Kennedy v. Bremerton School Dist. ( 2022 )

7/13/2022 5:32:36 PM
Compare Results
Old File: New File:
21-418.pdf 21-418_new.pdf
versus
75 pages (1.45 MB) 75 pages (1.50 MB)
6/27/2022 8:06:03 AM 7/13/2022 5:30:42 PM
Total Changes Content Styling and
Annotations
1
1 Replacement
0
Styling
0
Insertions
0
Annotations
0
Deletions
Go to First Change (page 63)
file://NoURLProvided[7/13/2022 5:32:36 PM]
(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KENNEDY v. BREMERTON SCHOOL DISTRICT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–418. Argued April 25, 2022—Decided June 27, 2022
Petitioner Joseph Kennedy lost his job as a high school football coach in
the Bremerton School District after he knelt at midfield after games to
offer a quiet personal prayer. Mr. Kennedy sued in federal court, al-
leging that the District’s actions violated the First Amendment’s Free
Speech and Free Exercise Clauses. He also moved for a preliminary
injunction requiring the District to reinstate him. The District Court
denied that motion, and the Ninth Circuit affirmed. After the parties
engaged in discovery, they filed cross-motions for summary judgment.
The District Court found that the “ ‘sole reason’ ” for the District’s de-
cision to suspend Mr. Kennedy was its perceived “risk of constitutional
liability” under the Establishment Clause for his “religious conduct”
after three games in October 2015. 443 F. Supp. 3d 1223, 1231. The
District Court granted summary judgment to the District and the
Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear
the case en banc over the dissents of 11 judges. 4 F. 4th 910, 911.
Several dissenters argued that the panel applied a flawed understand-
ing of the Establishment Clause reflected in Lemon v. Kurtzman, 403
U. S. 602, and that this Court has abandoned Lemon’s “ahistorical,
atextual” approach to discerning Establishment Clause violations. 4
F. 4th, at 911, and n. 3.
Held: The Free Exercise and Free Speech Clauses of the First Amend-
ment protect an individual engaging in a personal religious observance
from government reprisal; the Constitution neither mandates nor per-
mits the government to suppress such religious expression. Pp. 11–32.
(a) Mr. Kennedy contends that the District’s conduct violated both
the Free Exercise and Free Speech Clauses of the First Amendment.
Where the Free Exercise Clause protects religious exercises, the Free
Speech Clause provides overlapping protection for expressive religious
2 KENNEDY v. BREMERTON SCHOOL DIST.
Syllabus
activities. See, e.g., Widmar v. Vincent, 454 U. S. 263, 269, n. 6. A
plaintiff must demonstrate an infringement of his rights under the
Free Exercise and Free Speech Clauses. If the plaintiff carries his or
her burden, the defendant must show that its actions were nonetheless
justified and appropriately tailored. Pp. 11–30.
(1) Mr. Kennedy discharged his burden under the Free Exercise
Clause. The Court’s precedents permit a plaintiff to demonstrate a
free exercise violation multiple ways, including by showing that a gov-
ernment entity has burdened his sincere religious practice pursuant to
a policy that is not “neutral” or “generally applicable.” Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879–
881. Failing either the neutrality or general applicability test is suffi-
cient to trigger strict scrutiny, under which the government must
demonstrate its course was justified by a compelling state interest and
was narrowly tailored in pursuit of that interest. See, e.g., Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546.
Here, no one questions that Mr. Kennedy seeks to engage in a sin-
cerely motivated religious exercise involving giving “thanks through
prayer” briefly “on the playing field” at the conclusion of each game he
coaches. App. 168, 171. The contested exercise here does not involve
leading prayers with the team; the District disciplined Mr. Kennedy
only for his decision to persist in praying quietly without his students
after three games in October 2015. In forbidding Mr. Kennedy’s brief
prayer, the District’s challenged policies were neither neutral nor gen-
erally applicable. By its own admission, the District sought to restrict
Mr. Kennedy’s actions at least in part because of their religious char-
acter. Prohibiting a religious practice was thus the District’s unques-
tioned “object.” The District explained that it could not allow an on-
duty employee to engage in religious conduct even though it allowed
other on-duty employees to engage in personal secular conduct. The
District’s performance evaluation after the 2015 football season also
advised against rehiring Mr. Kennedy on the ground that he failed to
supervise student-athletes after games, but any sort of postgame su-
pervisory requirement was not applied in an evenhanded way.
Pp. 12–14. The District thus conceded that its policies were neither
neutral nor generally applicable.
(2) Mr. Kennedy also discharged his burden under the Free
Speech Clause. The First Amendment’s protections extend to “teach-
ers and students,” neither of whom “shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Tinker v.
Des Moines Independent Community School Dist., 393 U. S. 503, 506.
But teachers and coaches are also government employees paid in part
to speak on the government’s behalf and to convey its intended mes-
Cite as: 597 U. S. ____ (2022) 3
Syllabus
sages. To account for the complexity associated with the interplay be-
tween free speech rights and government employment, this Court’s de-
cisions in Pickering v. Board of Ed. of Township High School Dist. 205,
Will Cty., 391 U. S. 563, and Garcetti v. Ceballos, 547 U. S. 410, and
related cases suggest proceeding in two steps. The first step involves
a threshold inquiry into the nature of the speech at issue. When an
employee “speaks as a citizen addressing a matter of public concern,”
the Court’s cases indicate that the First Amendment may be impli-
cated and courts should proceed to a second step. Id., at 423. At this
step, courts should engage in “a delicate balancing of the competing
interests surrounding the speech and its consequences.” Ibid. At the
first step of the Pickering–Garcetti inquiry, the parties’ disagreement
centers on one question: Did Mr. Kennedy offer his prayers in his ca-
pacity as a private citizen, or did they amount to government speech
attributable to the District?
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 v. Franks, 573 U. S. 228, 240. He did
not speak pursuant to government policy and was not seeking to con-
vey a government-created message. He was not instructing players,
discussing strategy, encouraging better on-field performance, or en-
gaged in any other speech the District paid him to produce as a coach.
Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to
Mr. Kennedy’s responsibilities as a public employee. Garcetti, 547
U. S., at 421. The timing and circumstances of Mr. Kennedy’s pray-
ers—during the postgame period when coaches were free to attend
briefly to personal matters and students were engaged in other activi-
ties—confirms that Mr. Kennedy did not offer his prayers while acting
within the scope of his duties as a coach. It is not dispositive that
Coach Kennedy served as a role model and remained on duty after
games. To hold otherwise is to posit an “excessively broad job descrip-
tio[n]” by treating everything teachers and coaches say in the work-
place as government speech subject to government control. Garcetti,
547 U. S., at 424. That Mr. Kennedy used available time to pray does
not transform his speech into government speech. Acknowledging that
Mr. Kennedy’s prayers represented his own private speech means he
has carried his threshold burden. Under the Pickering–Garcetti frame-
work, 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. See Lane, 573 U. S., at 242.
Pp. 15–19.
(3) Whether one views the case through the lens of the Free Exer-
cise or Free Speech Clause, at this point the burden shifts to the Dis-
trict. Under the Free Exercise Clause, a government entity normally
4 KENNEDY v. BREMERTON SCHOOL DIST.
Syllabus
must satisfy at least “strict scrutiny,” showing that its restrictions on
the plaintiff’s protected rights serve a compelling interest and are nar-
rowly tailored to that end. See Lukumi, 508 U. S., at 533. A similar
standard generally obtains under the Free Speech Clause. See Reed
v. Town of Gilbert, 576 U. S. 155, 171. The District asks the Court to
apply to Mr. Kennedy’s claims the more lenient second-step Pickering–
Garcetti test, or alternatively, intermediate scrutiny. The Court con-
cludes, however, that the District cannot sustain its burden under any
standard. Pp. 19–30.
i. The District, like the Ninth Circuit below, insists Mr. Ken-
nedy’s rights to religious exercise and free speech must yield to the
District’s interest in avoiding an Establishment Clause violation under
Lemon and its progeny. The Lemon approach called for an examina-
tion of a law’s purposes, effects, and potential for entanglement with
religion. Lemon, 403 U. S., at 612–613. In time, that approach also
came to involve estimations about whether a “reasonable observer”
would consider the government’s challenged action an “endorsement”
of religion. See, e.g., County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593. But—given the
apparent “shortcomings” associated with Lemon’s “ambitiou[s],” ab-
stract, and ahistorical approach to the Establishment Clause—this
Court long ago abandoned Lemon and its endorsement test offshoot.
American Legion v. American Humanist Assn., 588 U. S. ___, ___ (plu-
rality opinion).
In place of Lemon and the endorsement test, this Court has in-
structed that the Establishment Clause must be interpreted by “‘ref-
erence to historical practices and understandings.’ ” Town of Greece v.
Galloway, 572 U. S. 565, 576. A natural reading of the First Amend-
ment suggests that the Clauses have “complementary” purposes, not
warring ones where one Clause is always sure to prevail over the oth-
ers. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13, 15. 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.” Town of Greece, at 575.
The District and the Ninth Circuit erred by failing to heed this guid-
ance. Pp. 19–30.
ii. The District next attempts to justify its suppression of Mr.
Kennedy’s religious activity by arguing that doing otherwise would co-
erce students to pray. The Ninth Circuit did not adopt this theory in
proceedings below and evidence of coercion in this record is absent.
The District suggests that any visible religious conduct by a teacher or
coach should be deemed—without more and as a matter of law—im-
permissibly coercive on students. A rule that the only acceptable gov-
Cite as: 597 U. S. ____ (2022) 5
Syllabus
ernment role models for students are those who eschew any visible re-
ligious expression would undermine a long constitutional tradition in
which learning how to tolerate diverse expressive activities has always
been “part of learning how to live in a pluralistic society.” Lee v. Wes-
iman, 505 U. S. 577, 590. No historically sound understanding of the
Establishment Clause begins to “mak[e] it necessary for government
to be hostile to religion” in this way. Zorach v. Clauson, 343 U. S. 306,
314. Pp. 24–30.
iii.There is no conflict between the constitutional commands of
the First Amendment in this case. There is only the “mere shadow” of
a conflict, a false choice premised on a misconstruction of the Estab-
lishment Clause. School Dist. of Abington Township v. Schempp, 374
U. S. 203, 308 (Goldberg, J., concurring). A government entity’s con-
cerns about phantom constitutional violations do not justify actual vi-
olations of an individual’s First Amendment rights. Pp. 30–31.
(c)Respect for religious expressions is indispensable to life in a free
and diverse Republic. Here, a government entity sought to punish an
individual for engaging in a personal religious observance, based on a
mistaken view that it has a duty to 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 religious exercise and free speech
claims. Pp. 31–32.
991 F. 3d 1004, reversed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and BARRETT, JJ., joined, and in which KA-
VANAUGH, 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.
Cite as: 597 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–418
_________________
JOSEPH A. KENNEDY, PETITIONER v.
BREMERTON SCHOOL DISTRICT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2022]
JUSTICE GORSUCH delivered the opinion of the Court.
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 pe-
riod 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 reason-
able 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 Estab-
lishment Clause require the government to single out pri-
vate 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.
2 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
I
A
Joseph Kennedy began working as a football coach at
Bremerton High School in 2008 after nearly two decades of
service in the Marine Corps. App. 167. Like many other
football players and coaches across the country, Mr. Ken-
nedy made it a practice to give “thanks through prayer on
the playing field” at the conclusion of each game. Id., at
168, 171. 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.” Id., at 168. 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 “ap-
proximately 30 seconds.” Id., at 168–169.
Initially, Mr. Kennedy prayed on his own. See ibid. But
over time, some players asked whether they could pray
alongside him. 991 F. 3d 1004, 1010 (CA9 2021); App. 169.
Mr. Kennedy responded by saying, “‘This is a free country.
You can do what you want.’” Ibid. The number of players
who joined Mr. Kennedy eventually grew to include most of
the team, at least after some games. Sometimes team mem-
bers invited opposing players to join. Other times Mr. Ken-
nedy still prayed alone. See ibid. Eventually, Mr. Kennedy
began incorporating short motivational speeches with his
prayer when others were present. See id., at 170. Sepa-
rately, 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.
Ibid. Mr. Kennedy explained that he “never told any stu-
dent that it was important they participate in any religious
activity.” Ibid. In particular, he “never pressured or en-
couraged any student to join” his postgame midfield pray-
ers. Ibid.
For over seven years, no one complained to the Bremer-
ton School District (District) about these practices. See id.,
Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
at 63–64. 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. See id., at 109, 229. 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. App. 40. First, Mr. Ken-
nedy had provided “inspirational talk[s]” that included
“overtly religious references” likely constituting “prayer”
with the students “at midfield following the completion of
. . . game[s].” Ibid. Second, he had led “students and coach-
ing staff in a prayer” in the locker-room tradition that “pre-
dated [his] involvement with the program.” Id., at 41.
The District explained that it sought to establish “clear
parameters” “going forward.” Ibid. It instructed Mr. Ken-
nedy 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 su-
pervis[ing]” any prayers of students, which students re-
mained 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 reli-
gious conduct” in order to “avoid the perception of endorse-
ment.” 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. Id., at 43. To resolve that
“tension,” the District explained, an employee’s free exer-
cise rights “must yield so far as necessary to avoid school
endorsement of religious activities.” Ibid.
After receiving the District’s September 17 letter, Mr.
Kennedy ended the tradition, predating him, of offering
locker-room prayers. Id., at 40–41, 77, 170–172. He also
ended his practice of incorporating religious references or
4 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
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 post-
game prayer. See id., at 172. 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. Ibid. 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.
See ibid.
On October 14, through counsel, Mr. Kennedy sent a let-
ter 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. Id., at
62–63, 172. He asked the District to allow him to continue
that “private religious expression” alone. Id., at 62. Con-
sistent with the District’s policy, see id., at 48, Mr. Kennedy
explained that he “neither requests, encourages, nor dis-
courages students from participating in” these prayers, id.,
at 64. 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.” Id., at 69. He “told every-
body” that it would be acceptable to him to pray “when the
kids went away from [him].” Id., at 292. 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. Id., at 280–282; see also id.,
at 59. However, Mr. Kennedy objected to the logical impli-
cation of the District’s September 17 letter, which he under-
stood as banning him “from bowing his head” in the vicinity
of students, and as requiring him to “flee the scene if stu-
dents voluntarily [came] to the same area” where he was
praying. Id., at 70. After all, District policy prohibited him
from “discourag[ing]” independent student decisions to
pray. Id., at 44.
Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
On October 16, shortly before the game that day, the Dis-
trict responded with another letter. See id., at 76. The Dis-
trict acknowledged that Mr. Kennedy “ha[d] complied” with
the “directives” in its September 17 letter. Id., at 77. 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.” Id., at 81. The District
did so because it judged that anything less would lead it to
violate the Establishment Clause. Ibid.
B
After receiving this letter, Mr. Kennedy offered a brief
prayer following the October 16 game. See id., at 90. 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.” Ibid.
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. See id., at 82, 297.
This event spurred media coverage of Mr. Kennedy’s di-
lemma and a public response from the District. The District
placed robocalls to parents to inform them that public ac-
cess to the field is forbidden; it posted signs and made an-
nouncements at games saying the same thing; and it had
the Bremerton Police secure the field in future games. Id.,
at 100–101, 354–355. Subsequently, the District superin-
tendent 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.” Id., at 83. The official with
whom the superintendent corresponded acknowledged that
6 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
the “use of a silent prayer changes the equation a bit.” Ibid.
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.” Id., at 88.
On October 23, shortly before that evening’s game, the
District wrote Mr. Kennedy again. It expressed “apprecia-
tion” 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.”
Id., at 90. The letter also admitted that, during Mr. Ken-
nedy’s recent October 16 postgame prayer, his students
were otherwise engaged and not praying with him, and that
his prayer was “fleeting.” Id., at 90, 93. Still, the District
explained that a “reasonable observer” could think govern-
ment 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 con-
duct.” Id., at 91, 93. 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.” Id., at 93–
94.
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.” 991 F. 3d, at 1019; App.
173, 236–239. The superintendent informed the District’s
board that this prayer “moved closer to what we want,” but
nevertheless remained “unconstitutional.” Id., at 96. After
the final relevant football game on October 26, Mr. Kennedy
again knelt alone to offer a brief prayer as the players en-
gaged in postgame traditions. 443 F. Supp. 3d 1223, 1231
(WD Wash. 2020); App. to Pet. for Cert. 182. While he was
praying, other adults gathered around him on the field. See
Cite as: 597 U. S. ____ (2022) 7
Opinion of the Court
443 F. Supp. 3d, at 1231; App. 97. Later, Mr. Kennedy re-
joined his players for a postgame talk, after they had fin-
ished singing the school fight song. 443 F. Supp. 3d, at
1231; App. 103.
C
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 pro-
gram activities.” Ibid. In a letter explaining the reasons
for this disciplinary action, the superintendent criticized
Mr. Kennedy for engaging in “public and demonstrative re-
ligious conduct while still on duty as an assistant coach” by
offering a prayer following the games on October 16, 23, and
26. Id., at 102. The letter did not allege that Mr. Kennedy
performed these prayers with students, and it acknowl-
edged that his prayers took place while students were en-
gaged in unrelated postgame activities. Id., at 103. Addi-
tionally, the letter faulted Mr. Kennedy for not being
willing to pray behind closed doors. Id., at 102.
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.”
Id., at 105. 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.” Ibid. But the Q&A
asserted that the District could not allow Mr. Kennedy to
“engage in a public religious display.” Id., at 105, 107, 110.
Otherwise, the District would “violat[e] the . . . Establish-
ment Clause” because “reasonable . . . students and at-
tendees” might perceive the “district [as] endors[ing] . . . re-
ligion.” Id., at 105.
While Mr. Kennedy received “uniformly positive evalua-
tions” every other year of his coaching career, after the 2015
8 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
season ended in November, the District gave him a poor
performance evaluation. Kennedy v. Bremerton School
Dist., 869 F. 3d 813, 820 (CA9 2017). The evaluation ad-
vised against rehiring Mr. Kennedy on the grounds that he
“‘failed to follow district policy’” regarding religious expres-
sion and “‘failed to supervise student-athletes after
games.’” Ibid. Mr. Kennedy did not return for the next
season. Ibid.II
A
After these events, Mr. Kennedy sued in federal court, al-
leging that the District’s actions violated the First Amend-
ment’s Free Speech and Free Exercise Clauses. App. 145,
160–164. He also moved for a preliminary injunction re-
quiring the District to reinstate him. The District Court
denied that motion, concluding that a “reasonable ob-
server . . . would have seen him as . . . leading an orches-
trated session of faith.” App. to Pet. for Cert. 303. Indeed,
if the District had not suspended him, the court agreed, it
might have violated the Constitution’s Establishment
Clause. See id., at 302–303. On appeal, the Ninth Circuit
affirmed. Kennedy, 869 F. 3d, at 831.
Following the Ninth Circuit’s ruling, Mr. Kennedy sought
certiorari in this Court. The Court denied the petition. But
JUSTICE ALITO, joined by three other Members of the Court,
issued a statement stressing that “denial of certiorari does
not signify that the Court necessarily agrees with the deci-
sion . . . below.” Kennedy v. Bremerton School Dist., 586
U. S. ___, ___ (2019) (slip op., at 1). JUSTICE ALITO ex-
pressed concerns with the lower courts’ decisions, including
the possibility that, under their reasoning, teachers might
be “ordered not to engage in any ‘demonstrative’ conduct of
a religious nature” within view of students, even to the
point of being forbidden from “folding their hands or bowing
their heads in prayer” before lunch. Id., at ___
Cite as: 597 U. S. ____ (2022) 9
Opinion of the Court
(slip op., at 4).
B
After the case returned to the District Court, the parties
engaged in discovery and eventually brought cross-motions
for summary judgment. At the end of that process, the Dis-
trict Court found that the “‘sole reason’” for the District’s
decision to suspend Mr. Kennedy was its perceived “risk of
constitutional liability” under the Establishment Clause for
his “religious conduct” after the October 16, 23, and 26
games. 443 F. Supp. 3d, at 1231.
The court found that reason persuasive too. Rejecting
Mr. Kennedy’s free speech claim, the court concluded that
because Mr. Kennedy “was hired precisely to occupy” an “in-
fluential role for student athletes,” any speech he uttered
was offered in his capacity as a government employee and
unprotected by the First Amendment. Id., at 1237. Alter-
natively, even if Mr. Kennedy’s speech qualified as private
speech, the District Court reasoned, the District properly
suppressed it. Had it done otherwise, the District would
have invited “an Establishment Clause violation.” Ibid.
Turning to Mr. Kennedy’s free exercise claim, the District
Court held that, even if the District’s policies restricting his
religious exercise were not neutral toward religion or gen-
erally applicable, the District had a compelling interest in
prohibiting his postgame prayers, because, once more, had
it “allow[ed]” them it “would have violated the Establish-
ment Clause.” Id., at 1240.
C
The Ninth Circuit affirmed. It agreed with the District
Court that Mr. Kennedy’s speech qualified as government
rather than private speech because “his expression on the
field—a location that he only had access to because of his
employment—during a time when he was generally tasked
10 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
with communicating with students, was speech as a govern-
ment employee.” 991 F. 3d, at 1015. Like the District
Court, the Ninth Circuit further reasoned that, “even if we
were to assume . . . that Kennedy spoke as a private citi-
zen,” the District had an “adequate justification” for its ac-
tions. Id., at 1016. According to the court, “Kennedy’s on-
field religious activity,” coupled with what the court called
“his pugilistic efforts to generate publicity in order to gain
approval of those on-field religious activities,” were enough
to lead an “objective observer” to conclude that the District
“endorsed Kennedy’s religious activity by not stopping the
practice.” Id., at 1017–1018. And that, the court held,
would amount to a violation of the Establishment Clause.
Ibid.
The Court of Appeals rejected Mr. Kennedy’s free exercise
claim for similar reasons. The District “concede[d]” that its
policy that led to Mr. Kennedy’s suspension was not “neu-
tral and generally applicable” and instead “restrict[ed] Ken-
nedy’s religious conduct because the conduct [was] reli-
gious.” Id., at 1020. Still, the court ruled, the District “had
a compelling state interest to avoid violating the Establish-
ment Clause,” and its suspension was narrowly tailored to
vindicate that interest. Id., at 1020–1021.
Later, the Ninth Circuit denied a petition to rehear the
case en banc over the dissents of 11 judges. 4 F. 4th 910,
911 (2021). Among other things, the dissenters argued that
the panel erred by holding that a failure to discipline Mr.
Kennedy would have led the District to violate the Estab-
lishment Clause. Several dissenters noted that the panel’s
analysis rested on Lemon v. Kurtzman, 403 U. S. 602(1971), and its progeny for the proposition that the Estab-
lishment Clause is implicated whenever a hypothetical rea-
sonable observer could conclude the government endorses
religion. 4 F. 4th, at 945–947 (opinion of R. Nelson, J.).
These dissenters argued that this Court has long since
Cite as: 597 U. S. ____ (2022) 11
Opinion of the Court
abandoned that “ahistorical, atextual” approach to discern-
ing “Establishment Clause violations”; they observed that
other courts around the country have followed suit by re-
nouncing it too; and they contended that the panel should
have likewise “recognized Lemon’s demise and wisely left it
dead.” Ibid., and n. 3. We granted certiorari. 595 U. S. ___(2022).
III
Now before us, Mr. Kennedy renews his argument that
the District’s conduct violated both the Free Exercise and
Free Speech Clauses of the First Amendment. 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. See, e.g., Widmar v. Vincent,
454 U. S. 263, 269, n. 6 (1981); Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819, 841 (1995). That the
First Amendment doubly protects religious speech is no ac-
cident. It is a natural outgrowth of the framers’ distrust of
government attempts to regulate religion and suppress dis-
sent. See, e.g., A Memorial and Remonstrance Against Re-
ligious Assessments, in Selected Writings of James Madi-
son 21, 25 (R. Ketcham ed. 2006). “[I]n Anglo–American
history, . . . government suppression of speech has so com-
monly been directed precisely at religious speech that a
free-speech clause without religion would be Hamlet with-
out the prince.” Capitol Square Review and Advisory Bd. v.
Pinette, 515 U. S. 753, 760 (1995).
Under this Court’s precedents, a plaintiff bears certain
burdens to demonstrate an infringement of his rights under
the Free Exercise and Free Speech Clauses. If the plaintiff
carries these burdens, the focus then shifts to the defendant
to show that its actions were nonetheless justified and tai-
lored consistent with the demands of our case law. See, e.g.,
Fulton v. Philadelphia, 593 U. S. ___, ___–___, ___ (2021)
12 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
(slip op., at 4–5, 13); Reed v. Town of Gilbert, 576 U. S. 155,
171 (2015); Garcetti v. Ceballos, 547 U. S. 410, 418 (2006);
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 546 (1993); Sherbert v. Verner, 374 U. S. 398, 403
(1963). We begin by examining whether Mr. Kennedy has
discharged his burdens, first under the Free Exercise
Clause, then under the Free Speech Clause.
A
The Free Exercise Clause provides that “Congress shall
make no law . . . prohibiting the free exercise” of religion.
Amdt. 1. This Court has held the Clause applicable to the
States under the terms of the Fourteenth Amendment.
Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). The
Clause protects not only the right to harbor religious beliefs
inwardly and secretly. It does perhaps its most important
work by protecting the ability of those who hold religious
beliefs of all kinds to live out their faiths in daily life
through “the performance of (or abstention from) physical
acts.” Employment Div., Dept. of Human Resources of Ore.
v. Smith, 494 U. S. 872, 877 (1990).
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 bur-
dened his sincere religious practice pursuant to a policy
that is not “neutral” or “generally applicable.” Id., at 879–
881. Should a plaintiff make a showing like that, this Court
will find a First Amendment violation unless the govern-
ment can satisfy “strict scrutiny” by demonstrating its
course was justified by a compelling state interest and was
narrowly tailored in pursuit of that interest. Lukumi, 508
U. S., at 546.1
——————
1A plaintiff may also prove a free exercise violation by showing that
“official expressions of hostility” to religion accompany laws or policies
burdening religious exercise; in cases like that we have “set aside” such
policies without further inquiry. Masterpiece Cakeshop, Ltd. v. Colorado
Cite as: 597 U. S. ____ (2022) 13
Opinion of the Court
That Mr. Kennedy has discharged his burdens is effec-
tively 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 play-
ing field” at the conclusion of each game he coaches. App.
168, 171. Mr. Kennedy has indicated repeatedly that he is
willing to “wai[t] until the game is over and the players
have left the field” to “wal[k] to mid-field to say [his] short,
private, personal prayer.” Id., at 69; see also id., at 280,
282. The contested exercise before us does not involve lead-
ing prayers with the team or before any other captive audi-
ence. Mr. Kennedy’s “religious beliefs do not require [him]
to lead any prayer . . . involving students.” Id., at 170. At
the District’s request, he voluntarily discontinued the
school tradition of locker-room prayers and his postgame
religious talks to students. The District disciplined him
only for his decision to persist in praying quietly without
his players after three games in October 2015. See Parts I–
B and I–C, supra.
Nor does anyone question that, in forbidding Mr. Ken-
nedy’s brief prayer, the District failed to act pursuant to a
neutral and generally applicable rule. A government policy
will not qualify as neutral if it is “specifically directed at . . .
religious practice.” Smith, 494 U. S., at 878. A policy can
fail this test if it “discriminate[s] on its face,” or if a religious
exercise is otherwise its “object.” Lukumi, 508 U. S., at 533;
see also Smith, 494 U. S., at 878. A government policy will
fail the general applicability requirement if it “prohibits re-
——————
Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18). To resolve
today’s case, however, we have no need to consult that test. Likewise,
while the test we do apply today has been the subject of some criticism,
see, e.g., Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at 5),
we have no need to engage with that debate today because no party has
asked us to do so.
14 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
ligious conduct while permitting secular conduct that un-
dermines the government’s asserted interests in a similar
way,” or if it provides “a mechanism for individualized ex-
emptions.” Fulton, 593 U. S., at ___ (slip op., at 6). Failing
either the neutrality or general applicability test is suffi-
cient to trigger strict scrutiny. See Lukumi, 508 U. S., at
546.
In this case, the District’s challenged policies were nei-
ther neutral nor generally applicable. By its own admis-
sion, the District sought to restrict Mr. Kennedy’s actions
at least in part because of their religious character. As it
put it in its September 17 letter, the District prohibited
“any overt actions on Mr. Kennedy’s part, appearing to a
reasonable observer to endorse even voluntary, student-in-
itiated prayer.” App. 81. The District further explained
that it could not allow “an employee, while still on duty, to
engage in religious conduct.” Id., at 106 (emphasis added).
Prohibiting a religious practice was thus the District’s un-
questioned “object.” The District candidly acknowledged as
much below, conceding that its policies were “not neutral”
toward religion. 991 F. 3d, at 1020.
The District’s challenged policies also fail the general ap-
plicability test. The District’s performance evaluation after
the 2015 football season advised against rehiring Mr. Ken-
nedy on the ground that he “failed to supervise student-
athletes after games.” App. 114. But, in fact, this was a
bespoke requirement specifically addressed to Mr. Ken-
nedy’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. App. 205; see also Part I–B, su-
pra. Thus, any sort of postgame supervisory requirement
was not applied in an evenhanded, across-the-board way.
Again recognizing as much, the District conceded before the
Ninth Circuit that its challenged directives were not “gen-
erally applicable.” 991 F. 3d, at 1020.
Cite as: 597 U. S. ____ (2022) 15
Opinion of the Court
B
When it comes to Mr. Kennedy’s free speech claim, our
precedents remind us that the First Amendment’s protec-
tions extend to “teachers and students,” neither of whom
“shed their constitutional rights to freedom of speech or ex-
pression at the schoolhouse gate.” Tinker v. Des Moines In-
dependent Community School Dist., 393 U. S. 503, 506
(1969); see also Lane v. Franks, 573 U. S. 228, 231 (2014).
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 gov-
ernment employees paid in part to speak on the govern-
ment’s behalf and convey its intended messages.
To account for the complexity associated with the inter-
play between free speech rights and government employ-
ment, this Court’s decisions in Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty., 391 U. S. 563(1968), Garcetti, 547 U. S. 410, and related cases suggest
proceeding in two steps. The first step involves a threshold
inquiry into the nature of the speech at issue. If a public
employee speaks “pursuant to [his or her] official duties,”
this Court has said the Free Speech Clause generally will
not shield the individual from an employer’s control and
discipline because that kind of speech is—for constitutional
purposes at least—the government’s own speech. Id., at
421.
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 Amend-
ment may be implicated and courts should proceed to a sec-
ond step. Id., at 423. At this second step, our cases suggest
that courts should attempt to engage in “a delicate balanc-
ing of the competing interests surrounding the speech and
its consequences.” Ibid. Among other things, courts at this
16 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
second step have sometimes considered whether an em-
ployee’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.’” Id., at
417 (quoting Pickering, 391 U. S., at 568).
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. See App. to Pet. for Cert. 183;
Brief for Respondent 44. 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” be-
yond those captured by this framework. Garcetti, 547 U. S.,
at 425; see also Keyishian v. Board of Regents of Univ. of
State of N. Y., 385 U. S. 589, 603 (1967); Brief for Petitioner
26, n. 2. 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 govern-
ment speech attributable to the District?
Our cases offer some helpful guidance for resolving this
question. In Garcetti, the Court concluded that a prosecu-
tor’s internal memorandum to a supervisor was made “pur-
suant to [his] official duties,” and thus ineligible for First
Amendment protection. 547 U. S., at 421. 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 govern-
ment 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.
Id., at 422.
Cite as: 597 U. S. ____ (2022) 17
Opinion of the Court
By contrast, in Lane a public employer sought to termi-
nate an employee after he testified at a criminal trial about
matters involving his government employment. 573 U. S.,
at 233. The Court held that the employee’s speech was pro-
tected by the First Amendment. Id., at 231. 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. Id., at 239–240. Instead, the Court
explained, the “critical question . . . is whether the speech
at issue is itself ordinarily within the scope of an employee’s
duties.” Id., at 240. 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. Garcetti, 547 U. S., at 424. To pro-
ceed otherwise would be to allow public employers to use
“excessively broad job descriptions” to subvert the Consti-
tution’s protections. Ibid.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 ut-
tered 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 in-
structing 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, su-
pra. Simply put: Mr. Kennedy’s prayers did not “ow[e
their] existence” to Mr. Kennedy’s responsibilities as a pub-
lic employee. Garcetti, 547 U. S., at 421.
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 per-
sonal matters—everything from checking sports scores on
their phones to greeting friends and family in the stands.
18 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
App. 205; see Part I–B, supra. We find it unlikely that Mr.
Kennedy was fulfilling a responsibility imposed by his em-
ployment 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. Garcetti,
547 U. S., at 421. 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 sub-
stance of Mr. Kennedy’s speech and the circumstances sur-
rounding 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.” 991 F. 3d, at 1015. The court em-
phasized that Mr. Kennedy remained on duty after games.
Id., at 1016. Before us, the District presses the same argu-
ments. See Brief for Respondent 24. 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 every-
thing teachers and coaches say in the workplace as govern-
ment speech subject to government control. Garcetti, 547
U. S., at 424. 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 pri-
vate moment after the game to call home, check a text, so-
Cite as: 597 U. S. ____ (2022) 19
Opinion of the Court
cialize, or engage in any manner of secular activities. Oth-
ers working for the District were free to engage briefly in
personal speech and activity. App. 205; see Part I–B, supra.
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.”
Tinker, 393 U. S., at 506.
Of course, acknowledging that Mr. Kennedy’s prayers
represented his own private speech does not end the mat-
ter. So far, we have recognized only that Mr. Kennedy has
carried his threshold burden. Under the Pickering–Garcetti
framework, a second step remains where the government
may seek to prove that its interests as employer outweigh
even an employee’s private speech on a matter of public con-
cern. See Lane, 573 U. S., at 236, 242.2
IV
Whether 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 nar-
rowly tailored to that end. See Lukumi, 508 U. S., at 533;
n. 1, supra. A similar standard generally obtains under the
Free Speech Clause. See Reed, 576 U. S., at 171. The Dis-
trict, however, asks us to apply to Mr. Kennedy’s claims the
——————
2Because our analysis and the parties’ concessions lead to the conclu-
sion that Mr. Kennedy’s prayer constituted private speech on a matter of
public concern, we do not decide whether the Free Exercise Clause may
sometimes demand a different analysis at the first step of the Pickering–
Garcetti framework.
20 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
more lenient second-step Pickering–Garcetti test, or alter-
natively intermediate scrutiny. See Brief for Respondent
44–48. Ultimately, however, it does not matter which
standard we apply. The District cannot sustain its burden
under any of them.3
A
As we have seen, the District argues that its suspension
of Mr. Kennedy was essential to avoid a violation of the Es-
tablishment Clause. Id., at 35–42. On its account, Mr. Ken-
nedy’s prayers might have been protected by the Free Ex-
ercise and Free Speech Clauses. But his rights were in
“direct tension” with the competing demands of the Estab-
lishment Clause. App. 43. To resolve that clash, the Dis-
trict reasoned, Mr. Kennedy’s rights had to “yield.” Ibid.
The Ninth Circuit pursued this same line of thinking, in-
sisting that the District’s interest in avoiding an Establish-
ment Clause violation “‘trump[ed]’” Mr. Kennedy’s rights
to religious exercise and free speech. 991 F. 3d, at 1017; see
also id., at 1020–1021.
But how could that be? It is true that this Court and oth-
ers often refer to the “Establishment Clause,” the “Free Ex-
ercise 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 re-
specting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech.”
Amdt. 1. 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
——————
3It seems, too, that it is only here where our disagreement with the
dissent begins in earnest. We do not understand our colleagues to con-
test that Mr. Kennedy has met his burdens under either the Free Exer-
cise or Free Speech Clause, but only to suggest the District has carried
its own burden “to establish that its policy prohibiting Kennedy’s public
prayers was the least restrictive means of furthering a compelling state
interest.” Post, at 22 (opinion of SOTOMAYOR, J.).
Cite as: 597 U. S. ____ (2022) 21
Opinion of the Court
over the others. See Everson v. Board of Ed. of Ewing, 330
U. S. 1, 13, 15 (1947).
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.
App. 81. The District then took the view that a “reasonable
observer” could think it “endorsed Kennedy’s religious ac-
tivity by not stopping the practice.” 991 F. 3d, at 1018; see
also App. 80–81; Parts I and II, supra. 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 ex-
pression 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 allow-
ing the prayer the District endorsed Mr. Kennedy’s mes-
sage, the District felt it had to act, even if that meant sup-
pressing otherwise protected First Amendment activities.
In this way, the District effectively created its own “vise be-
tween the Establishment Clause on one side and the Free
Speech and Free Exercise Clauses on the other,” placed it-
self in the middle, and then chose its preferred way out of
its self-imposed trap. See Pinette, 515 U. S., at 768 (plural-
ity opinion); Shurtleff v. Boston, 596 U. S. ___, ___–___
(2022) (GORSUCH, J., concurring in judgment) (slip op., at
4–5).
To defend its approach, the District relied on Lemon and
its progeny. See App. 43–45. In upholding the District’s
actions, the Ninth Circuit followed the same course. See
Part II–C, supra. And, to be sure, in Lemon this Court at-
tempted a “grand unified theory” for assessing Establish-
ment Clause claims. American Legion v. American Human-
ist Assn., 588 U. S. ___, ___ (2019) (plurality opinion) (slip
22 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
op., at 24). That approach called for an examination of a
law’s purposes, effects, and potential for entanglement with
religion. Lemon, 403 U. S., at 612–613. In time, the ap-
proach also came to involve estimations about whether a
“reasonable observer” would consider the government’s
challenged action an “endorsement” of religion. See, e.g.,
County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 593 (1989); id.,
at 630 (O’Connor, J., concurring in part and concurring in
judgment); Shurtleff, 596 U. S., at ___ (opinion of GORSUCH,
J.) (slip op., at 3).
What the District and the Ninth Circuit overlooked, how-
ever, is that the “shortcomings” associated with this “ambi-
tiou[s],” abstract, and ahistorical approach to the Establish-
ment Clause became so “apparent” that this Court long ago
abandoned Lemon and its endorsement test offshoot. Amer-
ican Legion, 588 U. S., at ___–___ (plurality opinion) (slip
op., at 12–13); see also Town of Greece v. Galloway, 572
U. S. 565, 575–577 (2014). The Court has explained that
these tests “invited chaos” in lower courts, led to “differing
results” in materially identical cases, and created a “mine-
field” for legislators. Pinette, 515 U. S., at 768–769, n. 3
(plurality opinion) (emphasis deleted). This Court has since
made plain, too, that the Establishment Clause does not in-
clude anything like a “modified heckler’s veto, in which . . .
religious activity can be proscribed” based on “‘percep-
tions’” or “‘discomfort.’” Good News Club v. Milford Cen-
tral School, 533 U. S. 98, 119 (2001) (emphasis deleted). An
Establishment Clause violation does not automatically fol-
low whenever a public school or other government entity
“fail[s] to censor” private religious speech. Board of Ed. of
Westside Community Schools (Dist. 66) v. Mergens, 496
U. S. 226, 250 (1990) (plurality opinion). Nor does the
Clause “compel the government to purge from the public
sphere” anything an objective observer could reasonably in-
fer endorses or “partakes of the religious.” Van Orden v.
Cite as: 597 U. S. ____ (2022) 23
Opinion of the Court
Perry, 545 U. S. 677, 699 (2005) (BREYER, J., concurring in
judgment). In fact, just this Term the Court unanimously
rejected a city’s attempt to censor religious speech based on
Lemon and the endorsement test. See Shurtleff, 596 U. S.,
at ___–___ (slip op., at 1–2); id., at ___ (ALITO, J., concurring
in judgment) (slip op., at 1); id., at ___, ___–___ (opinion of
GORSUCH, J.) (slip op., at 1, 4–5).4
In place of Lemon and the endorsement test, this Court
has instructed that the Establishment Clause must be in-
terpreted by “‘reference to historical practices and under-
standings.’” Town of Greece, 572 U. S., at 576; see also
American Legion, 588 U. S., at ___ (plurality opinion) (slip
op., at 25). “‘[T]he line’” that courts and governments
“must draw between the permissible and the impermissi-
ble” has to “‘accor[d] with history and faithfully reflec[t] the
understanding of the Founding Fathers.’” Town of Greece,
——————
4Nor was that decision an outlier. In the last two decades, this Court
has often criticized or ignored Lemon and its endorsement test variation.
See, e.g., Espinoza v. Montana Dept. of Revenue, 591 U. S. ___ (2020);
American Legion v. American Humanist Assn., 588 U. S. ___ (2019);
Trump v. Hawaii, 585 U. S. ___ (2018); Trinity Lutheran Church of Co-
lumbia, Inc. v. Comer, 582 U. S. ___ (2017); Town of Greece v. Galloway,
572 U. S. 565 (2014); Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U. S. 171 (2012); Arizona Christian School Tuition
Organization v. Winn, 563 U. S. 125 (2011); Hein v. Freedom from Reli-
gion Foundation, Inc., 551 U. S. 587 (2007); id., at 618 (Scalia, J., con-
curring in judgment); Van Orden v. Perry, 545 U. S. 677 (2005); id., at
689 (BREYER, J., concurring in judgment). A vast number of Justices
have criticized those tests over an even longer period. See Shurtleff v.
Boston, 596 U. S. ___, at ___–___, and nn. 9–10 (2022) (GORSUCH, J., con-
curring in judgment) (slip op., at 7–8, and nn. 9–10) (collecting opinions
authored or joined by ROBERTS and Rehnquist, C. J., and THOMAS,
BREYER, ALITO, KAVANAUGH, Stevens, O’Connor, Scalia, and Kennedy,
JJ.). The point has not been lost on our lower court colleagues. See, e.g.,
4 F. 4th 910, 939–941 (2021) (O’Scannlain, J., respecting denial of re-
hearing en banc); id., at 945 (R. Nelson, J., dissenting from denial of re-
hearing en banc); id., at 947, n. 3 (collecting lower court cases from
“around the country” that “have recognized Lemon’s demise”).
24 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
572 U. S., at 577 (quoting School Dist. of Abington Town-
ship v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J.,
concurring)). 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 Es-
tablishment Clause jurisprudence.” 572 U. S., at 575; see
American Legion, 588 U. S., at ___ (plurality opinion) (slip
op., at 25); Torcaso v. Watkins, 367 U. S. 488, 490 (1961)
(analyzing certain historical elements of religious establish-
ments); McGowan v. Maryland, 366 U. S. 420, 437–440
(1961) (analyzing Sunday closing laws by looking to their
“place . . . in the First Amendment’s history”); Walz v. Tax
Comm’n of City of New York, 397 U. S. 664, 680 (1970) (an-
alyzing the “history and uninterrupted practice” of church
tax exemptions). The District and the Ninth Circuit erred
by failing to heed this guidance.
B
Perhaps sensing that the primary theory it pursued be-
low rests on a mistaken understanding of the Establish-
ment Clause, the District offers a backup argument in this
Court. It still contends that its Establishment Clause con-
cerns trump Mr. Kennedy’s free exercise and free speech
rights. But the District now seeks to supply different rea-
soning for that result. Now, it says, it was justified in sup-
pressing Mr. Kennedy’s religious activity because otherwise
it would have been guilty of coercing students to pray. See
Brief for Respondent 34–37. And, the District says, coerc-
ing 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 proceed-
ings 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-
Cite as: 597 U. S. ____ (2022) 25
Opinion of the Court
lishment Clause, “make a religious observance compul-
sory.” Zorach v. Clauson, 343 U. S. 306, 314 (1952). Gov-
ernment “may not coerce anyone to attend church,” ibid.,
nor may it force citizens to engage in “a formal religious ex-
ercise,” Lee v. Weisman, 505 U. S. 577, 589 (1992). No
doubt, too, coercion along these lines was among the fore-
most hallmarks of religious establishments the framers
sought to prohibit when they adopted the First Amend-
ment.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. Com-
pare Lee, 505 U. S., at 593, with id., at 640–641 (Scalia, J.,
dissenting). But in this case Mr. Kennedy’s private reli-
gious 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 descrip-
tion of the facts. In its correspondence with Mr. Kennedy,
the District never raised coercion concerns. To the con-
trary, the District conceded in a public 2015 document that
there was “no evidence that students [were] directly coerced
to pray with Kennedy.” App. 105. 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.” Id., at 170.
Consider, too, the actual requests Mr. Kennedy made.
The District did not discipline Mr. Kennedy for engaging in
——————
5See, e.g., Lee v. Weisman, 505 U. S. 577, 640–642 (1992) (Scalia, J.
dissenting); Shurtleff, 596 U. S., at ___–___ (opinion of GORSUCH, J.) (slip
op., at 10–13) (discussing coercion and certain other historical hallmarks
of an established religion); 1 Annals of Cong. 730–731 (1789) (Madison
explaining that the First Amendment aimed to prevent one or multiple
sects from “establish[ing] a religion to which they would compel others
to conform”); M. McConnell, Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev.
2105, 2144–2146 (2003).
26 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
prayer while presenting locker-room speeches to students.
That tradition predated Mr. Kennedy at the school. App.
170. And he willingly ended it, as the District has acknowl-
edged. Id., at 77, 170. He also willingly ended his practice
of postgame religious talks with his team. Id., at 70, 77,
170–172. 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. Id., at 293–294. 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 play-
ers were walking to the locker room” or “bus,” and then
catch up with his team. Id., at 280, 282; see also id., at 59
(proposing the team leave the field for the prayer). 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 every-
body” that’s what he wished “to do.” Id., at 292. It was for
three prayers of this sort alone in October 2015 that the
District suspended him. See Parts I–B and I–C, supra.
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 plu-
ralistic society,” a trait of character essential to “a tolerant
citizenry.” Lee, 505 U. S., at 590. This Court has long rec-
ognized 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.” Mergens,
496 U. S., at 250 (plurality opinion). 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 . . .
Cite as: 597 U. S. ____ (2022) 27
Opinion of the Court
does not equate to coercion.” Town of Greece, 572 U. S., at
589 (plurality opinion).
The District responds that, as a coach, Mr. Kennedy
“wielded enormous authority and influence over the stu-
dents,” and students might have felt compelled to pray
alongside him. Brief for Respondent 37. 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.”
App. 356.
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,’” 991
F. 3d, at 1012–1013, and thus could not have “reasonably
fear[ed]” that he would decrease their “playing time” or de-
stroy their “opportunities” if they did not “participate,”
Brief for Respondent 43. As for the other two relevant
games, “no one joined” Mr. Kennedy on October 23. 991
F. 3d, at 1019. And only a few members of the public par-
ticipated on October 26. App. 97, 314–315; see also Part I–
28 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
B, supra.6
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 govern-
ment role models for students are those who eschew any
visible religious expression. See also post, at 16–17
(SOTOMAYOR, J., dissenting). If the argument sounds famil-
iar, 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.
See Part III–B, supra. The only added twist here is the Dis-
trict’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 sup-
press it. Rather than respect the First Amendment’s double
protection for religious expression, it would have us prefer-
ence 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
——————
6The dissent expresses concern that looking to “histor[y] an[d] tradi-
tion” to guide Establishment Clause inquiries will not afford “school ad-
ministrators” sufficient guidance. Post, at 30. But that concern supplies
no excuse to adorn the Constitution with rules not supported by its terms
and the traditions undergirding them. Nor, in any event, is there any
question that the District understands that coercion can be a hallmark
of an Establishment Clause violation. See App. 105. The District’s prob-
lem isn’t a failure to identify coercion as a crucial legal consideration; it
is a lack of evidence that coercion actually occurred.
Cite as: 597 U. S. ____ (2022) 29
Opinion of the Court
not the same thing as coercing others to participate in it.
See Town of Greece, 572 U. S., at 589 (plurality opinion). It
is a rule, too, that would undermine a long constitutional
tradition under which learning how to tolerate diverse ex-
pressive 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 Estab-
lishment Clause that begins to “mak[e] it necessary for gov-
ernment to be hostile to religion” in this way. Zorach, 343
U. S., at 314.
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. Id., at 308, 311–312. 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. Id., at
311, and n. 6. What was clear there is even more obvious
here—where there is no evidence anyone sought to per-
suade or force students to participate, and there is no for-
mal 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.” 505
U. S., at 580, 598. In Santa Fe Independent School Dist. v.
Doe, the Court held that a school district violated the Es-
tablishment Clause by broadcasting a prayer “over the pub-
lic address system” before each football game. 530 U. S.
30 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
290, 294 (2000). 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.” Id., at 311. 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. See App. 90, 97,
173, 236–239; Parts I–B and I–C, supra.7
C
In the end, the District’s case hinges on the need to gen-
erate conflict between an individual’s rights under the Free
Exercise and Free Speech Clauses and its own Establish-
ment Clause duties—and then develop some explanation
why one of these Clauses in the First Amendment should
“‘trum[p]’ ” the other two. 991 F. 3d, at 1017; App. 43. But
the project falters badly. Not only does the District fail to
offer a sound reason to prefer one constitutional guarantee
——————
7Even if the personal prayers Mr. Kennedy sought to offer after games
are not themselves coercive, the dissent suggests that they bear an in-
delible taint of coercion by association with the school’s past prayer prac-
tices—some of which predated Mr. Kennedy, and all of which the District
concedes he ended on request. But none of those abandoned practices
formed the basis for Mr. Kennedy’s suspension, and he has not sought to
claim First Amendment protection for them. See Town of Greece, 572
U. S., at 585 (other past practices do not permanently “despoil a practice”
later challenged under the Establishment Clause). Nor, contrary to the
dissent, does the possibility that students might choose, unprompted, to
participate in Mr. Kennedy’s prayers necessarily prove them coercive.
See post, at 18–20, 32–33. For one thing, the District has conceded that
no coach may “discourag[e]” voluntary student prayer under its policies.
Tr. of Oral Arg. 91. For another, Mr. Kennedy has repeatedly explained
that he is willing to conduct his prayer without students—as he did after
each of the games that formed the basis of his suspension—and after
students head to the locker room or bus. See App. 280, 282, 292–294.
Cite as: 597 U. S. ____ (2022) 31
Opinion of the Court
over another. It cannot even show that they are at odds. In
truth, there is no conflict between the constitutional com-
mands before us. There is only the “mere shadow” of a con-
flict, a false choice premised on a misconstruction of the Es-
tablishment Clause. Schempp, 374 U. S., at 308 (Goldberg,
J., concurring). And in no world may a government entity’s
concerns about phantom constitutional violations justify ac-
tual violations of an individual’s First Amendment rights.
See, e.g., Rosenberger, 515 U. S., at 845–846; Good News
Club, 533 U. S., at 112–119; Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U. S. 384, 394–395
(1993); Widmar, 454 U. S., at 270–275.8
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 en-
gaging in a brief, quiet, personal religious observance dou-
bly protected by the Free Exercise and Free Speech Clauses
of the First Amendment. And the only meaningful justifi-
cation the government offered for its reprisal rested on a
mistaken view that it had a duty to ferret out and suppress
——————
8Failing under its coercion theory, the District offers still another
backup argument. It contends that it had to suppress Mr. Kennedy’s
protected First Amendment activity to ensure order at Bremerton foot-
ball games. See also post, at 2, 8–9, 11, 34–35 (SOTOMAYOR, J., dissent-
ing). But the District never raised concerns along these lines in its con-
temporaneous correspondence with Mr. Kennedy. And unsurprisingly,
neither the District Court nor the Ninth Circuit invoked this rationale to
justify the District’s actions. Government “justification[s]” for interfer-
ing with First Amendment rights “must be genuine, not hypothesized or
invented post hoc in response to litigation.” United States v. Virginia,
518 U. S. 515, 533 (1996). Nor under our Constitution does protected
speech or religious exercise readily give way to a “heckler’s veto.” Good
News Club v. Milford Central School, 533 U. S. 98, 119 (2001); supra, at
22–23.
32 KENNEDY v. BREMERTON SCHOOL DIST.
Opinion of the Court
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.
Cite as: 597 U. S. ____ (2022) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–418
_________________
JOSEPH A. KENNEDY, PETITIONER v.
BREMERTON SCHOOL DISTRICT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2022]
JUSTICE THOMAS, concurring.
I join the Court’s opinion because it correctly holds that
Bremerton School District violated Joseph Kennedy’s First
Amendment rights. I write separately to emphasize that
the Court’s opinion does not resolve two issues related to
Kennedy’s free-exercise claim.
First, the Court refrains from deciding whether or how
public employees’ rights under the Free Exercise Clause
may or may not be different from those enjoyed by the gen-
eral public. See ante, at 19, n. 2. In “striking the appropri-
ate balance” between public employees’ constitutional
rights and “the realities of the employment context,” we
have often “consider[ed] whether the asserted employee
right implicates the basic concerns of the relevant constitu-
tional provision, or whether the claimed right can more
readily give way to the requirements of the government as
employer.” Engquist v. Oregon Dept. of Agriculture, 553
U. S. 591, 600 (2008). In the free-speech context, for exam-
ple, that inquiry has prompted us to distinguish between
different kinds of speech; we have held that “the First
Amendment protects public employee speech only when it
falls within the core of First Amendment protection—
speech on matters of public concern.” Ibid. It remains an
open question, however, if a similar analysis can or should
apply to free-exercise claims in light of the “history” and
2 KENNEDY v. BREMERTON SCHOOL DIST.
THOMAS, J., concurring
“tradition” of the Free Exercise Clause. Borough of Duryea
v. Guarnieri, 564 U. S. 379, 406 (2011) (Scalia, J., concur-
ring in judgment in part and dissenting in part); see also
id., at 400 (THOMAS, J., concurring in judgment).
Second, the Court also does not decide what burden a gov-
ernment employer must shoulder to justify restricting an
employee’s religious expression because the District had no
constitutional basis for reprimanding Kennedy under any
possibly applicable standard of scrutiny. See ante, at 20.
While we have many public-employee precedents address-
ing how the interest-balancing test set out in Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563 (1968), applies under the Free Speech Clause,
the Court has never before applied Pickering balancing to a
claim brought under the Free Exercise Clause. A govern-
ment employer’s burden therefore might differ depending
on which First Amendment guarantee a public employee in-
vokes.
Cite as: 597 U. S. ____ (2022) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–418
_________________
JOSEPH A. KENNEDY, PETITIONER v.
BREMERTON SCHOOL DISTRICT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2022]
JUSTICE ALITO, concurring.
The expression at issue in this case is unlike that in any
of our prior cases involving the free-speech rights of public
employees. Petitioner’s expression occurred while at work
but during a time when a brief lull in his duties apparently
gave him a few free moments to engage in private activities.
When he engaged in this expression, he acted in a purely
private capacity. The Court does not decide what standard
applies to such expression under the Free Speech Clause
but holds only that retaliation for this expression cannot be
justified based on any of the standards discussed. On that
understanding, I join the opinion in full.
Cite as: 597 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–418
_________________
JOSEPH A. KENNEDY, PETITIONER v.
BREMERTON SCHOOL DISTRICT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 27, 2022]
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 au-
thorize, 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 lead-
ing 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. See Carson v. Makin, 596
U. S. ___, ___ (2022) (BREYER, J., dissenting) (slip op., at 1).
To the degree the Court portrays petitioner Joseph Ken-
nedy’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
2 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
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 program-
ming 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 as-
sessing them divorced from the context and history of Ken-
nedy’s prayer practice.
Today’s decision goes beyond merely misreading the rec-
ord. The Court overrules Lemon v. Kurtzman, 403 U. S. 602(1971), and calls into question decades of subsequent prec-
edents that it deems “offshoot[s]” of that decision. Ante, at
22. In the process, the Court rejects longstanding concerns
surrounding government endorsement of religion and re-
places 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 ex-
ercise, it applies a nearly toothless version of the coercion
analysis, failing to acknowledge the unique pressures faced
by students when participating in school-sponsored activi-
ties. 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.
I
As the majority tells it, Kennedy, a coach for the District’s
football program, “lost his job” for “pray[ing] quietly while
Cite as: 597 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
his students were otherwise occupied.” Ante, at 1. The rec-
ord before us, however, tells a different story.
A
The District serves approximately 5,057 students and
employs 332 teachers and 400 nonteaching personnel in
Kitsap County, Washington. The county is home to Bahá’ís,
Buddhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians,
and many denominations of Christians, as well as numer-
ous residents who are religiously unaffiliated. See Brief for
Religious and Denominational Organizations et al. as
Amici Curiae 4.
The District first hired Kennedy in 2008, on a renewable
annual contract, to serve as a part-time assistant coach for
the varsity football team and head coach for the junior var-
sity team at Bremerton High School (BHS). Kennedy’s job
description required him to “[a]ccompany and direct” all
home and out-of-town games to which he was assigned,
overseeing preparation and transportation before games,
being “[r]esponsible for player behavior both on and off the
field,” supervising dressing rooms, and “secur[ing] all facil-
ities at the close of each practice.” App. 32–34, 36. His du-
ties encompassed “supervising student activities immedi-
ately following the completion of the game” until the
students were released to their parents or otherwise al-
lowed to leave. Id., at 133.
The District also set requirements for Kennedy’s interac-
tions with players, obliging him, like all coaches, to “exhibit
sportsmanlike conduct at all times,” “utilize positive moti-
vational strategies to encourage athletic performance,” and
serve as a “mentor and role model for the student athletes.”
Id., at 56. In addition, Kennedy’s position made him re-
sponsible for interacting with members of the community.
In this capacity, the District required Kennedy and other
coaches to “maintain positive media relations,” “always ap-
proach officials with composure” with the expectation that
4 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
they were “constantly being observed by others,” and “com-
municate effectively” with parents. Ibid.
Finally, District coaches had to “[a]dhere to [District] pol-
icies and administrative regulations” more generally. Id.,
at 30–31. As relevant here, the District’s policy on “Reli-
gious-Related Activities and Practices” provided that
“[s]chool staff shall neither encourage or discourage a stu-
dent from engaging in non-disruptive oral or silent prayer
or any other form of devotional activity” and that “[r]eli-
gious services, programs or assemblies shall not be con-
ducted in school facilities during school hours or in connec-
tion with any school sponsored or school related activity.”
Id., at 26–28.
B
In September 2015, a coach from another school’s football
team informed BHS’ principal that Kennedy had asked him
and his team to join Kennedy in prayer. The other team’s
coach told the principal that he thought it was “‘cool’” that
the District “‘would allow [its] coaches to go ahead and in-
vite other teams’ coaches and players to pray after a game.’”
Id., at 229.
The District initiated an inquiry into whether its policy
on Religious-Related Activities and Practices had been vio-
lated. It learned that, since his hiring in 2008, Kennedy
had been kneeling on the 50-yard line to pray immediately
after shaking hands with the opposing team. Kennedy re-
counted that he initially prayed alone and that he never
asked any student to join him. Over time, however, a ma-
jority of the team came to join him, with the numbers vary-
ing from game to game. Kennedy’s practice evolved into
postgame talks in which Kennedy would hold aloft student
helmets and deliver speeches with “overtly religious refer-
ences,” which Kennedy described as prayers, while the
players kneeled around him. Id., at 40. The District also
learned that students had prayed in the past in the locker
Cite as: 597 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
Photograph of J. Kennedy standing in group of kneeling players.
room prior to games, before Kennedy was hired, but that
Kennedy subsequently began leading those prayers too.
While the District’s inquiry was pending, its athletic di-
rector attended BHS’ September 11, 2015, football game
and told Kennedy that he should not be conducting prayers
with players. After the game, while the athletic director
watched, Kennedy led a prayer out loud, holding up a
player’s helmet as the players kneeled around him. While
riding the bus home with the team, Kennedy posted on
Facebook that he thought he might have just been fired for
praying.
On September 17, the District’s superintendent sent Ken-
nedy a letter informing him that leading prayers with stu-
dents on the field and in the locker room would likely be
found to violate the Establishment Clause, exposing the
District to legal liability. The District acknowledged that
6 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
Kennedy had “not actively encouraged, or required, partic-
ipation” but emphasized that “school staff may not indi-
rectly encourage students to engage in religious activity” or
“endors[e]” religious activity; rather, the District explained,
staff “must remain neutral” “while performing their job du-
ties.” Id., at 41–43. The District instructed Kennedy that
any motivational talks to students must remain secular, “so
as to avoid alienation of any team member.” Id., at 44.
The District reiterated that “all District staff are free to
engage in religious activity, including prayer, so long as it
does not interfere with job responsibilities.” Id., at 45. To
avoid endorsing student religious exercise, the District in-
structed that such activity must be nondemonstrative or
conducted separately from students, away from student ac-
tivities. Ibid. The District expressed concern that Kennedy
had continued his midfield prayer practice at two games af-
ter the District’s athletic director and the varsity team’s
head coach had instructed him to stop. Id., at 40–41.
Kennedy stopped participating in locker room prayers
and, after a game the following day, gave a secular speech.
He returned to pray in the stadium alone after his duties
were over and everyone had left the stadium, to which the
District had no objection. Kennedy then hired an attorney,
who, on October 14, sent a letter explaining that Kennedy
was “motivated by his sincerely-held religious beliefs to
pray following each football game.” Id., at 63. The letter
claimed that the District had required that Kennedy “flee
from students if they voluntarily choose to come to a place
where he is privately praying during personal time,” refer-
ring to the 50-yard line of the football field immediately fol-
lowing the conclusion of a game. Id., at 70. Kennedy re-
quested that the District simply issue a “clarif[ication] that
the prayer is [Kennedy’s] private speech” and that the Dis-
trict not “interfere” with students joining Kennedy in
prayer. Id., at 71. The letter further announced that Ken-
nedy would resume his 50-yard-line prayer practice the
Cite as: 597 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
next day after the October 16 homecoming game.1
Before the homecoming game, Kennedy made multiple
media appearances to publicize his plans to pray at the 50-
yard line, leading to an article in the Seattle News and a
local television broadcast about the upcoming homecoming
game. In the wake of this media coverage, the District be-
gan receiving a large number of emails, letters, and calls,
many of them threatening.
The District responded to Kennedy’s letter before the
game on October 16. It emphasized that Kennedy’s letter
evinced “materia[l] misunderstand[ings]” of many of the
facts at issue. Id., at 76. For instance, Kennedy’s letter
asserted that he had not invited anyone to pray with him;
the District noted that that might be true of Kennedy’s Sep-
tember 17 prayer specifically, but that Kennedy had
acknowledged inviting others to join him on many previous
occasions. The District’s September 17 letter had explained
that Kennedy traditionally held up helmets from the BHS
and opposing teams while players from each team kneeled
around him. While Kennedy’s letter asserted that his pray-
ers “occurr[ed] ‘on his own time,’ after his duties as a Dis-
trict employee had ceased,” the District pointed out that
Kennedy “remain[ed] on duty” when his prayers occurred
“immediately following completion of the football game,
when students are still on the football field, in uniform, un-
der the stadium lights, with the audience still in attend-
ance, and while Mr. Kennedy is still in his District-issued
and District-logoed attire.” Id., at 78 (emphasis deleted).
——————
1The Court recounts that Kennedy was “willing to say his ‘prayer while
the players were walking to the locker room’ or ‘bus,’ and then catch up
with his team.” Ante, at 4 (quoting App. 280–282); see also ante, at 5.
Kennedy made the quoted remarks, however, only during his deposition
in the underlying litigation, stating in response to a question that such
timing would have been “physically possible” and “possibly” have been
acceptable to him, but that he had never “discuss[ed] with the District
whether that was a possibility for [him] to do” and had “no idea” whether
his lawyers raised it with the District. App. 280.
8 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
The District further noted that “[d]uring the time following
completion of the game, until players are released to their
parents or otherwise allowed to leave the event, Mr. Ken-
nedy, like all coaches, is clearly on duty and paid to con-
tinue supervision of students.” Id., at 79.
The District stated that it had no objection to Kennedy
returning to the stadium when he was off duty to pray at
the 50-yard line, nor with Kennedy praying while on duty
if it did not interfere with his job duties or suggest the Dis-
trict’s endorsement of religion. The District explained that
its establishment concerns were motivated by the specific
facts at issue, because engaging in prayer on the 50-yard
line immediately after the game finished would appear to
be an extension of Kennedy’s “prior, long-standing and well-
known history of leading students in prayer” on the 50-yard
line after games. Id., at 81. The District therefore reaf-
firmed its prior directives to Kennedy.
On October 16, after playing of the game had concluded,
Kennedy shook hands with the opposing team, and as ad-
vertised, knelt to pray while most BHS players were sing-
ing the school’s fight song. He quickly was joined by
coaches and players from the opposing team. Television
news cameras surrounded the group.2 Members of the pub-
lic rushed the field to join Kennedy, jumping fences to
access the field and knocking over student band members.
After the game, the District received calls from Satanists
who “‘intended to conduct ceremonies on the field after foot-
ball games if others were allowed to.’” Id., at 181. To secure
the field and enable subsequent games to continue safely,
the District was forced to make security arrangements with
——————
2The Court describes the events of the October 16 game as having
“spurred media coverage of Mr. Kennedy’s case.” Ante, at 5. In fact, the
District Court found that Kennedy himself generated the media coverage
by publicizing his dispute with the District in his initial Facebook posting
and in his media appearances before the October 16 game. 443 F. Supp.
3d 1223, 1230 (WD Wash. 2020).
Cite as: 597 U. S. ____ (2022) 9
SOTOMAYOR, J., dissenting
the local police and to post signs near the field and place
robocalls to parents reiterating that the field was not open
to the public.
Photograph of J. Kennedy in prayer circle (Oct. 16, 2015).
The District sent Kennedy another letter on October 23,
explaining that his conduct at the October 16 game was in-
consistent with the District’s requirements for two reasons.
First, it “drew [him] away from [his] work”; Kennedy had,
“until recently, . . . regularly c[o]me to the locker room with
the team and other coaches following the game” and had
“specific responsibility for the supervision of players in the
locker room following games.” Id., at 92–93. Second, his
conduct raised Establishment Clause concerns, because
“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 [his] prior public conduct, overtly
religious conduct.” Id., at 93.
Again, the District emphasized that it was happy to ac-
commodate Kennedy’s desire to pray on the job in a way
10 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
that did not interfere with his duties or risk perceptions of
endorsement. Stressing that “[d]evelopment of accommo-
dations is an interactive process,” it invited Kennedy to
reach out to discuss accommodations that might be mutu-
ally satisfactory, offering proposed accommodations and in-
viting Kennedy to raise others. Id., at 93–94. The District
noted, however, that “further violations of [its] directives”
would be grounds for discipline or termination. Id., at 95.
Kennedy did not directly respond or suggest a satisfac-
tory accommodation. Instead, his attorneys told the media
that he would accept only demonstrative prayer on the 50-
yard line immediately after games. During the October 23
and October 26 games, Kennedy again prayed at the 50-
yard line immediately following the game, while postgame
activities were still ongoing. At the October 23 game, Ken-
nedy kneeled on the field alone with players standing
nearby. At the October 26 game, Kennedy prayed sur-
rounded by members of the public, including state repre-
sentatives who attended the game to support Kennedy. The
BHS players, after singing the fight song, joined Kennedy
at midfield after he stood up from praying.
Photograph of J. Kennedy in prayer circle (Oct. 26, 2015).
Cite as: 597 U. S. ____ (2022) 11
SOTOMAYOR, J., dissenting
In an October 28 letter, the District notified Kennedy
that it was placing him on paid administrative leave for vi-
olating its directives at the October 16, October 23, and Oc-
tober 26 games by kneeling on the field and praying imme-
diately following the games before rejoining the players for
postgame talks. The District recounted that it had offered
accommodations to, and offered to engage in further discus-
sions with, Kennedy to permit his religious exercise, and
that Kennedy had failed to respond to these offers. The Dis-
trict stressed that it remained willing to discuss possible
accommodations if Kennedy was willing.
After the issues with Kennedy arose, several parents
reached out to the District saying that their children had
participated in Kennedy’s prayers solely to avoid separat-
ing themselves from the rest of the team. No BHS students
appeared to pray on the field after Kennedy’s suspension.
In Kennedy’s annual review, the head coach of the varsity
team recommended Kennedy not be rehired because he
“failed to follow district policy,” “demonstrated a lack of co-
operation with administration,” “contributed to negative re-
lations between parents, students, community members,
coaches, and the school district,” and “failed to supervise
student-athletes after games due to his interactions with
media and community” members. Id., at 114. The head
coach himself also resigned after 11 years in that position,
expressing fears that he or his staff would be shot from the
crowd or otherwise attacked because of the turmoil created
by Kennedy’s media appearances. Three of five other assis-
tant coaches did not reapply.
C
Kennedy then filed suit. He contended, as relevant, that
the District violated his rights under the Free Speech and
Free Exercise Clauses of the First Amendment. Kennedy
moved for a preliminary injunction, which the District
12 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
Court denied based on the circumstances surrounding Ken-
nedy’s prayers. The court concluded that Kennedy had
“chose[n] a time and event,” the October 16 homecoming
game, that was “a big deal” for students, and then “used
that opportunity to convey his religious views” in a manner
a reasonable observer would have seen as a “public em-
ployee . . . leading an orchestrated session of faith.” App. to
Pet. for Cert. 303. The Court of Appeals affirmed, again
emphasizing the specific context of Kennedy’s prayers. The
court rejected Kennedy’s contention that he had been “pray-
ing on the fifty-yard line ‘silently and alone.’” Kennedy v.
Bremerton School Dist., 869 F. 3d 813, 825 (CA9 2017). The
court noted that he had in fact refused “an accommodation
permitting him to pray . . . after the stadium had emptied,”
“indicat[ing] that it is essential that his speech be delivered
in the presence of students and spectators.” Ibid. This
Court denied certiorari.
Following discovery, the District Court granted summary
judgment to the District. The court concluded that Ken-
nedy’s 50-yard-line prayers were not entitled to protection
under the Free Speech Clause because his speech was made
in his capacity as a public employee, not as a private citizen.
443 F. Supp. 3d 1223, 1237 (WD Wash. 2020). In addition,
the court held that Kennedy’s prayer practice violated the
Establishment Clause, reasoning that “speech from the cen-
ter of the football field immediately after each game . . . con-
veys official sanction.” Id., at 1238. That was especially
true where Kennedy, a school employee, initiated the
prayer; Kennedy was “joined by students or adults to create
a group of worshippers in a place the school controls access
to”; and Kennedy had a long “history of engaging in reli-
gious activity with players” that would have led a familiar
observer to believe that Kennedy was “continuing this tra-
dition” with prayer at the 50-yard line. Id., at 1238–1239.
The District Court further found that players had reported
Cite as: 597 U. S. ____ (2022) 13
SOTOMAYOR, J., dissenting
“feeling compelled to join Kennedy in prayer to stay con-
nected with the team or ensure playing time,” and that the
“slow accumulation of players joining Kennedy suggests ex-
actly the type of vulnerability to social pressure that makes
the Establishment Clause vital in the high school context.”
Id., at 1239. The court rejected Kennedy’s free exercise
claim, finding the District’s directive narrowly tailored to
its Establishment Clause concerns and citing Kennedy’s re-
fusal to cooperate in finding an accommodation that would
be acceptable to him. Id., at 1240.
The Court of Appeals affirmed, explaining that “the facts
in the record utterly belie [Kennedy’s] contention that the
prayer was personal and private.” 991 F. 3d 1004, 1017
(CA9 2021). The court instead concluded that Kennedy’s
speech constituted government speech, as he “repeatedly
acknowledged that—and behaved as if—he was a mentor,
motivational speaker, and role model to students specifi-
cally at the conclusion of the game.” Id., at 1015 (emphasis
deleted). In the alternative, the court concluded that Ken-
nedy’s speech, even if in his capacity as a private citizen,
was appropriately regulated by the District to avoid an Es-
tablishment Clause violation, emphasizing once more that
this conclusion was tied to the specific “evolution of Ken-
nedy’s prayer practice with students” over time. Id., at
1018. The court rejected Kennedy’s free exercise claim for
the reasons stated by the District Court. Id., at 1020. The
Court of Appeals denied rehearing en banc, and this Court
granted certiorari.
II
Properly understood, this case is not about the limits on
an individual’s ability to engage in private prayer at work.
This case is about whether a school district is required to
allow one of its employees to incorporate a public, commu-
nicative display of the employee’s personal religious beliefs
into a school event, where that display is recognizable as
14 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
part of a longstanding practice of the employee ministering
religion to students as the public watched. A school district
is not required to permit such conduct; in fact, the Estab-
lishment Clause prohibits it from doing so.
A
The Establishment Clause prohibits States from adopt-
ing laws “respecting an establishment of religion.” Amdt.
1; see Wallace v. Jaffree, 472 U. S. 38, 49 (1985) (recogniz-
ing the Clause’s incorporation against the States). The
First Amendment’s next Clause prohibits the government
from making any law “prohibiting the free exercise thereof.”
Taken together, these two Clauses (the Religion Clauses)
express the view, foundational to our constitutional system,
“that religious beliefs and religious expression are too pre-
cious to be either proscribed or prescribed by the State.” Lee
v. Weisman, 505 U. S. 577, 589 (1992). Instead, “preserva-
tion and transmission of religious beliefs and worship is a
responsibility and a choice committed to the private
sphere,” which has the “freedom to pursue that mission.”
Ibid.The Establishment Clause protects this freedom by “com-
mand[ing] a separation of church and state.” Cutter v. Wil-
kinson, 544 U. S. 709, 719 (2005). At its core, this means
forbidding “sponsorship, financial support, and active in-
volvement of the sovereign in religious activity.” Walz v.
Tax Comm’n of City of New York, 397 U. S. 664, 668 (1970).
In the context of public schools, it means that a State cannot
use “its public school system to aid any or all religious faiths
or sects in the dissemination of their doctrines and ideals.”
Illinois ex rel. McCollum v. Board of Ed. of School Dist. No.
71, Champaign Cty., 333 U. S. 203, 211 (1948).
Indeed, “[t]he Court has been particularly vigilant in
monitoring compliance with the Establishment Clause in
elementary and secondary schools.” Edwards v. Aguillard,
482 U. S. 578, 583–584 (1987). The reasons motivating this
Cite as: 597 U. S. ____ (2022) 15
SOTOMAYOR, J., dissenting
vigilance inhere in the nature of schools themselves and the
young people they serve. Two are relevant here.
First, government neutrality toward religion is particu-
larly important in the public school context given the role
public schools play in our society. “‘The public school is at
once the symbol of our democracy and the most pervasive
means for promoting our common destiny,’” meaning that
“‘[i]n no activity of the State is it more vital to keep out di-
visive forces than in its schools.’” Id. at 584. Families “en-
trust public schools with the education of their children . . .
on the understanding that the classroom will not purposely
be used to advance religious views that may conflict with
the private beliefs of the student and his or her family.”
Ibid. Accordingly, the Establishment Clause “proscribes
public schools from ‘conveying or attempting to convey a
message that religion or a particular religious belief is fa-
vored or preferred’” or otherwise endorsing religious be-
liefs. Lee, 505 U. S., at 604–605 (Blackmun, J., concurring)
(emphasis deleted).
Second, schools face a higher risk of unconstitutionally
“coerc[ing] . . . support or participat[ion] in religion or its
exercise” than other government entities. Id., at 587 (opin-
ion of the Court). The State “exerts great authority and co-
ercive power” in schools as a general matter “through man-
datory attendance requirements.” Edwards, 482 U. S., at
584. Moreover, the State exercises that great authority
over children, who are uniquely susceptible to “subtle coer-
cive pressure.” Lee, 505 U. S., at 588; cf. Town of Greece v.
Galloway, 572 U. S. 565, 590 (2014) (plurality opinion)
(“[M]ature adults,” unlike children, may not be “‘readily
susceptible to religious indoctrination or peer pressure’”).
Children are particularly vulnerable to coercion because of
their “emulation of teachers as role models” and “suscepti-
bility to peer pressure.” Edwards, 482 U. S., at 584. Ac-
cordingly, this Court has emphasized that “the State may
16 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
not, consistent with the Establishment Clause, place pri-
mary and secondary school children” in the dilemma of
choosing between “participating, with all that implies, or
protesting” a religious exercise in a public school. Lee, 505
U. S., at 593.
Given the twin Establishment Clause concerns of en-
dorsement and coercion, it is unsurprising that the Court
has consistently held integrating prayer into public school
activities to be unconstitutional, including when student
participation is not a formal requirement or prayer is silent.
See Wallace, 472 U. S. 38 (mandatory moment of silence for
prayer); School Dist. of Abington Township v. Schempp, 374
U. S. 203 (1963) (nonmandatory recitation of Bible verses
and prayer); Engel, 370 U. S., at 424 (nonmandatory recita-
tion of one-sentence prayer). The Court also has held that
incorporating a nondenominational general benediction
into a graduation ceremony is unconstitutional. Lee, 505
U. S. 577. Finally, this Court has held that including pray-
ers in student football games is unconstitutional, even
when delivered by students rather than staff and even
when students themselves initiated the prayer. Santa Fe
Independent School Dist. v. Doe, 530 U. S. 290 (2000).
B
Under these precedents, the Establishment Clause viola-
tion at hand is clear. This Court has held that a “[s]tate
officia[l] direct[ing] the performance of a formal religious
exercise” as a part of the “ceremon[y]” of a school event “con-
flicts with settled rules pertaining to prayer exercises for
students.” Lee, 505 U. S., at 586–587. Kennedy was on the
job as a school official “on government property” when he
incorporated a public, demonstrative prayer into “govern-
ment-sponsored school-related events” as a regularly sched-
uled feature of those events. Santa Fe, 530 U. S., at 302.
Kennedy’s tradition of a 50-yard line prayer thus strikes
at the heart of the Establishment Clause’s concerns about
Cite as: 597 U. S. ____ (2022) 17
SOTOMAYOR, J., dissenting
endorsement. For students and community members at the
game, Coach Kennedy was the face and the voice of the Dis-
trict during football games. The timing and location Ken-
nedy selected for his prayers were “clothed in the tradi-
tional indicia of school sporting events.” Id., at 308.
Kennedy spoke from the playing field, which was accessible
only to students and school employees, not to the general
public. Although the football game itself had ended, the
football game events had not; Kennedy himself acknowl-
edged that his responsibilities continued until the players
went home. Kennedy’s postgame responsibilities were
what placed Kennedy on the 50-yard line in the first place;
that was, after all, where he met the opposing team to
shake hands after the game. Permitting a school coach to
lead students and others he invited onto the field in prayer
at a predictable time after each game could only be viewed
as a postgame tradition occurring “with the approval of the
school administration.” Ibid.
Kennedy’s prayer practice also implicated the coercion
concerns at the center of this Court’s Establishment Clause
jurisprudence. This Court has previously recognized a
heightened potential for coercion where school officials are
involved, as their “effort[s] to monitor prayer will be per-
ceived by the students as inducing a participation they
might otherwise reject.” Lee, 505 U. S., at 590. The reasons
for fearing this pressure are self-evident. This Court has
recognized that students face immense social pressure.
Students look up to their teachers and coaches as role mod-
els and seek their approval. Students also depend on this
approval for tangible benefits. Players recognize that gain-
ing the coach’s approval may pay dividends small and large,
from extra playing time to a stronger letter of recommenda-
tion to additional support in college athletic recruiting. In
addition to these pressures to please their coaches, this
Court has recognized that players face “immense social
pressure” from their peers in the “extracurricular event
18 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
that is American high school football.” Santa Fe, 530 U. S.,
at 311.
The record before the Court bears this out. The District
Court found, in the evidentiary record, that some students
reported joining Kennedy’s prayer because they felt social
pressure to follow their coach and teammates. Kennedy
told the District that he began his prayers alone and that
players followed each other over time until a majority of the
team joined him, an evolution showing coercive pressure at
work.
Kennedy does not defend his longstanding practice of
leading the team in prayer out loud on the field as they
kneeled around him. Instead, he responds, and the Court
accepts, that his highly visible and demonstrative prayer at
the last three games before his suspension did not violate
the Establishment Clause because these prayers were quiet
and thus private. This Court’s precedents, however, do not
permit isolating government actions from their context in
determining whether they violate the Establishment
Clause. To the contrary, this Court has repeatedly stated
that Establishment Clause inquiries are fact specific and
require careful consideration of the origins and practical re-
ality of the specific practice at issue. See, e.g., id., at 315;
Lee, 505 U. S., at 597. In Santa Fe, the Court specifically
addressed how to determine whether the implementation of
a new policy regarding prayers at football games “insulates
the continuation of such prayers from constitutional scru-
tiny.” 530 U. S., at 315. The Court held that “inquiry into
this question not only can, but must, include an examina-
tion of the circumstances surrounding” the change in policy,
the “long-established tradition” before the change, and the
“‘unique circumstances’” of the school in question. Ibid.
This Court’s precedent thus does not permit treating Ken-
nedy’s “new” prayer practice as occurring on a blank slate,
any more than those in the District’s school community
would have experienced Kennedy’s changed practice (to the
Cite as: 597 U. S. ____ (2022) 19
SOTOMAYOR, J., dissenting
degree there was one) as erasing years of prior actions by
Kennedy.
Like the policy change in Santa Fe, Kennedy’s “changed”
prayers at these last three games were a clear continuation
of a “long-established tradition of sanctioning” school offi-
cial involvement in student prayers. Ibid. Students at the
three games following Kennedy’s changed practice wit-
nessed Kennedy kneeling at the same time and place where
he had led them in prayer for years. They witnessed their
peers from opposing teams joining Kennedy, just as they
had when Kennedy was leading joint team prayers. They
witnessed members of the public and state representatives
going onto the field to support Kennedy’s cause and pray
with him. Kennedy did nothing to stop this unauthorized
access to the field, a clear dereliction of his duties. The BHS
players in fact joined the crowd around Kennedy after he
stood up from praying at the last game. That BHS students
did not join Kennedy in these last three specific prayers did
not make those events compliant with the Establishment
Clause. The coercion to do so was evident. Kennedy him-
self apparently anticipated that his continued prayer prac-
tice would draw student participation, requesting that the
District agree that it would not “interfere” with students
joining him in the future. App. 71.
Finally, Kennedy stresses that he never formally re-
quired students to join him in his prayers. But existing
precedents do not require coercion to be explicit, particu-
larly when children are involved. To the contrary, this
Court’s Establishment Clause jurisprudence establishes
that “‘the government may no more use social pressure to
enforce orthodoxy than it may use more direct means.’”
Santa Fe, 530 U. S., at 312. Thus, the Court has held that
the Establishment Clause “will not permit” a school “‘to ex-
act religious conformity from a student as the price’ of join-
ing her classmates at a varsity football game.” Ibid. To
uphold a coach’s integration of prayer into the ceremony of
20 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
a football game, in the context of an established history of
the coach inviting student involvement in prayer, is to exact
precisely this price from students.
C
As the Court explains, see ante, at 15, Kennedy did not
“shed [his] constitutional rights . . . at the schoolhouse gate”
while on duty as a coach. Tinker v. Des Moines Independent
Community School Dist., 393 U. S. 503, 506 (1969). Consti-
tutional rights, however, are not absolutes. Rights often
conflict and balancing of interests is often required to pro-
tect the separate rights at issue. See Dobbs v. Jackson
Women’s Health Organization, 597 U. S. ___, ___ (2022)
(slip op., at 12) (BREYER, SOTOMAYOR, and KAGAN, JJ., dis-
senting) (noting that “the presence of countervailing inter-
ests . . . is what ma[kes]” a constitutional question “hard,
and what require[s] balancing”).
The particular tensions at issue in this case, between the
speech interests of the government and its employees and
between public institutions’ religious neutrality and private
individuals’ religious exercise, are far from novel. This
Court’s settled precedents offer guidance to assist courts,
governments, and the public in navigating these tensions.
Under these precedents, the District’s interest in avoiding
an Establishment Clause violation justified both its time
and place restrictions on Kennedy’s speech and his exercise
of religion.
First, as to Kennedy’s free speech claim, Kennedy “ac-
cept[ed] certain limitations” on his freedom of speech when
he accepted government employment. Garcetti v. Ceballos,
547 U. S. 410, 418 (2006). The Court has recognized that
“[g]overnment employers, like private employers, need a
significant degree of control over their employees’ words
and actions” to ensure “the efficient provision of public ser-
vices.” Ibid. Case law instructs balancing “the interests of
the teacher, as a citizen, in commenting upon matters of
Cite as: 597 U. S. ____ (2022) 21
SOTOMAYOR, J., dissenting
public concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees” to determine whose interests should
prevail. Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).
As the Court of Appeals below outlined, the District has
a strong argument that Kennedy’s speech, formally inte-
grated into the center of a District event, was speech in his
official capacity as an employee that is not entitled to First
Amendment protections at all. See Garcetti, 547 U. S., at
418; 991 F. 3d, at 1014–1016 (applying Garcetti).3 It is un-
necessary to resolve this question, however, because, even
assuming that Kennedy’s speech was in his capacity as a
private citizen, the District’s responsibilities under the Es-
tablishment Clause provided “adequate justification” for re-
stricting it. Garcetti, 547 U. S., at 418.
Similarly, Kennedy’s free exercise claim must be consid-
ered in light of the fact that he is a school official and, as
such, his participation in religious exercise can create Es-
tablishment Clause conflicts. Accordingly, his right to pray
at any time and in any manner he wishes while exercising
his professional duties is not absolute. See Lee, 505 U. S.,
——————
3The Court’s primary argument that Kennedy’s speech is not in his
official capacity is that he was permitted “to call home, check a text, [or]
socialize” during the time period in question. Ante, at 18–19. These truly
private, informal communications bear little resemblance, however, to
what Kennedy did. Kennedy explicitly sought to make his demonstrative
prayer a permanent ritual of the postgame events, at the physical center
of those events, where he was present by virtue of his job responsibilities,
and after years of giving prayer-filled motivational speeches to students
at the same relative time and location. In addition, Kennedy gathered
public officials and other members of the public onto the field to join him
in the prayer, contrary to school policies controlling access to the field.
Such behavior raises an entirely different risk of depriving the employer
of “control over what the employer itself has commissioned or created”
than an employee making a call home on the sidelines, fleetingly check-
ing email, or pausing to hug a friend in the crowd. Garcetti, 547 U. S., at
422.
22 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
at 587 (noting that a school official’s choice to integrate a
prayer is “attributable to the State”). As the Court ex-
plains, see ante, at 13–14, the parties agree (and I therefore
assume) that for the purposes of Kennedy’s claim, the bur-
den is on the District to establish that its policy prohibiting
Kennedy’s public prayers was the least restrictive means of
furthering a compelling state interest. Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).
Here, the District’s directive prohibiting Kennedy’s
demonstrative speech at the 50-yard line was narrowly tai-
lored to avoid an Establishment Clause violation. The Dis-
trict’s suspension of Kennedy followed a long history. The
last three games proved that Kennedy did not intend to
pray silently, but to thrust the District into incorporating a
religious ceremony into its events, as he invited others to
join his prayer and anticipated in his communications with
the District that students would want to join as well. No-
tably, the District repeatedly sought to work with Kennedy
to develop an accommodation to permit him to engage in
religious exercise during or after his game-related respon-
sibilities. Kennedy, however, ultimately refused to respond
to the District’s suggestions and declined to communicate
with the District, except through media appearances. Be-
cause the District’s valid Establishment Clause concerns
satisfy strict scrutiny, Kennedy’s free exercise claim fails as
well.
III
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,
Cite as: 597 U. S. ____ (2022) 23
SOTOMAYOR, J., dissenting
concurrences, and dissents by Members of the current ma-
jority to effect fundamental changes in this Court’s Religion
Clauses jurisprudence, all the while proclaiming that noth-
ing has changed at all.
A
This case involves three Clauses of the First Amend-
ment. As a threshold matter, the Court today proceeds
from two mistaken understandings of the way the protec-
tions these Clauses embody interact.
First, the Court describes the Free Exercise and Free
Speech Clauses as “work[ing] in tandem” to “provid[e] over-
lapping protection for expressive religious activities,” leav-
ing religious speech “doubly protect[ed].” Ante, at 11. This
narrative noticeably (and improperly) sets the Establish-
ment Clause to the side. The Court is correct that certain
expressive religious activities may fall within the ambit of
both the Free Speech Clause and the Free Exercise Clause,
but “the First Amendment protects speech and religion by
quite different mechanisms.” Lee, 505 U. S., at 591. The
First Amendment protects speech “by ensuring its full ex-
pression even when the government participates.” Ibid. Its
“method for protecting freedom of worship and freedom of
conscience in religious matters is quite the reverse,” how-
ever, based on the understanding that “the government is
not a prime participant” in “religious debate or expression,”
whereas government is the “object of some of our most im-
portant speech.” Ibid. Thus, as this Court has explained,
while the Free Exercise Clause has “close parallels in the
speech provisions of the First Amendment,” the First
Amendment’s protections for religion diverge from those for
speech because of the Establishment Clause, which pro-
vides a “specific prohibition on forms of state intervention
in religious affairs with no precise counterpart in the speech
provisions.” Ibid. Therefore, while our Constitution “coun-
24 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
sel[s] mutual respect and tolerance,” the Constitution’s vi-
sion of how to achieve this end does in fact involve some
“singl[ing] out” of religious speech by the government. Ante,
at 1. This is consistent with “the lesson of history that was
and is the inspiration for the Establishment Clause, the les-
son that in the hands of government what might begin as a
tolerant expression of religious views may end in a policy to
indoctrinate and coerce.” Lee, 505 U. S., at 591–592.
Second, the Court contends that the lower courts erred by
introducing a false tension between the Free Exercise and
Establishment Clauses. See ante, at 20–21. The Court,
however, has long recognized that these two Clauses, while
“express[ing] complementary values,” “often exert conflict-
ing pressures.” Cutter, 544 U. S., at 719. See also Locke v.
Davey, 540 U. S. 712, 718 (2004) (describing the Clauses as
“frequently in tension”). The “absolute terms” of the two
Clauses mean that they “tend to clash” if “expanded to a
logical extreme.” Walz, 397 U. S., at 668–669.
The Court inaccurately implies that the courts below re-
lied upon a rule that the Establishment Clause must al-
ways “prevail” over the Free Exercise Clause. Ante, at 20.
In focusing almost exclusively on Kennedy’s free exercise
claim, however, and declining to recognize the conflicting
rights at issue, the Court substitutes one supposed blanket
rule for another. The proper response where tension arises
between the two Clauses is not to ignore it, which effec-
tively silently elevates one party’s right above others. The
proper response is to identify the tension and balance the
interests based on a careful analysis of “whether [the] par-
ticular acts in question are intended to establish or inter-
fere with religious beliefs and practices or have the effect of
doing so.” Walz, 397 U. S., at 669. As discussed above, that
inquiry leads to the conclusion that permitting Kennedy’s
desired religious practice at the time and place of his choos-
ing, without regard to the legitimate needs of his employer,
violates the Establishment Clause in the particular context
Cite as: 597 U. S. ____ (2022) 25
SOTOMAYOR, J., dissenting
at issue here. Supra, at 16–20.
B
For decades, the Court has recognized that, in determin-
ing whether a school has violated the Establishment
Clause, “one of the relevant questions is whether an objec-
tive observer, acquainted with the text, legislative history,
and implementation of the [practice], would perceive it as a
state endorsement of prayer in public schools.” Santa Fe,
530 U. S., at 308 (internal quotation marks omitted). The
Court now says for the first time that endorsement simply
does not matter, and completely repudiates the test estab-
lished in Lemon, 403 U. S. 602. Ante, at 22–24. Both of
these moves are erroneous and, despite the Court’s assur-
ances, novel.
Start with endorsement. The Court reserves particular
criticism for the longstanding understanding that govern-
ment action that appears to endorse religion violates the
Establishment Clause, which it describes as an “offshoot” of
Lemon and paints as a “‘modified heckler’s veto, in which
. . . religious activity can be proscribed’” based on “ ‘“percep-
tions”’” or “‘“discomfort.”’” Ante, at 21–22 (quoting Good
News Club v. Milford Central School, 533 U. S. 98, 119
(2001)). This is a strawman. Precedent long has recognized
that endorsement concerns under the Establishment
Clause, properly understood, bear no relation to a “‘heck-
ler’s veto.’” Ante, as 22. Good News Club itself explained
the difference between the two: The endorsement inquiry
considers the perspective not of just any hypothetical or un-
informed observer experiencing subjective discomfort, but
of “‘the reasonable observer’” who is “‘aware of the history
and context of the community and forum in which the reli-
gious [speech takes place].’” 533 U. S., at 119. That is be-
cause “‘the endorsement inquiry is not about the percep-
tions of particular individuals or saving isolated
nonadherents from . . . discomfort’” but concern “‘with the
26 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
political community writ large.’” Ibid. (emphasis deleted).
Given this concern for the political community, it is un-
surprising that the Court has long prioritized endorsement
concerns in the context of public education. See, e.g.,
Santa Fe, 530 U. S., at 305; Wallace, 472 U. S., at 60–61;
Edwards, 482 U. S., at 578, 593; see also Lee, 505 U. S., at 618–619 (Souter, J., concurring) (explaining that many of
the Court’s Establishment Clause holdings in the school
context are concerned not with whether the policy in ques-
tion “coerced students to participate in prayer” but with
whether it “‘convey[ed] a message of state approval of
prayer activities in the public schools’” (quoting Wallace,
472 U. S., at 61)).4 No subsequent decisions in other con-
texts, including the cases about monuments and legislative
meetings on which the Court relies, have so much as ques-
tioned the application of this core Establishment Clause
concern in the context of public schools. In fact, Town of
Greece v. Galloway, 572 U. S. 565, which held a prayer dur-
ing a town meeting permissible, specifically distinguished
Lee because Lee considered the Establishment Clause in the
context of schools. 572 U. S., at 590 (plurality opinion).
Paying heed to these precedents would not “‘purge from
the public sphere’ anything an observer could reasonably
infer endorses” religion. Ante, at 22. To the contrary, the
Court has recognized that “there will be instances when re-
ligious values, religious practices, and religious persons will
have some interaction with the public schools and their stu-
dents.” Lee, 505 U. S., at 598–599. These instances, the
Court has said, are “often questions of accommodat[ing]” re-
ligious practices to the degree possible while respecting the
——————
4 The Court attempts to recast Lee and Santa Fe as solely concerning
coercion, ante, at 29–30, but both cases emphasized that it was important
to avoid appearances of “ ‘state endorsement of prayer in public schools.’ ”
Santa Fe, 530 U. S., at 308; see Lee, 505 U. S., at 590 (finding that the
“degree of school involvement” indicated that the “prayers bore the im-
print of the State”).
Cite as: 597 U. S. ____ (2022) 27
SOTOMAYOR, J., dissenting
Establishment Clause. Id., at 599.5 In short, the endorse-
ment inquiry dictated by precedent is a measured, practi-
cal, and administrable one, designed to account for the com-
peting interests present within any given community.
Despite all of this authority, the Court claims that it “long
ago abandoned” both the “endorsement test” and this
Court’s decision in Lemon 403 U. S. 602. Ante, at 22. The
Court chiefly cites the plurality opinion in American Legion
v. American Humanist Assn., 588 U. S. ___ (2019) to sup-
port this contention. That plurality opinion, to be sure, crit-
icized Lemon’s effort at establishing a “grand unified theory
of the Establishment Clause” as poorly suited to the broad
“array” of diverse establishment claims. 588 U. S., at ___,
___ (slip op., at 13, 24). All the Court in American Legion
ultimately held, however, was that application of the
Lemon test to “longstanding monuments, symbols, and
practices” was ill-advised for reasons specific to those con-
texts. 588 U. S., at ___ (slip op., at 16); see also id., at ___–
___ (slip op., at 16–21) (discussing at some length why the
Lemon test was a poor fit for those circumstances). The only
categorical rejection of Lemon in American Legion appeared
in separate writings. See 588 U. S., at ___ (slip op., at 1)
(KAVANAUGH, J., concurring); id., at ___ (slip op., at 6)
——————
5The notion that integration of religious practices into the workplace
may require compromise and accommodation is not unique to the public-
employer context where Establishment Clause concerns arise. The
Court’s precedents on religious discrimination claims similarly recognize
that the employment context requires balancing employer and employee
interests, and that religious practice need not always be accommodated.
See Kennedy v. Bremerton School Dist., 586 U. S. ___, ___ (2019) (slip op.,
at 6) (ALITO, J., statement respecting denial of certiorari) (noting that
“Title VII’s prohibition of discrimination on the basis of religion does not
require an employer to make any accommodation that imposes more
than a de minimis burden”). Surely, an employee’s religious practice that
forces a school district to engage in burdensome measures to stop spec-
tators from rushing onto a field and knocking people down imposes much
more than a de minimis burden.
28 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
(THOMAS, J., concurring in judgment); id., at ___ (slip op.,
at 7) (GORSUCH, J., concurring in judgment); see ante, at 23,
n. 4.6
The Court now goes much further, overruling Lemon en-
tirely and in all contexts. It is wrong to do so. Lemon sum-
marized “the cumulative criteria developed by the Court
over many years” of experience “draw[ing] lines” as to when
government engagement with religion violated the Estab-
lishment Clause. 403 U. S., at 612. Lemon properly con-
cluded that precedent generally directed consideration of
whether the government action had a “secular legislative
purpose,” whether its “principal or primary effect must be
one that neither advances nor inhibits religion,” and
whether in practice it “foster[s] ‘an excessive government
entanglement with religion.’” Id., at 612–613. It is true
“that rigid application of the Lemon test does not solve
every Establishment Clause problem,” but that does not
mean that the test has no value. American Legion, 588
U. S., at ___ (slip op., at 1) (KAGAN, J., concurring in part).
To put it plainly, the purposes and effects of a govern-
ment action matter in evaluating whether that action vio-
lates the Establishment Clause, as numerous precedents
beyond Lemon instruct in the particular context of public
schools. See supra, at 14–16, 18. Neither the critiques of
Lemon as setting out a dispositive test for all seasons nor
——————
6The Court also cites Shurtleff v. Boston, 596 U. S. ___ (2022), as evi-
dence that the Lemon test has been rejected. See ante, at 23. Again,
while separate writings in Shurtleff criticized Lemon, the Court did not.
The opinion of the Court simply applied the longstanding rule that, when
the government does not speak for itself, it cannot exclude speech based
on the speech’s “ ‘religious viewpoint.’ ” Shurtleff, 596 U. S., at ___ (slip
op., at 12) (quoting Good News Club, 533 U. S., at 112). The Court fur-
ther infers Lemon’s implicit overruling from recent decisions that do not
apply its test. See ante, at 23, n. 4. As explained above, however, not
applying a test in a given case is a different matter from overruling it
entirely and, moreover, the Court has never before questioned the rele-
vance of endorsement in the school-prayer context.
Cite as: 597 U. S. ____ (2022) 29
SOTOMAYOR, J., dissenting
the fact that the Court has not referred to Lemon in all sit-
uations support this Court’s decision to dismiss that prece-
dent entirely, particularly in the school context.
C
Upon overruling one “grand unified theory,” the Court in-
troduces another: It holds that courts must interpret
whether an Establishment Clause violation has occurred
mainly “by ‘reference to historical practices and under-
standings.’” Ante, at 23 (quoting Town of Greece, 572 U. S.,
at 576 (internal quotation marks omitted)). Here again, the
Court professes that nothing has changed. In fact, while
the Court has long referred to historical practice as one el-
ement of the analysis in specific Establishment Clause
cases, the Court has never announced this as a general test
or exclusive focus. American Legion, 588 U. S., at ___–___
(BREYER, J., concurring) (slip op., at 2–3) (noting that the
Court was “appropriately ‘look[ing] to history for guidance’”
but was not “adopt[ing] a ‘history and tradition test’”).
The Court reserves any meaningful explanation of its his-
tory-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. See Dobbs, 597 U. S., at ___ (BREYER,
SOTOMAYOR, and KAGAN, JJ., dissenting) (slip op., at 16)
(explaining that the Framers “defined rights in general
terms to permit future evolution in their scope and mean-
ing”); New York State Rifle & Pistol Assn., Inc. v. Bruen, 597
U. S. ___, ___–___ (2022) (BREYER, J., dissenting) (slip op.,
at 24–28) (explaining the pitfalls of a “near-exclusive reli-
ance on history” and offering examples of when this Court
has “misread” history in the past); Brown v. Davenport, 596
U. S. ___, ___–___ (2022) (KAGAN, J., dissenting) (slip op., at
30 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
7–8) (noting the inaccuracies risked when courts “play am-
ateur historian”).
For now, it suffices to say that the Court’s history-and-
tradition test offers essentially no guidance for school ad-
ministrators. If even judges and Justices, with full adver-
sarial briefing and argument tailored to precise legal is-
sues, 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.
D
Finally, the Court acknowledges that the Establishment
Clause prohibits the government from coercing people to
engage in religion practice, ante, at 24–25, 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.’” Ante, at 25 (emphasis added). The
Court’s suggestion that coercion must be “direc[t]” to be cog-
nizable under the Establishment Clause is contrary to long-
established precedent. The Court repeatedly has recog-
nized that indirect coercion may raise serious establish-
ment concerns, and that “there are heightened concerns
with protecting freedom of conscience from subtle coercive
pressure in the elementary and secondary public schools.”
Lee, 505 U. S., at 592 (opinion of the Court); see also supra,
at 15–16. Tellingly, none of this Court’s major cases involv-
ing school prayer concerned school practices that required
Cite as: 597 U. S. ____ (2022) 31
SOTOMAYOR, J., dissenting
students to do any more than listen silently to prayers, and
some did not even formally require students to listen, in-
stead providing that attendance was not mandatory. See
Santa Fe, 530 U. S., at 296–298; Lee, 505 U. S., at 593; Wal-
lace, 472 U. S., at 40; School Dist. of Abington Township,
374 U. S., at 205; Engel, 370 U. S., at 422. Nevertheless,
the Court concluded that the practices were coercive as a
constitutional matter.
Today’s Court quotes the Lee Court’s remark that endur-
ing others’ speech is “‘part of learning how to live in a plu-
ralistic society.’” Ante, at 26 (quoting Lee, 505 U. S., at
590). The Lee Court, however, expressly concluded, in the
very same paragraph, that “[t]his argument cannot prevail”
in the school-prayer context because the notion that being
subject to a “brief ” prayer in school is acceptable “overlooks
a fundamental dynamic of the Constitution”: its “specific
prohibition on . . . state intervention in religious affairs.”
Id., at 591; see also id., at 594 (“[T]he government may no
more use social pressure to enforce orthodoxy than it may
use more direct means”).7
The Court also distinguishes Santa Fe because Ken-
nedy’s prayers “were not publicly broadcast or recited to a
captive audience.” Ante, at 30. 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
——————
7The Court further claims that Lee is distinguishable because it in-
volved prayer at an event in which the school had “ ‘in every practical
sense compelled attendance and participation in [a] religious exercise.’ ”
Ante, at 29 (quoting Lee, 505 U. S., at 598). The Court in Lee, however,
recognized expressly that attendance at the graduation ceremony was
not mandatory and that students who attended only had to remain silent
during and after the prayers. Id., at 583, 593.
32 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
themselves” were, and the Court would have found an “im-
proper effect of coercing those present” even if it “regard[ed]
every high school student’s decision to attend . . . as purely
voluntary.” Id., at 311–312. Kennedy’s prayers raise pre-
cisely 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 pray-
ers had a greater coercive potential because they were de-
livered 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 stu-
dents 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.”
Ante, at 26; see also ante, at 30, n. 7 (contending that the
fact that “students might choose, unprompted, to partici-
pate” in their coach’s on-the-field prayers does not “neces-
sarily prove them coercive”). But nowhere does the Court
engage with the unique coercive power of a coach’s actions
on his adolescent players.8
In any event, the Court makes this assertion only by
drawing a bright line between Kennedy’s yearslong practice
of leading student prayers, which the Court does not de-
——————
8Puzzlingly, the Court goes a step further and suggests that Kennedy
may have been in violation of the District policy on Religious-Related
Activities and Practices if he did not permit the players to join his pray-
ers because the policy prohibited staff from “discourag[ing]” student
prayer. Ante, at 4, 30, n. 7. The policy, however, specifically referred to
student prayer of the student’s “own volition” and equally prohibited
staff from “encourag[ing]” student prayer. App. 28.
Cite as: 597 U. S. ____ (2022) 33
SOTOMAYOR, J., dissenting
fend, and Kennedy’s final three prayers, which BHS stu-
dents did not join, but student peers from the other teams
did. See ante, at 26 (distinguishing Kennedy’s prior prac-
tice and focusing narrowly on “three prayers . . . in October
2015”). As discussed above, see supra, at 18, this mode of
analysis contravenes precedent by “turn[ing] a blind eye to
the context in which [Kennedy’s practice] arose,” Santa Fe,
530 U. S., at 315.9 This Court’s precedents require a more
nuanced inquiry into the realities of coercion in the specific
school context concerned than the majority recognizes to-
day. The question before the Court is not whether a coach
taking a knee to pray on the field would constitute an Es-
tablishment Clause violation in any and all circumstances.
It is whether permitting Kennedy to continue a demonstra-
tive 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 Ken-
nedy’s three-game practice distinguishable from precedent
——————
9The Court claims that Kennedy’s “past prayer practices” should not
be seen to “taint” his current ones by again turning to Town of Greece v.
Galloway, the town assembly prayer case. Ante, at 30, n. 7. In the pas-
sage the Court cites, Town of Greece concluded that “two remarks” by two
different “guest minister[s]” on two isolated occasions did not constitute
a “pattern of prayers that over time denigrate, proselytize, or betray an
impermissible government purpose.” 572 U. S., at 585. As Town of
Greece itself emphasizes, the school context presents Establishment
Clause concerns distinct from those raised in a town meeting for “mature
adults.” Id., at 590 (plurality opinion). See supra, at 15. In any event,
Kennedy’s yearslong “past prayer practices” constituted an established
pattern, not an isolated occasion, and he hardly “abandoned” the prac-
tice. Ante, at 30, n. 7. As his October 14 letter and subsequent actions
made clear, Kennedy attempted to hew as closely to his past practice as
possible, taking a knee at the same time and place as previously, and in
the same manner that initially drew students to join him and by improp-
erly permitting spectators to join him on the field.
34 KENNEDY v. BREMERTON SCHOOL DIST.
SOTOMAYOR, J., dissenting
because the prayers were “quie[t]” and the students were
otherwise “occupied.” Ante, at 26. 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 “voluntar-
ily” and pray. App. 64, 69–71. Notably, the Court today
does not embrace this demand, but it nonetheless rejects
the District’s right to ensure that students were not pres-
sured 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.” Ante, at 28. Nor has anyone contended that a
coach may never visibly pray on the field. The courts below
simply recognized that Kennedy continued to initiate pray-
ers 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, noth-
ing 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 em-
ployment action against Kennedy.
* * *
The Free Exercise Clause and Establishment Clause are
equally integral in protecting religious freedom in our soci-
ety. The first serves as “a promise from our government,”
Cite as: 597 U. S. ____ (2022) 35
SOTOMAYOR, J., dissenting
while the second erects a “backstop that disables our gov-
ernment from breaking it” and “start[ing] us down the path
to the past, when [the right to free exercise] was routinely
abridged.” Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissent-
ing) (slip op., at 26).
Today, the Court once again weakens the backstop. It
elevates one individual’s interest in personal religious exer-
cise, in the exact time and place of that individual’s choos-
ing, over society’s interest in protecting the separation be-
tween church and state, eroding the protections for
religious liberty for all. Today’s decision is particularly mis-
guided 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 fur-
ther 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, to-
day’s decision is no victory for religious liberty. I respect-
fully dissent.