Kennedy v. Bremerton School Dist.

(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

——————

1 A 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

——————

2 Because 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

——————

3 It 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,

——————

4 Nor 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

——————

5 See, 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

——————

6 The 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

——————

7 Even 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

——————

8 Failing 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).

——————

1 The 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

——————

2 The 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.,

——————

3 The 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 Speech 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)

——————

5 The 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

——————

6 The 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

——————

7 The 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-

——————

8 Puzzlingly, 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

——————

9 The 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.