NOTICE: This opinion is subject to
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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 period when
school employees were free to speak with a friend, call for a
reservation at a restaurant, check email, or attend to other
personal matters. He offered his prayers quietly while his students
were otherwise occupied. Still, the Bremerton School District
disciplined him anyway. It did so because it thought anything less
could lead a reasonable observer to conclude (mistakenly) that it
endorsed Mr. Kennedy’s religious beliefs. That reasoning was
misguided. Both the Free Exercise and Free Speech Clauses of the
First Amendment protect expressions like Mr. Kennedy’s. Nor does a
proper understanding of the Amendment’s Establishment Clause
require the government to single out private religious speech for
special disfavor. The Constitution and the best of our traditions
counsel mutual respect and tolerance, not censorship and
suppression, for religious and nonreligious views alike.
I
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. Kennedy 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 “approximately 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 members invited opposing
players to join. Other times Mr. Kennedy still prayed alone. See
ibid. Eventually, Mr. Kennedy began incorporating short
motivational speeches with his prayer when others were present. See
id., at 170. Separately, the team at times engaged in
pregame or postgame prayers in the locker room. It seems this
practice was a “school tradition” that predated Mr. Kennedy’s
tenure.
Ibid. Mr. Kennedy explained that he “never told any
student that it was important they participate in any religious
activity.”
Ibid. In particular, he “never pressured or
encouraged any student to join” his postgame midfield prayers.
Ibid.
For over seven years, no one complained to the
Bremerton School District (District) about these practices. See
id., 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. Kennedy had provided “inspirational talk[s]” that
included “overtly religious references” likely constituting
“prayer” with the students “at midfield following the completion of
. . . game[s].”
Ibid. Second, he had led “students
and coaching staff in a prayer” in the locker-room tradition that
“predated [his] involvement with the program.”
Id., at
41.
The District explained that it sought to
establish “clear parameters” “going forward.”
Ibid. It
instructed Mr. Kennedy to avoid any motivational “talks with
students” that “include[d] religious expression, including prayer,”
and to avoid “suggest[ing], encourag[ing] (or discourag[ing]), or
supervis[ing]” any prayers of students, which students remained
free to “engage in.”
Id., at 44. The District also explained
that any religious activity on Mr. Kennedy’s part must be
“nondemonstrative (
i.e., not outwardly discernible as
religious activity)” if “students are also engaged in religious
conduct” in order to “avoid the perception of endorsement.”
Id., at 45. In offering these directives, the District
appealed to what it called a “direct tension between” the
“Establishment Clause” and “a school employee’s [right to] free[ly]
exercise” his religion.
Id., at 43. To resolve that
“tension,” the District explained, an employee’s free exercise
rights “must yield so far as necessary to avoid school endorsement
of religious activities.”
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 prayer
into his postgame motivational talks to his team on the field. See
ibid. Mr. Kennedy further felt pressured to abandon his
practice of saying his own quiet, on-field postgame prayer. 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 letter to school officials informing them that, because of his
“sincerely-held religious beliefs,” he felt “compelled” to offer a
“post-game personal prayer” of thanks at midfield.
Id., at
62–63, 172. He asked the District to allow him to continue that
“private religious expression” alone.
Id., at 62. Consistent
with the District’s policy, see
id., at 48, Mr. Kennedy
explained that he “neither requests, encourages, nor discourages
students from participating in” these prayers,
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 everybody” 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 implication of the District’s September 17
letter, which he understood as banning him “from bowing his head”
in the vicinity of students, and as requiring him to “flee the
scene if students voluntarily [came] to the same area” where he was
praying.
Id., at 70. After all, District policy prohibited
him from “discourag[ing]” independent student decisions to pray.
Id., at 44.
On October 16, shortly before the game that day,
the District responded with another letter. See
id., at 76.
The District acknowledged that Mr. Kennedy “ha[d] complied” with
the “directives” in its September 17 letter.
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 dilemma and a public
response from the District. The District placed robocalls to
parents to inform them that public access to the field is
forbidden; it posted signs and made announcements at games saying
the same thing; and it had the Bremerton Police secure the field in
future games.
Id., at 100–101, 354–355. Subsequently, the
District superintendent explained in an October 20 email to the
leader of a state association of school administrators that “the
coach moved on from leading prayer with kids, to taking a silent
prayer at the 50 yard line.”
Id., at 83. The official with
whom the superintendent corresponded acknowledged that 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
“appreciation” for his “efforts to comply” with the District’s
directives, including avoiding “on-the-job prayer with players in
the . . . football program, both in the locker room
prior to games as well as on the field immediately following
games.”
Id., at 90. The letter also admitted that, during
Mr. Kennedy’s recent October 16 postgame prayer, his students were
otherwise engaged and not praying with him, and that his prayer was
“fleeting.”
Id., at 90, 93. Still, the District explained
that a “reasonable observer” could think government endorsement of
religion had occurred when a “District employee, on the field only
by virtue of his employment with the District, still on duty”
engaged in “overtly religious conduct.”
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 engaged 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 443 F. Supp. 3d, at 1231; App.
97. Later, Mr. Kennedy rejoined his players for a postgame talk,
after they had finished 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 program activities.”
Ibid. In a
letter explaining the reasons for this disciplinary action, the
superintendent criticized Mr. Kennedy for engaging in “public and
demonstrative religious conduct while still on duty as an assistant
coach” by offering a prayer following the games on October 16, 23,
and 26.
Id., at 102. The letter did not allege that Mr.
Kennedy performed these prayers with students, and it acknowledged
that his prayers took place while students were engaged in
unrelated postgame activities.
Id., at 103. Additionally,
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 . . . Establishment Clause”
because “reasonable . . . students and attendees” might
perceive the “district [as] endors[ing] . . . religion.”
Id., at 105.
While Mr. Kennedy received “uniformly positive
evaluations” every other year of his coaching career, after the
2015 season ended in November, the District gave him a poor
performance evaluation.
Kennedy v.
Bremerton School
Dist., 869 F.3d 813, 820 (CA9 2017). The evaluation advised
against rehiring Mr. Kennedy on the grounds that he “ ‘failed
to follow district policy’ ” regarding religious expression
and “ ‘failed to supervise student-athletes after
games.’ ”
Ibid. Mr. Kennedy did not return for the next
season.
Ibid.
II
A
After these events, Mr. Kennedy sued in
federal court, alleging that the District’s actions violated the
First Amendment’s Free Speech and Free Exercise Clauses. App. 145,
160–164. He also moved for a preliminary injunction requiring the
District to reinstate him. The District Court denied that motion,
concluding that a “reasonable observer . . . would
have seen him as . . . leading an orchestrated 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 decision
. . . below.”
Kennedy v.
Bremerton School
Dist., 586 U. S. ___, ___ (2019) (slip op., at 1). Justice
Alito expressed 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 ___
(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
District Court found that the “ ‘sole reason’ ” for the
District’s decision to suspend Mr. Kennedy was its perceived “risk
of constitutional liability” under the Establishment Clause for his
“religious conduct” after the October 16, 23, and 26 games. 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 “influential
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. Alternatively, 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 generally 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 Establishment
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 with
communicating with students, was speech as a government 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 citizen,” the District had an
“adequate justification” for its actions.
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 “neutral
and generally applicable” and instead “restrict[ed] Kennedy’s
religious conduct because the conduct [was] religious.”
Id.,
at 1020. Still, the court ruled, the District “had a compelling
state interest to avoid violating the Establishment Clause,” and
its suspension was narrowly tailored to vindicate that interest.
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 Establishment 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
Establishment Clause is implicated whenever a hypothetical
reasonable 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 abandoned that
“ahistorical, atextual” approach to discerning “Establishment
Clause violations”; they observed that other courts around the
country have followed suit by renouncing it too; and they contended
that the panel should have likewise “recognized
Lemon’s
demise and wisely left it dead.”
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 accident. It is a natural outgrowth of the
framers’ distrust of government attempts to regulate religion and
suppress dissent. See,
e.g., A Memorial and Remonstrance
Against Religious Assessments, in Selected Writings of James
Madison 21, 25 (R. Ketcham ed. 2006). “[I]n Anglo–American history,
. . . government suppression of speech has so commonly
been directed
precisely at religious speech that a
free-speech clause without religion would be Hamlet without 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 tailored consistent with
the demands of our case law. See,
e.g.,
Fulton v.
Philadelphia, 593 U. S. ___, ___–___, ___ (2021) (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 burdened
his sincere religious practice pursuant to a policy that is not
“neutral” or “generally applicable.”
Id., at 879–881. Should
a plaintiff make a showing like that, this Court will find a First
Amendment violation unless the government can satisfy “strict
scrutiny” by demonstrating its course was justified by a compelling
state interest and was narrowly tailored in pursuit of that
interest.
Lukumi, 508 U. S., at 546.[
1]
That Mr. Kennedy has discharged his burdens is
effectively undisputed. No one questions that he seeks to engage in
a sincerely motivated religious exercise. The exercise in question
involves, as Mr. Kennedy has put it, giving “thanks through prayer”
briefly and by himself “on the playing field” at the conclusion of
each game he coaches. 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 leading prayers with the team or before any other captive
audience. 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.
Kennedy’s brief prayer, the District failed to act pursuant to a
neutral and generally applicable rule. A government policy will not
qualify as neutral if it is “specifically directed at
. . . religious practice.”
Smith, 494 U. S.,
at 878. 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 religious conduct while
permitting secular conduct that undermines the government’s
asserted interests in a similar way,” or if it provides “a
mechanism for individualized exemptions.”
Fulton, 593
U. S., at ___ (slip op., at 6). Failing either the neutrality
or general applicability test is sufficient to trigger strict
scrutiny. See
Lukumi, 508 U. S., at 546.
In this case, the District’s challenged policies
were neither neutral nor generally applicable. By its own
admission, the District sought to restrict Mr. Kennedy’s actions at
least in part because of their religious character. 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-initiated 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 unquestioned “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 applicability test. The District’s performance evaluation
after the 2015 football season advised against rehiring Mr. Kennedy
on the ground that he “failed to supervise student- athletes after
games.” App. 114. But, in fact, this was a bespoke requirement
specifically addressed to Mr. Kennedy’s religious exercise. The
District permitted other members of the coaching staff to forgo
supervising students briefly after the game to do things like visit
with friends or take personal phone calls. App. 205; see also Part
I–B,
supra. 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 “generally
applicable.” 991 F. 3d, at 1020.
B
When it comes to Mr. Kennedy’s free speech
claim, our precedents remind us that the First Amendment’s
protections extend to “teachers and students,” neither of whom
“shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”
Tinker v.
Des Moines
Independent Community School 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 government
employees paid in part to speak on the government’s behalf and
convey its intended messages.
To account for the complexity associated with
the interplay between free speech rights and government employment,
this Court’s decisions 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 Amendment may
be implicated and courts should proceed to a second step.
Id., at 423. At this second step, our cases suggest that
courts should attempt to engage in “a delicate balancing of the
competing interests surrounding the speech and its consequences.”
Ibid. Among other things, courts at this second step have
sometimes considered whether an employee’s speech interests are
outweighed by “ ‘the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees.’ ”
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” beyond 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 government speech attributable to the
District?
Our cases offer some helpful guidance for
resolving this question. In
Garcetti, the Court concluded
that a prosecutor’s internal memorandum to a supervisor was made
“pursuant to [his] official duties,” and thus ineligible for First
Amendment protection. 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 government speech because it
was speech the government “itself ha[d] commissioned or created”
and speech the employee was expected to deliver in the course of
carrying out his job.
Id., at 422.
By contrast, in
Lane a public employer
sought to terminate an employee after he testified at a criminal
trial about matters involving his government employment. 573
U. S., at 233. The Court held that the employee’s speech was
protected 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 proceed otherwise would be to allow
public employers to use “excessively broad job descriptions” to
subvert the Constitution’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 uttered the three
prayers that resulted in his suspension, he was not engaged in
speech “ordinarily within the scope” of his duties as a coach.
Lane, 573 U. S., at 240. He did not speak pursuant to
government policy. He was not seeking to convey a
government-created message. He was not instructing players,
discussing strategy, encouraging better on-field performance, or
engaged in any other speech the District paid him to produce as a
coach. See Part I–B,
supra. Simply put: Mr. Kennedy’s
prayers did not “ow[e their] existence” to Mr. Kennedy’s
responsibilities as a public employee.
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 personal
matters—everything from checking sports scores on their phones to
greeting friends and family in the stands. App. 205; see Part I–B,
supra. We find it unlikely that Mr. Kennedy was fulfilling a
responsibility imposed by his employment by praying during a period
in which the District has acknowledged that its coaching staff was
free to engage in all manner of private speech. That Mr. Kennedy
offered his prayers when students were engaged in other activities
like singing the school fight song further suggests that those
prayers were not delivered as an address to the team, but instead
in his capacity as a private citizen. Nor is it dispositive that
Mr. Kennedy’s prayers took place “within the office”
environment—here, on the field of play.
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 substance of Mr. Kennedy’s
speech and the circumstances surrounding it point to the conclusion
that he did not.
In reaching its contrary conclusion, the Ninth
Circuit stressed that, as a coach, Mr. Kennedy served as a role
model “clothed with the mantle of one who imparts knowledge and
wisdom.” 991 F. 3d, at 1015. The court emphasized that Mr. Kennedy
remained on duty after games.
Id., at 1016. Before us, the
District presses the same arguments. 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 everything
teachers and coaches say in the workplace as government 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 private moment after the game to call
home, check a text, socialize, or engage in any manner of secular
activities. Others 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 matter.
So far, we have recognized only that Mr. Kennedy has carried his
threshold burden. Under the
Pickering–
Garcetti
framework, a second step remains where the government may seek to
prove that its interests as employer outweigh even an employee’s
private speech on a matter of public concern. 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 narrowly 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
District, however, asks us to apply to Mr. Kennedy’s claims the
more lenient second-step
Pickering–
Garcetti test, or
alternatively 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
Establishment Clause.
Id., at 35–42. On its account, Mr.
Kennedy’s prayers might have been protected by the Free Exercise
and Free Speech Clauses. But his rights were in “direct tension”
with the competing demands of the Establishment Clause. App. 43. To
resolve that clash, the District reasoned, Mr. Kennedy’s rights had
to “yield.”
Ibid. The Ninth Circuit pursued this same line
of thinking, insisting that the District’s interest in avoiding an
Establishment 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 others often refer to the “Establishment Clause,” the
“Free Exercise Clause,” and the “Free Speech Clause” as separate
units. But the three Clauses appear in the same sentence of the
same Amendment: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech.” 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 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 activity 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 expression was private
speech protected by the Free Speech Clause. It did not matter that
the District never actually endorsed Mr. Kennedy’s prayer, no one
complained that it had, and a strong public reaction only followed
after the District sought to ban Mr. Kennedy’s prayer. Because a
reasonable observer could (mistakenly) infer that by allowing the
prayer the District endorsed Mr. Kennedy’s message, the District
felt it had to act, even if that meant suppressing otherwise
protected First Amendment activities. In this way, the District
effectively created its own “vise between the Establishment Clause
on one side and the Free Speech and Free Exercise Clauses on the
other,” placed itself in the middle, and then chose its preferred
way out of its self-imposed trap. See
Pinette, 515
U. S., at 768 (plurality 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 attempted a “grand unified theory” for assessing
Establishment Clause claims.
American Legion v.
American
Humanist Assn., 588 U. S. ___, ___ (2019) (plurality
opinion) (slip 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
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 (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, however, is that the “shortcomings” associated with
this “ambitiou[s],” abstract, and ahistorical approach to the
Establishment Clause became so “apparent” that this Court long ago
abandoned
Lemon and its endorsement test offshoot.
American 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 “minefield” 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 include anything
like a “modified heckler’s veto, in which . . . religious
activity can be proscribed” based on “ ‘perceptions’ ” or
“ ‘discomfort.’ ”
Good News Club v.
Milford
Central School,
533 U.S.
98, 119 (2001) (emphasis deleted). An Establishment Clause
violation does not automatically follow 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 infer endorses or “partakes of
the religious.”
Van Orden v.
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 interpreted by “ ‘reference to historical practices and
understandings.’ ”
Town of Greece, 572 U. S., at
576; see also
American Legion, 588 U. S., at ___
(plurality opinion) (slip op., at 25). “ ‘[T]he line’ ”
that courts and governments “must draw between the permissible and
the impermissible” has to “ ‘accor[d ] with history and
faithfully reflec[t ] the understanding of the Founding
Fathers.’ ”
Town of Greece, 572 U. S., at 577
(quoting
School Dist. of Abington Township 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 Establishment 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 establishments);
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) (analyzing 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 below rests on a mistaken understanding of the
Establishment Clause, the District offers a backup argument in this
Court. It still contends that its Establishment Clause concerns
trump Mr. Kennedy’s free exercise and free speech rights. But the
District now seeks to supply different reasoning for that result.
Now, it says, it was justified in suppressing Mr. Kennedy’s
religious activity because otherwise it would have been guilty of
coercing students to pray. See Brief for Respondent 34–37. And, the
District says, coercing worship amounts to an Establishment Clause
violation on anyone’s account of the Clause’s original meaning.
As it turns out, however, there is a pretty
obvious reason why the Ninth Circuit did not adopt this theory in
proceedings below: The evidence cannot sustain it. To be sure, this
Court has long held that government may not, consistent with a
historically sensitive understanding of the Establishment Clause,
“make a religious observance compulsory.”
Zorach v.
Clauson,
343 U.S.
306, 314 (1952). Government “may not coerce anyone to attend
church,”
ibid., nor may it force citizens to engage in “a
formal religious exercise,”
Lee v.
Weisman,
505
U.S. 577, 589 (1992). No doubt, too, coercion along these lines
was among the foremost hallmarks of religious establishments the
framers sought to prohibit when they adopted the First
Amendment.[
5] Members of this
Court have sometimes disagreed on what exactly qualifies as
impermissible coercion in light of the original meaning of the
Establishment Clause. Compare
Lee, 505 U. S., at 593,
with
id., at 640–641 (Scalia, J., dissenting). But in this
case Mr. Kennedy’s private religious exercise did not come close to
crossing any line one might imagine separating protected private
expression from impermissible government coercion.
Begin with the District’s own contemporaneous
description of the facts. In its correspondence with Mr. Kennedy,
the District never raised coercion concerns. To the contrary, the
District conceded in a public 2015 document that there was “no
evidence that students [were] directly coerced to pray with
Kennedy.” 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
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 acknowledged.
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 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 (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 everybody”
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 pluralistic society,” a
trait of character essential to “a tolerant citizenry.”
Lee,
505 U. S., at 590. This Court has long recognized as well that
“secondary school students are mature enough . . . to
understand that a school does not endorse,” let alone coerce them
to participate in, “speech that it merely permits on a
nondiscriminatory basis.”
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 . . . 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
students,” 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 destroy
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 participated on October 26. App. 97, 314–315;
see also Part I–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 government 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 familiar, it should. Really, it
is just another way of repackaging the District’s earlier
submission that government may script everything a teacher or coach
says in the workplace. See Part III–B,
supra. The only added
twist here is the District’s suggestion not only that it
may
prohibit teachers from engaging in any demonstrative religious
activity, but that it
must do so in order to conform to the
Constitution.
Such a rule would be a sure sign that our
Establishment Clause jurisprudence had gone off the rails. In the
name of protecting religious liberty, the District would have us
suppress it. Rather than respect the First Amendment’s double
protection for religious expression, it would have us preference
secular activity. Not only could schools fire teachers for praying
quietly over their lunch, for wearing a yarmulke to school, or for
offering a midday prayer during a break before practice. Under the
District’s rule, a school would be
required to do so. It is
a rule that would defy this Court’s traditional understanding that
permitting private speech is not the same thing as coercing others
to participate in it. 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 expressive activities has always been “part of learning how
to live in a pluralistic society.”
Lee, 505 U. S., at
590. We are aware of no historically sound understanding of the
Establishment Clause that begins to “mak[e] it necessary for
government to be hostile to religion” in this way.
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 persuade or force students to
participate, and there is no formal school program accommodating
the religious activity at issue.
Meanwhile, this case looks very different from
those in which this Court has found prayer involving public school
students to be problematically coercive. In
Lee, this Court
held that school officials violated the Establishment Clause by
“including [a] clerical membe[r]” who publicly recited prayers “as
part of [an] official school graduation ceremony” because the
school had “in every practical sense compelled attendance and
participation in” a “religious exercise.” 505 U. S., at 580,
598. In
Santa Fe Independent School Dist. v.
Doe, the
Court held that a school district violated the Establishment Clause
by broadcasting a prayer “over the public address system” before
each football game.
530 U.S.
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 generate conflict between an individual’s rights under the
Free Exercise and Free Speech Clauses and its own Establishment
Clause duties—and then develop some explanation why one of these
Clauses in the First Amendment should “ ‘trum[p]’ ” the
other two. 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 over another. It
cannot even show that they are at odds. In truth, there is no
conflict between the constitutional commands before us. There is
only the “mere shadow” of a conflict, a false choice premised on a
misconstruction of the Establishment Clause.
Schempp, 374
U. S., at 308 (Goldberg, J., concurring). And in no world may
a government entity’s concerns about phantom constitutional
violations justify actual 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 engaging in a
brief, quiet, personal religious observance doubly protected by the
Free Exercise and Free Speech Clauses of the First Amendment. And
the only meaningful justification the government offered for its
reprisal rested on a mistaken view that it had a duty to ferret out
and suppress religious observances even as it allows comparable
secular speech. The Constitution neither mandates nor tolerates
that kind of discrimination. Mr. Kennedy is entitled to summary
judgment on his First Amendment claims. The judgment of the Court
of Appeals is
Reversed.
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