plain—he spoke as a public
employee, not as a private citizen, and his speech was
therefore unprotected.
Each of the guideposts we have established in this
context suggests that Kennedy spoke as a public employee.
First, “teachers necessarily act as teachers for purposes of a
Pickering inquiry when [1] at school or a school function,
[2] in the general presence of students, [3] in a capacity one
might reasonably view as official.” Johnson, 658 F.3d at
968. Kennedy’s conduct easily meets all three of these
conditions.
Next, as Johnson and Coomes instruct, if Kennedy’s
“speech ‘owes its existence’ to his position as a teacher, then
[Kennedy] spoke as a public employee, not as a citizen, and
our inquiry is at an end.” Id. at 966 (quoting Garcetti,
KENNEDY V. BREMERTON SCH. DIST. 29
547 U.S. at 421–22). Here, an ordinary citizen could not
have prayed on the fifty-yard line immediately after games,
as Kennedy did, because Kennedy had special access to the
field by virtue of his position as a coach. The record
demonstrates as much. Representatives of a Satanist religion
arrived at the stadium “to conduct ceremonies on the field
after [a] [BHS] football game[.]” They were forced to
abandon this effort after they learned that the field was not
an open forum. Thus, the precise speech at issue—kneeling
and praying on the fifty-yard line immediately after games
while in view of students and parents—could not physically
have been engaged in by Kennedy if he were not a coach.
Kennedy’s speech therefore occurred only because of his
position with the District. 8
Lastly, given that “expression,” as in Johnson, was
Kennedy’s “stock in trade,” the commodity he sold to his
employer for a salary, id. at 967 (internal quotation mark and
alteration omitted), it is similarly non-dispositive of “the
8
Two additional points warrant comment. First, contrary to
Kennedy’s assertions, the forum is relevant because the on-field location
is a required component of Kennedy’s speech, and one that is central to
the message he conveys. Indeed, Kennedy insists that his sincerely held
religious beliefs do not permit him to pray anywhere other than on the
field where the game was just played. The accommodations he refused
signal further temporal and circumstantial requirements concerning his
speech (i.e., that it must be delivered immediately after the game, while
in view of spectators). These features confirm that the relevant
conduct—Kennedy’s demonstrative speech to students and spectators—
owes its existence to Kennedy’s position with the District. Second,
Kennedy’s demonstrative message to students only carries instructive
force due to his position as a coach. Surely, if an ordinary citizen walked
onto the field and prayed on the fifty-yard line, the speech would not
communicate the same message because the citizen would not be clothed
with Kennedy’s authority. See Johnson, 658 F.3d at 968; Evans-
Marshall v. Bd. of Educ., 624 F.3d 332, 340 (6th Cir. 2010).
30 KENNEDY V. BREMERTON SCH. DIST.
question of whether [Kennedy] spoke as a citizen or as an
employee” that the religious content of Kennedy’s message
was not part of his “curriculum,” id. at 967 n.13. Coaches,
like teachers, do not cease acting as coaches “each time the
bell rings or the conversation moves beyond the narrow topic
of curricular instruction.” Id. at 967–68. In any event,
Kennedy’s prayer celebrates sportsmanship, so the content
of Kennedy’s speech arguably falls within Kennedy’s
curriculum. See ER 251 (job description requiring Kennedy
to “exhibit sportsmanlike conduct at all times”).
True, Kennedy spoke in contravention of his
supervisor’s orders, see Dahlia, 735 F.3d at 1075, but that
lone consideration is not enough to transform employee
speech into citizen speech. If it was, there would be no need
for the Garcetti analysis because every First Amendment
retaliation case in the employment context involves some
degree of employer disagreement with the expressive
conduct.
All told, by kneeling and praying on the fifty-yard line
immediately after games, Kennedy was fulfilling his
professional responsibility to communicate demonstratively
to students and spectators. Yet, he “took advantage of his
position to press his particular views upon the
impressionable and captive minds before him.” Johnson,
658 F.3d at 968 (internal quotation marks omitted). In
addition, he “did not act as an ordinary citizen when
‘espousing God as opposed to no God’” under the bright
lights of the BHS football stadium. Id. at 967. Because his
demonstrative speech fell within the scope of his typical job
responsibilities, he spoke as a public employee, and the
District was permitted to order Kennedy not to speak in the
manner that he did. See id. at 967‒70; Tucker v. State of Cal.
Dep’t of Educ., 97 F.3d 1204, 1213 (9th Cir. 1996) (“A
KENNEDY V. BREMERTON SCH. DIST. 31
teacher appears to speak for the state when he or she teaches;
therefore, the department may permissibly restrict such
religious advocacy.”); Peloza, 37 F.3d at 522 (permitting
District to restrict biology teacher’s ability “to discuss his
religious beliefs with students during school time on school
grounds”).
Other circuits agree. In Borden, the Third Circuit
concluded that a coach spoke “pursuant to his official duties
as a coach”—and thus as a public employee—when he
bowed his head and took a knee with his team while they
prayed in the locker room prior to football games. 523 F.3d
at 171 n.13. The coach “concede[d] that the silent acts of
bowing his head and taking a knee [were] tools that he use[d]
to teach his players respect and good moral character.” Id.
at 172. He therefore was fulfilling his responsibilities as a
teacher, as Kennedy is here.
In Evans-Marshall v. Board of Education, 624 F.3d 332(6th Cir. 2010), the Sixth Circuit explained that “[w]hen a
teacher teaches, the school system . . . hires that speech.” Id.
at 340 (internal quotation mark omitted). As a consequence,
“it can surely regulate the content of what is or is not
expressed,” because a teacher is not “the employee and
employer.” Id. (internal quotation marks omitted). For
example, “[w]hen Pickering sent a letter to the local
newspaper criticizing the school board,” the court noted, “he
said something that any citizen has a right to say, and he did
it on his own time and in his own name, not on the school’s
time or in its name.” Id. By contrast, when a teacher
teaches—as Kennedy did through the example of his own
conduct while acting in his capacity as an assistant coach—
“[he] d[oes] something [he] was hired (and paid) to do,
something [he] could not have done but for the Board’s
decision to hire [him] as a public school teacher.” Id.32 KENNEDY V. BREMERTON SCH. DIST.
The Seventh Circuit employed the same reasoning in
Mayer v. Monroe County Community School Corporation,
474 F.3d 477 (7th Cir. 2006). It found “that teachers hire out
their own speech and must provide the service for which
employers are willing to pay.” Id. at 479. It thus held that a
teacher spoke as an employee, not as a citizen, when she
opined on the Iraq war at a “current-events session,
conducted during class hours, [that] was part of her official
duties.” Id. Similarly, Kennedy spoke on the field, at a time
when he was on call, and in a manner that was well within
his job description. Like the teacher in Mayer, he therefore
spoke as a public employee.
Finally, in Doe v. Duncanville Independent School
District, 70 F.3d 402 (5th Cir. 1995), the Fifth Circuit barred
school employees from participating in or supervising
student-initiated prayers that took place after basketball
practice. Id. at 406. It reasoned that “[t]he challenged
prayers take place during school-controlled, curriculum-
related activities that members of the basketball team are
required to attend,” and “[d]uring these activities[,] [District]
coaches and other school employees are present as
representatives of the school and their actions are
representative of [District] policies.” Id. Applying that
reasoning, if a coach speaks as an employee by standing in
the vicinity of student prayer and supervising the students
immediately after a basketball practice, there can be little
question that Kennedy spoke as an employee when he
likewise performed a task that the District hired and paid him
to perform: demonstrative communication with students and
spectators immediately after football games.
3. Kennedy’s counterarguments are not convincing.
Kennedy insists the district court invented “a bright-line
temporal test that strips First Amendment protections from
KENNEDY V. BREMERTON SCH. DIST. 33
‘on the job’ public employees.” That is incorrect. The
district court said “[t]here is no bright-line test . . . on this
issue,” and decided the second Eng factor by asking whether
Kennedy spoke as a public employee or private citizen
“under the totality of the circumstances.” More importantly,
the court did not articulate a temporal dichotomy that
reserves First Amendment rights only for “off-duty”
employees. To illustrate, Kennedy can pray in his office
while he is on duty drawing up plays, pray non-
demonstratively when on duty supervising students, or pray
in “a private location within the school building, athletic
facility, or press box” before and after games, as BHS
offered. He can also write letters to a local newspaper while
on duty as a coach, see Pickering, 391 U.S. at 572‒74, or
privately discuss politics or religion with his colleagues in
the teacher’s lounge, see Rankin v. McPherson, 483 U.S.
378, 388‒92 (1987); Tucker, 97 F.3d at 1213. What he
cannot do is claim the First Amendment’s protections for
private-citizen speech when he kneels and prays on the fifty-
yard line immediately after games in school logoed-attire in
view of students and parents. Cf. Berry v. Dep’t of Soc.
Servs., 447 F.3d 642, 651‒52 (9th Cir. 2006) (upholding a
restriction prohibiting a government employee from
discussing religion with his clients in his government cubicle
in the course of providing them assistance, while explaining
that the employee could still read his Bible “whenever he
does not have a client with him in his cubicle”).
Next, Kennedy observes that “[t]he critical question
under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.” Lane,
134 S. Ct. at 2379. He argues that prayer—“the speech at
issue”—did not “relate[] to” his job, and certainly did not
34 KENNEDY V. BREMERTON SCH. DIST.
constitute “coaching.” 9 But again, where, as here, a teacher
speaks at a school event in the presence of students in a
capacity one might reasonably view as official, we have
rejected the proposition that a teacher speaks as a citizen
simply because the content of his speech veers beyond the
topic of curricular instruction, and instead relates to religion.
Johnson, 658 F.3d at 967‒68; see also Grossman, 507 F.3d
at 1100 (“The First Amendment is not a teacher license for
uncontrolled expression at variance with established
curricular content.” (internal quotation marks omitted));
Mayer, 474 F.3d at 480 (concluding teacher spoke as
employee even though she “had not been hired to buttonhole
cosmetology students in the corridors and hand out tracts
proclaiming that homosexuality is a mortal sin”). Kennedy
also does not dispute that his demonstrative speech taught
students about what he viewed as appropriate conduct. Nor
can he dispute that many players responded as if prayer were
part of the school-sponsored curriculum—they prayed on the
field only when Kennedy elected to do so.
Finally, Kennedy insists it is irrelevant that he had access
to the field only by virtue of his position because Lane
establishes that the critical question is whether his speech
was within the ordinary scope of his duties. For the reasons
explained above, Kennedy’s speech was within the ordinary
scope of his duties. In any event, Kennedy overlooks
Coomes, which affirmed that if a plaintiff’s speech “owes its
9
Kennedy elsewhere acknowledges that whether a public employee
speaks “as a citizen” does not turn on the content of the speech. Kennedy
may then be arguing that the act of praying itself is not related to his job.
That argument fails because demonstratively speaking to students and
spectators after games through the example set by his own conduct is
within the scope of Kennedy’s job responsibilities.
KENNEDY V. BREMERTON SCH. DIST. 35
existence to [his] position as a teacher, then [he] spoke as a
public employee, not as a citizen, and our inquiry is at an
end.” 10 816 F.3d at 1260 (internal quotation marks and
alterations omitted).
In sum, when Kennedy kneeled and prayed on the fifty-
yard line immediately after games while in view of students
and parents, he spoke as a public employee, not as a private
citizen, and his speech therefore was constitutionally
unprotected. 11
CONCLUSION
On Friday nights, many cities and towns across America
temporarily shut down while communities gather to watch
high school football games. Students and families from all
walks of life join “to root for a common cause” and admire
the young people who step proudly onto the field. Santa Fe
Ind. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000). While we
“recognize the important role that public worship plays in
many communities, as well as the sincere desire to include
public prayer as a part of [these] occasions,” such activity
can promote disunity along religious lines, and risks
alienating valued community members from an environment
10
We issued Coomes nearly two years after the Supreme Court
issued Lane. Additionally, Coomes is more factually analogous than
Lane because Coomes involved speech by a public-school official.
11
We emphasize that our conclusion neither relies on, nor should be
construed to establish, any bright-line rule. As our analysis
demonstrates, the second Eng factor requires a practical, fact-intensive
inquiry into the nature and scope of a plaintiff’s job responsibilities. It
also requires a careful examination of the precise speech at issue. We
also continue to recognize that “speech by a public employee, even a
teacher, does not always represent, or even appear to represent, the views
of the state.” Tucker, 97 F.3d at 1213.
36 KENNEDY V. BREMERTON SCH. DIST.
that must be open and welcoming to all. Id. at 307. That is
why the “preservation and transmission of religious beliefs
and worship is a responsibility and a choice committed to the
private sphere, which itself is promised freedom to pursue
that mission.” Lee v. Weisman, 505 U.S. 577, 589 (1992).
As for the task at hand, we hold that Kennedy spoke as a
public employee when he kneeled and prayed on the fifty-
yard line immediately after games while in view of students
and parents. Kennedy therefore cannot show a likelihood of
success on the merits of his First Amendment retaliation
claim. We AFFIRM the district court’s order denying
Kennedy’s motion for a preliminary injunction. Appellant
shall bear costs on appeal. Fed. R. App. P. 39(a)(2).
M. SMITH, Circuit Judge, specially concurring:
I write separately to share my view that BSD’s actions
were also justified to avoid violating the Establishment
Clause. Kennedy’s claim therefore fails on the additional
ground that the District can satisfy the fourth Eng factor. See
Eng v. Cooley, 552 F.3d 1062, 1071‒72 (9th Cir. 2009)
(asking whether the state has an adequate justification for
restricting the employee’s speech). I also write to share a
few thoughts about the role of the Establishment Clause in
protecting the rights of all Americans to worship (or not
worship) as they see fit.
I. Governing Law
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion.” U.S.
Const. amend. I. The Clause applies against the states, and
therefore their public school systems, pursuant to the
KENNEDY V. BREMERTON SCH. DIST. 37
Fourteenth Amendment. See Wallace v. Jaffree, 472 U.S.
38, 49‒50 (1985). The Clause “mandates governmental
neutrality between religion and religion, and between
religion and nonreligion.” McCreary Cty., Ky. v. Am. Civil.
Liberties Union of Ky., 545 U.S. 844, 860 (2005) (quoting
Epperson v. Ark., 393 U.S. 97, 104 (1968)) (internal
quotation marks omitted). “The Court has been particularly
vigilant in monitoring compliance with the Establishment
Clause in elementary and secondary schools.” Edwards v.
Aguillard, 482 U.S. 578, 583‒84 (1987). In that setting,
“[t]he State exerts great authority and coercive power
through mandatory attendance requirements, and because of
the students’ emulation of teachers as role models and the
children’s susceptibility to peer pressure.” Id. at 584.
Accordingly, the Clause “proscribes public schools from
conveying or attempting to convey a message that religion
or a particular religious belief is favored or preferred.” Lee
v. Weisman, 505 U.S. 577, 604‒05 (1992) (Blackmun, J.,
concurring) (internal quotation marks and emphasis
omitted).
Under the fourth Eng factor, the District can escape
potential liability if it can show that it had an adequate
justification for treating Kennedy differently from other
members of the general public. Eng, 552 F.3d at 1071‒72.
“[A] state interest in avoiding an Establishment Clause
violation may be characterized as compelling, and therefore
may justify content-based discrimination.” Good News Club
v. Milford Cent. Sch., 533 U.S. 98, 112 (2001) (internal
quotation marks omitted); see also Peloza v. Capistrano
Unified Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994) (“The
38 KENNEDY V. BREMERTON SCH. DIST.
school district’s interest in avoiding an Establishment Clause
violation trumps [a teacher’s] right to free speech.”). 1
Santa Fe Independent School District v. Doe, 530 U.S.
290 (2000), describes the framework for assessing whether
BSD would be liable for an Establishment Clause violation
if Kennedy were to resume kneeling and praying on the fifty-
yard line immediately after games in the presence of students
and spectators. See id. at 315 (asking whether the
“continuation of” prayer at school event would violate the
Establishment Clause).
In Santa Fe, the plaintiffs challenged a school district
policy that permitted, but did not require, a student to deliver
a prayer over the public address system before each varsity
football game. Id. at 294. The “Prayer at Football Games”
policy “authorized two student elections, the first to
determine whether ‘invocations’ should be delivered, and
the second to select the spokesperson to deliver them.” Id.
at 297 (internal quotation marks omitted). After the students
had voted in favor of prayer and selected a speaker, the
school district implemented two changes. It omitted the
1
The parties disagree as to whether the District must show an actual
Establishment Clause violation, see Good News, 533 U.S. at 112‒13, or
merely a legitimate interest in avoiding an Establishment Clause
violation, see Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384, 394 (1993) (noting the Court’s suggestion in a prior case
that “the interest of the State in avoiding an Establishment Clause
violation may be a compelling one justifying an abridgement of free
speech otherwise protected by the First Amendment.” (internal quotation
marks and alteration omitted)); Berry v. Dep’t of Soc. Servs., 447 F.3d
642, 651 (9th Cir. 2006) (holding that the government’s “need to avoid
possible violations of the Establishment Clause” justified a restriction on
employee speech). I do not reach this issue because a resumption of
Kennedy’s conduct would clearly result in an actual Establishment
Clause violation.
KENNEDY V. BREMERTON SCH. DIST. 39
word “prayer” from the title and amended the policy to refer
to “‘messages’ and ‘statements’ as well as ‘invocations.’”
Id. at 298 (internal quotation marks omitted).
To assess whether the amended policy violated the
Establishment Clause, the Court asked whether an objective
student observer who was familiar with the history and
context of the school’s conduct would perceive that “prayer
is, in actuality, encouraged by the school.” Id. at 308. Put
differently, the relevant question was “whether an objective
observer, acquainted with the text, legislative history, and
implementation of the [policy], would perceive it as a state
endorsement of prayer in public schools.” Id. (emphasis
added) (internal quotation marks omitted). Applying that
rule, the Court held that “an objective Santa Fe High School
student w[ould] unquestionably perceive the inevitable
pregame prayer as stamped with her school’s seal of
approval.” Id.
The Court first considered the setting. The prayer would
be “delivered to a large audience assembled as part of a
regularly scheduled, school-sponsored function conducted
on school property.” Id. at 307. The message would also be
“broadcast over the school’s public address system,” which
was “subject to the control of school officials.” Id. The
pregame ceremony would be “clothed in the traditional
indicia of school sporting events, which generally include
not just the team, but also cheerleaders and band members
dressed in uniforms sporting the school name and mascot.”
Id. at 308. Further, the school’s name would be emblazoned
on the field and the crowd would be “waving signs
displaying the school name.” Id. The upshot, said the Court,
was that an objective audience member would perceive the
pregame prayer as a public expression “delivered with the
approval of the school administration.” Id.
40 KENNEDY V. BREMERTON SCH. DIST.
The text and purpose of the policy reinforced that
conclusion. The express purpose of the pregame message
was to “solemnize the event.” Id. at 306. Yet tellingly, the
only message type the text endorsed was an “invocation,”
and “in the past at Santa Fe High School, an ‘invocation’
ha[d] always entailed a focused religious message.” Id. at
306‒07 (internal quotation marks omitted). The Court also
noted that the school regulated the content of the message.
Among other things, the message had to “establish the
appropriate environment for competition.” Id. at 306
(internal quotation marks omitted). The school also required
that the pregame message “promote good sportsmanship.”
Id.
The history and context of the policy bolstered the
conclusion that an objective observer would perceive the
school to be encouraging prayer. The school had a “long-
established tradition of sanctioning student-led prayer at
varsity football games,” id. at 315, and the policy itself had
evolved from the “office of ‘Student Chaplain’ to the
candidly titled ‘Prayer at Football Games’ regulation,” id. at
309. The Court noted that the prayers were possible only
because the school board had chosen to give the students the
opportunity to deliver pregame messages. Id. With that
context, the Court said it was “reasonable to infer that the
specific purpose of the policy was to preserve a popular
state-sponsored religious practice.” Id. (internal quotation
marks omitted).
Lastly, the Court was “persuaded that the delivery of a
pregame prayer has the improper effect of coercing those
present to participate in an act of religious worship.” Id. at
312. According to the Court, some nonadherents were likely
required to attend the games, “such as cheerleaders,
members of the band, and, of course, the team members
KENNEDY V. BREMERTON SCH. DIST. 41
themselves.” Id. at 311. Even those who were not so
required would “feel immense social pressure,” the Court
said, “to be involved in the extracurricular event that is
American high school football.” Id. (internal quotation
marks omitted). So, by allowing the prayer to be delivered,
the district was impermissibly forcing students to choose
“between attending these games and avoiding [a potentially]
personally offensive religious ritual[].” Id. at 312.
Mindful of the totality of these circumstances, the Court
concluded that “the realities of the situation plainly reveal
that [the district’s] policy involves both perceived and actual
endorsement of religion.” Id. at 305. It therefore violated
the Establishment Clause. Id. at 316.
II. Application
Here, an objective BHS student familiar with the history
and context of Kennedy’s conduct would perceive his
practice of kneeling and praying on the fifty-yard line
immediately after games in view of students and spectators
as District endorsement of religion or encouragement of
prayer. The District therefore justifiably restricted
Kennedy’s speech to avoid violating the Establishment
Clause.
A. The setting, context, and history support the
perception that Kennedy’s conduct would be
viewed as state endorsement of religion.
The setting supports this conclusion. If Kennedy’s
practice were to resume, an objective student would observe
a public-school employee in BHS-logoed attire
demonstratively praying in front of “a large audience
assembled as part of a regularly scheduled, school-sponsored
function conducted on school property.” Id. at 307. Based
42 KENNEDY V. BREMERTON SCH. DIST.
on previous experience, Kennedy’s players would likely join
him, meaning he would likely be surrounded by a majority
of the team. The speech would also occur at the most
prominent location on the field during a time when Kennedy
is responsible for supervising players. Lastly, the scene
would likely exhibit “the traditional indicia of school
sporting events,” including “cheerleaders and band members
dressed in uniforms,” an audience “waving signs displaying
the school name,” and the school’s name or initials “written
in large print across the field and on banners and flags.” Id.
at 308.
The context would bolster the perception that the District
was endorsing religion. An objective observer would know
that Kennedy had access to the field only by virtue of his
position as a coach, that a Satanist group had been denied
such access, and that Kennedy insists on demonstratively
praying only while in view of students and spectators. True,
in contrast to Santa Fe, the District would not be authorizing
or regulating the content of Kennedy’s prayers. See 530 U.S.
at 306‒07. Still, an objective observer would know that it is
Kennedy’s professional duty to communicate
demonstratively to students and spectators after games, and
that use of the field, like use of the public address system, is
“subject to the control of school officials.” Id. at 307.
The relevant history would add to the perception that the
District encourages prayer. An objective observer would
know that during the previous eight years, Kennedy led and
participated in locker-room prayers, regularly prayed on the
fifty-yard line, and eventually led a larger spiritual exercise
at midfield after each game. BSD states that it was not aware
of this conduct until 2015, but if Kennedy were to resume
his practice of praying at midfield, an objective student could
reasonably infer that the District was ratifying the religious
KENNEDY V. BREMERTON SCH. DIST. 43
exercises that Kennedy had previously conducted. This
inference would follow because the District would be
acquiescing to Kennedy’s conduct knowing full well that the
players prayed only when Kennedy elected to do so, and that
the previous practice started as an individual prayer but
evolved into an orchestrated session of faith. 2
Lastly, by permitting Kennedy’s conduct, the District
would be condoning the same coercion identified in Santa
Fe. As was true in that case, various students would be
required to attend the games, “such as cheerleaders,
members of the band, and, of course, the team members
themselves.” Id. at 311. They would see an important
District representative display “the distinctively Christian
prayer form” 3 in the most prominent location on the field,
2
Again, perhaps bolstering this inference, an objective observer
would likely see Kennedy surrounded by his players. An objective
observer familiar with the relevant history would also know that the
football team had engaged in pre- and post-game prayers “as a matter of
school tradition,” and that both activities apparently “predated”
Kennedy’s involvement with the football program. With that context, an
objective observer might reasonably perceive that the District had
changed its mind regarding the propriety of Kennedy’s conduct. This is
particularly so because BSD had previously stated in a letter to the
Bremerton community that it could not permit Kennedy’s conduct lest it
be considered to be endorsing religion.
3
Amici note that Kennedy employed “the distinctively Christian
prayer form of kneeling with hands clasped and head bowed—a pose
with deep historical significance and symbolic meaning within
Christianity.” Br. of Americans United for Separation of Church and
State et al. as Amici Curiae Supporting Appellee at 12. By contrast, Jews
“do not typically kneel,” and instead “stand for prayer and often sway.”
Id. at 13. For Muslims, “the typical prayer posture is prostration, though
prayer also involves standing and bowing.” Id. Prayer in the Bahá’í faith
“involves kneeling, bowing, and prostration.” Id. Hindus and Buddhists
“pray in the seated, cross-legged lotus position.” Id. Finally, it is worth
44 KENNEDY V. BREMERTON SCH. DIST.
despite the community’s religious diversity. This act would
“send[] the ancillary message to members of the audience
who are nonadherents that they are outsiders, not full
members of the political community, and an accompanying
message to adherents that they are insiders, favored
members of the political community.” Id. at 309‒10
(internal quotation marks omitted). Kennedy might not
“intentionally involve students in his on-duty religious
activities,” (emphasis added), but I have no reason to believe
that the pressure emanating from his position of authority
would dissipate. Accordingly, many students would feel
pressure to join Kennedy’s religious activity to avoid
marking themselves as outsiders or alienating themselves
from the team. The record suggests that this is precisely
what occurred when Kennedy first started praying on the
field in 2008. See Kennedy Decl. at 3 (“Over time, the
number of players who gathered near me after the game grew
to include the majority of the team.”). Yet the Constitution
forbids Kennedy from forcing students whose beliefs are not
the same as his to compromise their personal beliefs or
identify themselves as religious dissenters.
In sum, if Kennedy were to resume kneeling and praying
on the fifty-yard line immediately after games while in view
of students and spectators, an objective student observer
would see an influential supervisor do something no
ordinary citizen could do—perform a Christian religious act
on secured school property while surrounded by players—
simply because he is a coach. Irrespective of the District’s
views on that matter, a reasonable observer would conclude
in light of the history and context surrounding Kennedy’s
noting that the Bremerton community includes individuals who identify
as atheist or as agnostic. Id. at 14.
KENNEDY V. BREMERTON SCH. DIST. 45
conduct that the District, “in actuality,” favors religion, and
prefers Christianity in particular. 4 Santa Fe, 530 U.S. at 308.
B. Kennedy’s counterarguments are not persuasive.
Kennedy contends that an objective observer would
“conclude (at most) that he is engaged in a personal moment
of silence” because students would not be directly coerced
to pray, the District would not be regulating the content of
his religious expression, and the prayer would not be the
product of a school policy, in contrast to the prayer at issue
in Santa Fe. These observations may be correct, but they
have little significance when considered within the totality
of the circumstances. Indeed, they are rebutted by the
evidence of indirect coercion, and the fact that an objective
observer familiar with the context would know it is
Kennedy’s professional duty to communicate
demonstratively to students and spectators after games.
Next, Kennedy insists that kneeling and praying on the
fifty-yard line would not be viewed as state endorsement of
religion because a coach’s expressive conduct around a
playing field is quintessential personal speech. Kennedy
notes that some athletes point to the heavens after a
4
Borden v. Sch. Dist. of Tp. of E. Brunswick, 523 F.3d 153 (3rd Cir.
2008), supports this conclusion. There, the Third Circuit held that a
football coach impermissibly endorsed religion by bowing his head and
taking a knee while his players engaged in prayer. Id. at 174. Like
Kennedy, the coach had a history of leading team prayers, yet stated that
he wanted to bow and kneel only to show respect to his team. Id. at 177.
The court concluded that the history gave rise “to a reasonable inference
that [the coach’s] requested conduct is meant to preserve a popular state-
sponsored religious practice of praying with his team.” Id. (internal
quotation marks omitted). In light of Kennedy’s history, an objective
observer could draw the same inference here, notwithstanding
Kennedy’s statement that he seeks only to pray silently and alone.
46 KENNEDY V. BREMERTON SCH. DIST.
touchdown, or kneel when a player is being treated for an
injury, yet fans do not generally view either of those actions
as having been made on behalf of the team. Even if that is
true, it says little about the speech at issue here, and it ignores
entirely the relevant history and context surrounding
Kennedy’s speech. See Santa Fe, 530 U.S. at 315 (holding
courts may not “turn a blind eye to the context in which [the
conduct] arose”).
Lastly, Kennedy contends that the remedy for any
inference of endorsement “is to educate the audience rather
than squelch the speaker.” Hills v. Scottsdale Unified Sch.
Dist. No. 48, 329 F.3d 1044, 1055 (9th Cir. 2003) (quoting
Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d
1295, 1299‒1300 (7th Cir. 1993)). However, we have held
that a disclaimer is not sufficient to alleviate Establishment
Clause concerns in the graduation speech context, Lassonde
v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 984 (9th Cir.
2003), and it is similarly unlikely that a disclaimer would
cure the perception of endorsement at issue here. Once
again, an objective student observer would still see a
respected District employee do something no ordinary
citizen could do—perform a distinctively Christian religious
act on a secured portion of school property while supervising
students—simply because he is a BHS football coach.
Moreover, because Kennedy’s speech would occur in the
course of his ordinary responsibilities and he would be
speaking in his capacity as a public employee, his conduct
would be attributed to the District, thus diluting the effect of
any potential disclaimer. See Borden, 523 F.3d at 177 n.20
(“As an employee of the School District as both a coach and
tenured teacher, Borden’s actions can be imputed to the
School District. For this reason, Borden’s claim that the
School District could remove any Establishment Clause
violation by writing a disclaimer saying that Borden’s
KENNEDY V. BREMERTON SCH. DIST. 47
speech does not represent the ideals of the School District is
simply wrong.”); Doe v. Duncanville Ind. Sch. Dist., 70 F.3d
402, 406 (5th Cir. 1995) (stating that during school-
sponsored sporting events coaches “are present as
representatives of the school and their actions are
representative of [school district] policies”). 5
In sum, the District can satisfy the fourth Eng factor. It
justifiably restricted Kennedy’s speech to avoid violating the
Establishment Clause. An objective BHS student familiar
with the relevant history and context would perceive
Kennedy’s conduct to reflect school endorsement of
religion, encouragement of prayer, and a preference for one
particular faith. 6
5
I nonetheless emphasize that schools should not simply “throw up
their hands because of the possible misconceptions about endorsement
of religion.” Hills, 329 F.3d at 1055. Instead, they should endeavor “to
teach [students] about the first amendment, about the difference between
private and public action, [and] about why we tolerate divergent views,”
as BSD’s letter to the Bremerton community admirably sought to do
here. Id. (first alteration in original) (quoting Hedges, 9 F.3d at 1299).
“Free speech, free exercise, and the ban on establishment are quite
compatible when the government remains neutral and educates the
public about the reasons.” Id. (quoting Hedges, 9 F.3d at 1300).
However, in this instance, BSD would not be remaining neutral in the
eyes of an objective observer if it were to permit Kennedy to resume his
on-field prayers.
6
The District also contends that Kennedy’s conduct fails the so-
called “coercion” test and the three-prong framework from Lemon v.
Kurtzman, 403 U.S. 602 (1971). I do not address those arguments in
light of the analysis outlined above.
48 KENNEDY V. BREMERTON SCH. DIST.
III. Averting state establishment of religion
ultimately safeguards religious liberty.
Some readers may find this conclusion disconcerting.
The record reflects, after all, that Coach Kennedy cared
deeply about his students, and that his conduct was well-
intentioned and flowed from his sincerely-held religious
beliefs. Given those factors, it is worth pausing to remember
that the Establishment Clause is designed to advance and
protect religious liberty, not to injure those who have
religious faith. Indeed, history has taught us “that one of the
greatest dangers to the freedom of the individual to worship
in his own way lay[s] in the Government’s placing its official
stamp of approval upon one particular kind of prayer or one
particular form of religious services.” Engel v. Vitale,
370 U.S. 421, 429 (1962).
It is a lamentable fact of human history that whenever a
religious majority controls the government, it frequently
uses the civil power to persecute religious minorities and
non-believers. 7 The Founders who met in Philadelphia to
negotiate the terms of the U.S. Constitution, and the men
who later met in ratifying conventions in the several states,
were well aware that many hundreds of thousands of people
had lost their lives, been tortured, or had otherwise been
deprived of their civil rights by governments in the control
of some religious faith, during the then recent European wars
of religion. These cataclysmic events led writers such as
Interested readers might find Will (and later Will and Ariel)
7
Durant’s epic series on the history of civilization, with separate volumes
entitled The Age of Faith, The Renaissance, The Reformation, The Age
of Reason Begins, The Age of Louis XIV, The Age of Voltaire, and
Rousseau and Revolution, amongst others, an excellent source to learn
more about this subject. See WILL DURANT & ARIEL DURANT, THE
STORY OF CIVILIZATION (MJF Books 1993).
KENNEDY V. BREMERTON SCH. DIST. 49
Thomas Hobbes (1588–1679) and John Locke (1632–1704),
each of whom was familiar to the Founders, to argue that
state coercion is an inappropriate and ineffective tool for
enforcing religious conformity, since religious belief must
be sincerely held to be truly efficacious.
In some ways, the United States is a nation whose very
existence is due to religious conflict because most of the
colonies were initially settled by persons who came here to
escape religious persecution in Europe. When such colonists
came, they generally settled amongst those who held similar
religious beliefs, and the dominant religious group
controlled the civil government, just as had been the case in
Europe. Thus, Anglicans initially dominated in Virginia,
Puritans in Massachusetts, Quakers in Pennsylvania,
Baptists in Rhode Island, and Roman Catholics in Maryland.
But when, for example, the Puritan leaders of the
Massachusetts Bay Colony were challenged by religious
dissenters, such as Roger Williams and Anne Hutchinson,
the dissidents were banished from, and persecuted by, the
Colony over disagreements concerning theology, as were
Catholics and non-Puritans generally. Violence was
frequently employed in many of the colonies to suppress
religious dissenters.
Seeking to make America a more true refuge from
religious persecution, some early leaders began to advocate
for the disentanglement of religion and government. For
example, in responding to a bill introduced by Patrick Henry
calling for state support for “Teachers of the Christian
Religion,” future president James Madison penned an essay
arguing that Virginia should not financially support
Christian instruction. See James Madison, Memorial and
Remonstrance Against Religious Assessments (June 20,
1785), in 5 THE FOUNDERS’ CONSTITUTION 82 (P. Kurland
50 KENNEDY V. BREMERTON SCH. DIST.
& R. Lerner eds. 1986). Madison asked rhetorically: “Who
does not see that the same authority which can establish
Christianity, in exclusion of all other Religions, may
establish with the same ease any particular sect of Christians,
in exclusion of all other Sects?” Id. He also observed that
Henry’s bill was “a departure from that generous policy,
which, offering an Asylum to the persecuted and oppressed
of every Nation and Religion, promised a lustre to our
country.” Id. at 83.
After Henry’s bill was defeated, the Virginia legislature
eventually took up Thomas Jefferson’s plan for the
separation of church and state. In 1786, the Virginia Bill for
Establishing Religious Freedom was adopted. Among other
things, that Bill provided:
We the General Assembly of Virginia do
enact, that no man shall be compelled to
frequent or support any relig[i]ous Worship
place or Ministry whatsoever, nor shall be
enforced, restrained, molested, or burthened
in his body or goods, nor shall otherwise
suffer on account of his religious opinions or
belief, but that all men shall be free to
profess, and by argument to maintain their
opinions in matters of religion, and that the
same shall in no wise diminish, enlarge, or
affect their civil capacities.
Id. at 77. Jefferson wrote that the law was “meant to
comprehend, within the mantle of its protection, the Jew and
the Gentile, the Christian and Mahometan, the Hindoo, and
Infidel of every denomination.” Thomas Jefferson,
Autobiography (1821), in 5 THE FOUNDERS’ CONSTITUTION,
at 85.
KENNEDY V. BREMERTON SCH. DIST. 51
Madison endeavored to make Jefferson’s vision a part of
the Constitution. For example, Article VI of the Constitution
requires that all federal officials “shall be bound by Oath or
Affirmation, to support this Constitution; but no religious
Test shall ever be required as a Qualification to any Office
or public Trust under the United States.” U.S. Const. art. VI,
cl. 3. Later, what became the First Amendment to the
Constitution included the words: “Congress shall make no
law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .” Id. amend. I. The purpose of
these clauses is to protect our freedom of worship
unhindered by the government.
This very brief glimpse of one aspect of our history is
intended to show that, having learned from the harmful
effects of past religious conflicts, our nation’s Founders
included in our foundational law safeguards against religious
oppression by a government (or arms of that government)
under the control of a religious majority that would punish
or severely limit our right to worship (or not worship) as we
please. This is a priceless bulwark of our personal freedom,
and I hope that interested readers will come to appreciate the
Establishment Clause as a good friend and protector, and not
as an enemy, of one of their most precious rights and
liberties.
IV. Conclusion
Striking an appropriate balance between ensuring the
right to free speech and avoiding the endorsement of a state
religion has never been easy. Thankfully, we no longer
resolve these conflicts with violence, but instead use courts
of law, where parties make arguments in free and open
hearings to address their differences. To that end, I
commend the lawyers in these proceedings for the
exceptional job they have done.
52 KENNEDY V. BREMERTON SCH. DIST.
At the end of the day, I believe that a resumption of
Kennedy’s conduct would violate the Establishment Clause.
I would therefore deny the preliminary injunction on the
additional ground that BSD can satisfy the fourth Eng factor.