Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District

No. 21-418

In the Supreme Court of the United States

JOSEPH A. KENNEDY, Petitioner,

v.

BREMERTON SCHOOL DISTRICT, Respondent.

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________

BRIEF OF GALEN BLACK AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

__________

Steven T. Collis

Counsel of Record

Law & Religion Clinic

University of Texas

School of Law

727 E. Dean Keeton St.

Austin, TX 78705

512-475-9090

Steven.collis@law.utexas.

edu

QUESTIONS PRESENTED

1. Whether a public-school employee who says a

brief, quiet prayer by himself while at school and

visible to students is engaged in government speech

that lacks any First Amendment protection.

2. Whether, assuming that such religious

expression is private and protected by the Free

Speech and Free Exercise Clauses, the Establishment

Clause nevertheless compels public schools to

prohibit it.

i

TABLE OF CONTENTS

Table of Authorities ................................................... iv

Interest of Amicus ....................................................... 1

Summary of Argument ............................................... 3

Argument ..................................................................... 8

I. The Court Needs to Provide Guidance for

Public Employees, Their Employers, and

Lower Courts Regarding the Establishment

Clause................................................................ 8

A. This Court’s Case Law Regarding the

Establishment Clause in Public Schools

Has Sent Mixed Signals Regarding When a

Public Employee’s Religious Exercise

Causes a Public Employer to Violate the

Establishment Clause... ............................ 10

B. The Ninth Circuit’s and School District’s

Reasoning Confirms Lower Courts and

Public Employers Need More Guidance. . 14

II. The Endorsement Test for Public Employees

Engaged in Private Religious Exercise Is Not

Workable. ........................................................ 17

A. The Endorsement Test Leads to Absurd

Results in the Public Employee Religious

Exercise Context... .................................... 17

B. The Endorsement Test for Public Employee

Religious Exercise Leads to Conflicting and

Confusing Results .................................... 20

III. A Modified Coercion Test for Public Employee

Religious Exercise Is a Reasonable Method for

Enforcing the Establishment Clause.. ........ 21

ii

A. The Coercion Test Is Most Effective for

Determining the Limits of Public Employee

Private Religious Exercise. ...................... 21

B. The Coercion Test Must Be Modified to Be

Manageable... ............................................ 22

Conclusion ................................................................. 24

iii

TABLE OF AUTHORITIES

Cases

Board of Ed. of Westside Community

Schools (Dist.66) v. Mergens,

496 U.S. 226 (1990) .............................................. 13

County of Allegheny v. ACLU,

492 U.S. 573 (1989) .............................................. 17

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 12

Employment Div., Dep’t of Human Res. v. Smith,

485 U.S. 660 (1988) ............................................. 1-2

Employment Div., Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) ............................................. 1-2

Engel v. Vitale, 370 U.S. 421 (1962) ......................... 10

Everson v. Board of Education,

330 U.S. 1 (1947) .................................................. 16

Garcetti v. Ceballos, 494 U.S. 872 (1990) ................... 8

Lee v. Weisman, 505 U.S. 577 (1992) ............ 12, 22-23

Lemon v. Kurtzman, 403 U.S. 602 (1971) ........... 11-12

Lynch v. Donnelly, 465 U.S. 668, 690 (1984) .......... 13

National Council of Canadian Muslims

(NCCM) c. Attorney General of Québec,

2018 QCCS 2766 (Can.) ....................................... 18

Sch. Dist. Of Abington Twp. v. Schempp,

374 U.S. 203 (1963) .............................................. 11

Stone v. Graham, 449 U.S. 39 (1980) ....................... 12

Santa Fe Ind. Sch. Dist. v. Doe,

530 U.S. 290 (2000) .............................. 9, 13, 15, 22

iv

Town of Greece v. Galloway,

572 U.S. 565 (2014) .............................................. 23

Wallace v. Jaffree, 472 U.S. 38 (1985) ...................... 12

Statutes

An Act Respecting the Laicity of the State, S.Q.

2019, c 12, (Can.).................................................. 19

An Act to foster adherence to State religious

neutrality and, in particular, to provide a

framework for requests for accommodations

on religious grounds in certain bodies,

SQ 2017, c 19 (Can.) ............................................ 18

Charter of Human Rights and Freedoms,

R.S.Q., c C-12 (Can) ............................................. 18

Or. Rev. Stat. § 475.752(4) (2020). ............................. 2

Constitutions

U.S. Const., amend. I,

Establishment Clause ................................. passim

v

INTEREST OF AMICUS

Galen Black was a co-plaintiff in Employment

Division v. Smith, 494 U.S. 872 (1990) (“Smith II”).

He is also a devout believer in the Native American

Church. Black credits his religious faith for his

longstanding sobriety and personal convictions.

Black has a strong interest in ensuring that

government employees understand their free exercise

rights under the First Amendment. Nearly forty years

ago, Black was fired and denied unemployment

benefits because of confusion surrounding the

constitutional limits on the free exercise of religion.

Coach Kennedy’s dismissal by Bremerton School

District demonstrates that this confusion persists

today. Black believes that government employees like

Coach Kennedy deserve the guidance of a clear rule

delineating the bounds of their free exercise rights

within the limits of the Establishment Clause.

After his time in the Navy, Black battled alcohol

dependency. He spent several years teetering

between dependence and sobriety. Black has now

been sober for nearly forty years. He credits his

sustained sobriety to his religious practice in the

Native American Church. Black found spiritual

healing through the religious ingestion of peyote,

which is central to Native American Church

rituals. Emp. Div. v. Smith, 485 U.S. 660, 661-62, 67

(1988) (“Smith I”). In the Church, peyote is

considered a deity. It “constitutes in itself an object of

worship; prayers are directed to it much as prayers

are devoted to the Holy Ghost.” Id. at 667 n. 11.

However, the ingestion of peyote—even for religious

reasons—was illegal under Oregon law at the

time. Id. at 662.

1

After achieving sobriety, Black became a

counselor at the Douglas County Council on Alcohol

and Drug Abuse Prevention and Treatment

(“ADAPT”). Id. at 662. ADAPT had partnered with

the State of Oregon as part of an initiative to provide

substance abuse rehabilitation and treatment

programs tailored to Native Americans. Through his

work at ADAPT, Black became acquainted with

Alfred Smith, who was also a counselor there. In 1984,

Black and Smith were fired as counselors at ADAPT

because of their religiously motivated ingestion of

peyote. The State of Oregon, noting that they had

committed an offense under state law, denied them

unemployment benefits. Id. at 663-64. Black and

Smith challenged this decision under the Free

Exercise Clause of the First Amendment to the U.S.

Constitution. Id. This Court denied their claim,

holding that Oregon’s prohibition on peyote use was

neutral and generally applicable and therefore did not

violate the Free Exercise Clause. Smith II, 494 U.S.

at 878-89.

Oregon subsequently enacted an amendment to its

laws and created a religious accommodation for the

ingestion of peyote. Or. Rev. Stat. § 475.752(4) (2020).

Oregon’s decision to accommodate Black’s religious

practice has helped him to maintain his sobriety and

live out his faith in compliance with the law.

Because he too was fired for practicing his religion,

Black has a strong interest in ensuring that

government employees know their religious rights

under the First Amendment. He believes that

government employees like Coach Kennedy deserve

the guidance of as clear a rule as possible regarding

2

the Establishment Clause so they may follow their

religious convictions within the limits of the law.1

SUMMARY OF ARGUMENT

I. Over thirty years ago, Galen Black lost his job

because employee free exercise rights were ill-defined

and poorly understood. Three decades later, there is

still too much confusion. For public employees seeking

to live their religion, much of the confusion stems

from the Court’s Establishment Clause cases, which

have left lower courts, public employers, and public

employees confused.

This case offers the Court an opportunity to

provide clarity to the chaos and set forth a

straightforward rule: a public employee’s private

exercise of religion results in an Establishment

Clause violation only if there is evidence of coercive

pressure for others to participate.

The Court needs to provide guidance so public

employers and employees can better understand their

obligations and rights under the Establishment

Clause.

A. From Engel to Santa Fe, the Court has provided

at least three different tests for determining if

government has violated the Establishment Clause:

the coercion test, the endorsement test, and the

Lemon test, which itself provides three ways

government can violate the Establishment Clause.

The three tests and the Court’s failure to indicate

precisely which test applies when has left public

1 This brief was prepared and funded entirely by amicus and his

counsel. No other person contributed financially or otherwise.

All parties have consented in writing to this brief.

3

employers, their employees, and the lower courts

confused, particularly in the context of public

employees privately exercising their religion.

B. The confusion was evident in both the school

district’s policy and the Ninth Circuit’s opinion in this

case. The school district adopted, and the Ninth

Circuit approved, a rule that would prohibit public

employee private religious exercise any time it is

demonstrative and viewable by students or others.

The school district adopted that standard out of fear

that such religious exercise might be perceived as the

school district’s endorsement of the religious exercise.

But no objective observer could have mistaken

Kennedy’s prayers as having been endorsed by the

school district, particularly because the district

explicitly distanced itself from them.

The Ninth Circuit worried greatly about the

attention Kennedy’s prayers drew, but the vast

majority of that attention came only because of the

government’s interference with Kennedy’s religious

exercise in the first instance. Government may not

draw attention to someone’s religious exercise, then

condemn that very exercise because it is drawing too

much attention.

The Ninth Circuit’s rule means that many forms

of private religious exercise by public employees

violate the Establishment Clause. It will have the

effect of excluding from public service anyone whose

religion requires an outward expression of their inner

faith. The resulting environment will be one in which

the only adults students observe are those whose

religion requires no outward display, who purport to

have no religion, or who keep their religion quiet.

4

That fails to meet this Court’s goal, stated long ago in

Everson v. Board of Education, of achieving

government neutrality between religion and

nonreligion.

II. The endorsement test in the context of private

religious exercise by public employees leads to absurd

outcomes and confusing and conflicting results.

A. The Court need not consider the worries about

the Ninth Circuit’s test as a mere hypothetical parade

of horribles. It can look to the Canadian province of

Quebec to see the absurd results that spring from a

concern about public employees endorsing religion

through private religious exercise. Quebec lawmakers

were so worried about endorsement that they banned

from many government positions anyone who wears

religious garb as part of their religious exercise. Those

who wear yarmulkas, crosses, hijabs, kufis, visible

undergarments, jewelry, turbans, or any other form of

religious symbolism are banned from almost any

government job of any significance in Quebec. That

type of discrimination against members of many of

the world’s major religions is absurd and should fail

completely under the Court’s precedent.

B. The endorsement test in the context of public

employee religious exercise leads to confusing results.

The Ninth Circuit panel tried to distinguish between

a coach kneeling in prayer after a football game and a

teacher praying over her lunch in front of students,

but the panel merely stated those two scenarios were

different. It provided no explanation as to why. Both

involve a demonstrative religious act. Both can be

seen by students. Both are by government employees

in the middle of their workdays. The endorsement test

does not distinguish between them.

5

The endorsement test in this scenario will result

in far more litigation and challenges than are

necessary, making easy cases hard and expanding the

amount of work courts must do to deal with them.

III. A modified coercion test is appropriate when

evaluating whether a public employee’s private

religious exercise violates the Establishment Clause.

A. This case is an opportunity for the Court to

provide some much-needed clarity regarding which

antiestablishment test applies when. As numerous

cases make clear, there certainly are situations where

the endorsement test must govern, and the Court may

want to keep the Lemon test, or at least some of its

parts. It need not address those issues in this case.

What it can do is clarify that a modified coercion test

makes the most sense in the context of public

employees privately exercising their religion.

The coercion test in this limited context is

consistent with the Court’s decisions in Lee v.

Weisman and Santa Fe.

B. The coercion test faces many of the same

criticisms as the endorsement test; namely, that

anyone can argue they have been coerced, whether

they have been or not. To be effective, the test

requires some evidence of coercive pressure. This

could include pushing religion on a captive audience,

disparate treatment towards those who do not react

positively towards the religious exercise, or even

proselytizing in some instances.

There will certainly be hard cases, as there are

with any legal rule, but a modified coercion test will

reduce their number and will ensure that individuals

6

whose religions require an outward expression of an

inner faith are not cast out from public employment.

7

ARGUMENT

I. The Court Needs to Provide Guidance for

Public Employees, Their Employers, and

Lower Courts Regarding the Establishment

Clause.

A little over thirty years ago, Mr. Black was

involved in one of the seminal cases touching on

employee religious free exercise rights. He was the

other, lesser-known plaintiff in Smith II, 494 U.S. 872

(1990). One of his chief concerns at the time was that

employees often did not understand what protections

their religious exercise enjoyed.

Three decades later, that is still the case. “The

Court has made clear that public employees do not

surrender all their First Amendment rights by reason

of their employment.” Garcetti v. Ceballos, 547 U.S.

410, 417 (2006). From there, however, this Court’s

cases regarding public employer Establishment

Clause obligations and public employee free exercise

rights have left many employers confused and too

many employees fearful. There are numerous reasons

for that, but this case provides the Court an

opportunity to offer important clarity in at least one

area of the law: what constitutes a violation of the

Establishment Clause when public employees

privately exercise their religion.

That question is relevant for a number of reasons.

The case arose only because the school district

believed Kennedy’s prayers had caused it to violate

the Establishment Clause. Likewise, the Ninth

Circuit reached its conclusion even after assuming

Kennedy was engaged in private speech and after

recognizing the school district had burdened his

8

religious exercise with a non-neutral policy.

App.17,23. In other words, the Ninth Circuit

concluded that the endorsement test applies to

Kennedy even when he exercises his religion as a

private citizen. What it has left us is a confusing

ruling that will lead to absurd and troubling results if

left uncorrected.

Given the confusion and internal inconsistency in

Establishment Clause case law, the Ninth Circuit’s

muddled ruling is not surprising. Similar problems

will continue to arise unless the Court provides some

guidance to lower courts, public employers, and public

employees.

This Court has offered several opinions that

provide some direction but none directly on point. The

latest was decided over two decades ago, with no

additional guidance despite a growing split in the

circuits and evident confusion among both public

employers and employees. See Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290 (2000). Lower courts and

public employers have misunderstood this Court’s

decisions, and in this case, the Ninth Circuit

misapplied them entirely.

This brief will place this case in the broader

context of the Establishment Clause doctrine that has

emerged from Santa Fe and Lee v. Weisman and the

earlier precedents they applied. It argues that a

public employee’s private exercise of religion results

in an Establishment Clause violation only if there is

evidence of coercive pressure for others to participate.

9

A. This Court’s Case Law Regarding the

Establishment Clause in Public Schools

Has Sent Mixed Signals Regarding When

a Public Employee’s Religious Exercise

Causes a Public Employer to Violate the

Establishment Clause.

1. The Early Cases. Nearly sixty years ago, the

Court held in Engel v. Vitale that a board of education

violated the Establishment Clause by mandating that

school employees lead students in prayers to

“Almighty God” at the beginning of every school day.

370 U.S. 421. The prayers asked students and

teachers to “acknowledge” their “dependence upon”

God and to “beg” God’s “blessings upon” teachers,

parents, students, and the country. Id. at 422. The

law required teachers to say the prayer in front of

captive students; it encouraged students to say the

prayer. Id. at 430.

The Court reached its conclusion by focusing on

coercion. Id. It argued, “When the power, prestige and

financial support of government is placed behind a

particular religious belief, the indirect coercive

pressure upon religious minorities to conform to the

prevailing officially approved religion is plain.” Id. at

431. Coercion was the Court’s primary worry in that

case, but it emphasized coercion was not the only way

in which government might violate the Establishment

Clause. The majority noted government can violate

the Clause even absent a “showing of direct

governmental compulsion” or laws that “operate

directly to coerce nonobserving individuals.” Id. at

430-31. It also suggested, albeit vaguely, other

potential tests. Id. at 424, 429.

10

A year later, in Abington School District v.

Schempp, the Court invalidated a Pennsylvania law

that required school teachers or other public

employees to read at “least ten verses from the Holy

Bible . . . without comment, at the opening of each

public school on each school day.” 374 U.S. 203, 205

(1963). In doing so, the majority quoted the same

language regarding coercion from Engel, suggesting it

was applying the coercion test as its standard for

identifying an Establishment Clause violation. Id. at

221.

Then, in the same opinion, the Court seemed to

adopt a different standard: for a law to “withstand the

strictures of the Establishment Clause there must be

a secular legislative purpose and a primary effect that

neither advances nor inhibits religion.” Id. at 222.

If that was not confusing enough, Schempp was

not done. The majority continued and concluded that

the “distinction between” the Free Exercise Clause

and the Establishment Clause “is apparent—a

violation of the Free Exercise Clause is predicated on

coercion while the Establishment Clause violation

need not be so attended.” Id. at 223.

We can forgive public employers and lower courts

for being confused. In Schempp alone, the Court

suggested at least four distinct tests for finding an

Establishment Clause violation.

2. The Lemon Test. Eight years later, the Court

decided Lemon v. Kurtzman, which provided the oftmaligned three tests for determining if an

Establishment Clause violation has occurred. 403

U.S. 602 (1971). Lemon did most of its work in the

school funding cases, which are mostly irrelevant in

11

the public employee religious exercise context. But

closer to home, the Court applied the Lemon test to

strike down the posting of the Ten Commandments on

school room walls. Stone v. Graham, 449 U.S. 39, 43

(1980). It applied it again in striking down quiet time

in schools explicitly designed “for meditation or

voluntary prayer.” Wallace v. Jaffree, 472 U.S. 38, 40

(1985). The Court has never applied it in cases that

apply directly to public employees engaged in private

religious exercise.2

3. The Rise of Coercion-Endorsement

Confusion. Without overruling Lemon, the Court

focused on coercion in Lee v. Weisman, 505 U.S. 577

(1992), which raised Establishment Clause concerns

over Rhode Island permitting principals to invite

members of the clergy to give invocations and

benedictions at middle and high school graduation

ceremonies. Id. at 581-83. The Court struck down the

program, reasoning: “[T]he State has in every

practical

sense

compelled

attendance

and

participation in an explicit religious exercise at an

event of singular importance to every student, one the

objecting student had no real alternative to avoid.” Id.

at 598.

After Lee v. Weisman, it appeared that public

employers needed to apply the coercion test when

determining if they were at risk of violating the

Establishment Clause, although the Lemon test was

2 The Court did apply Lemon in Edwards v. Aguillard to strike

down a statute requiring equal treatment of evolution and

“creation science.” 482 U.S. 578 (1987), but that did not deal

with public employee religious exercise. Other cases involved

matters outside the public employee context.

12

still an option and the concept of endorsement was

still very much alive and working in the background.

Eight years later, the Court invalidated a Texas

high school’s policy of commissioning student prayers

at the school’s football games. Santa Fe Ind. Sch. Dist.

v. Doe, 530 U.S. 290 (2000). In that case, the Court

suggested it would apply a coercion test to determine

if the school district had violated the Establishment

Clause: “[O]ur analysis is properly guided by the

principles that we endorsed in Lee [v. Weisman.]” Id.

at 302. And the Court did apply the coercion test,

using it to invalidate the school’s program. Id. at 316.

Along the way, however, it invoked language from

Justice O’Connor’s plurality opinion in a different

case in which she reiterated her view that an

Establishment Clause violation can occur if

government endorses religion. Id. at 302 (citing Bd. of

Ed. of Westside Comty. Schools (Dist.66) v. Mergens,

496 U.S. 226, 250 (1990) (opinion of O’Connor, J.).3

Indeed, the Court spoke in terms of both endorsement

and coercion throughout the opinion, suggesting the

schools had violated both. 530 U.S. at 302, 305, 3078, 310-12, 316-17.

The problem with all of this history is that the

Court has never been clear about which test applies

to what situation. What we learn is that there appear

to be three tests by which a public employer may

violate the Establishment Clause: endorsement,

coercion, and one of the Lemon prongs. The Court has

kept Lemon but has never applied it in situations

involving public employee private religious exercise.

Its other decisions seem to rely on coercion and

3 Justice O’Connor first elaborated on the endorsement test in

Lynch v. Donnelly, 465 U.S. 668, 690 (1984).

13

endorsement without clarity on which controls when.

All of this leaves public employers understandably

confused regarding what to do when their employees

engage in private religious exercise.

B. The Ninth Circuit’s and School District’s

Reasoning Confirms Lower Courts and

Public Employers Need More Guidance.

Armed with this Court’s precedent, the school

district, followed by the Ninth Circuit, attempted to

resolve Kennedy’s case. They ignored entirely both

coercion and Lemon and instead focused solely on

endorsement. The school district enforced a rule that

would allow Kennedy to engage in religious exercise

as long as it “would not be perceived as District

endorsement.” App.223. To enforce that rule, the

District informed Kennedy that while he was on duty

as a coach, he could “not engage in demonstrative

religious activity, readily observable to . . . students

and the attending public.” Id.

The Ninth Circuit upheld the policy, even after

assuming Kennedy was engaged in private religious

exercise and even after recognizing that the school

district was burdening his religious exercise with a

non-neutral policy. App.17-18. In doing so, it

mentioned the concept of coercion only one time, when

it acknowledged the coercive power schools enjoy. Id.

Otherwise, its focus was exclusively on whether

Kennedy’s religious exercise would be perceived as an

endorsement of religion by “an objective observer.”

App.18.

The Ninth Circuit’s focus on endorsement in the

context of an employee’s private religious exercise

only led to muddled reasoning and will lead to absurd

14

results. Concerns over endorsement should only

matter if an employee’s religious exercise is

attributed to the school. Unlike Santa Fe, this is not

a case where the school is choosing a delegate and

claiming the delegate is a private speaker. Nor is it a

case where speaker access is limited by viewpoint—

all employees of all religious traditions have equal

access. The Ninth Circuit assumed Kennedy was a

private actor and still used the endorsement test to

evaluate his religious exercise for an Establishment

Clause violation.

The Ninth Circuit emphasized that “[c]ontext

matters.” App.20. Yet its focus on endorsement led to

it ignoring important contextual facts. It concluded

that any objective observer would decide the school

district endorsed Kennedy’s prayers, but it ignored

the well-known fact that the school district had

publicly denounced and tried to stop the prayers from

happening. If context matters, anyone aware of the

history of Kennedy’s prayers would have known they

were his alone, not the school district’s.

The Ninth Circuit also relied heavily on the

attention Kennedy’s prayers drew, concluding the

attention alone was enough to violate antiendorsement principles. That attention came only

after the school district first scrutinized his prayers,

causing him to seek public support. In other words,

had the law been clearer, and had the school district

not believed that Kennedy’s prayers were an

Establishment Clause violation, the subsequent

attention would have been a nonissue. Government

may not draw attention to religious exercise, then use

that attention to justify burdening the religious

exercise.

15

The Ninth Circuit’s test also results in nearly

every type of private behavior under the sun being

acceptable except employee religious exercise.

Coaches could jump, sing, dance, cheer, hug, give

inspirational speeches, slap hands, fall on the ground

in joy, and even kneel. But the moment they offer a

prayer, even a silent one, as long as they are

observable

by

students,

they

violate

the

Establishment Clause. In all the chaos that follows a

football game, such a rule not only targets religion; it

is unmanageable.

Under the school district’s rule, as upheld by the

Ninth Circuit, public employees would be forbidden

from participating in many forms of religious exercise

any time students or the public might observe them.

This could include praying over meals; wearing

religious garb, such as turbans, yarmulkas, hijab,

crosses, jewelry, or sacred garments; offering a

religious greeting to a coworker; fasting during

Ramadan; offering a silent Buddhist chant; pointing

to heaven in gratitude after a score; and even eating

kosher or halal meals if the type of meal is obvious.

Ensuring government does not violate the

Establishment Clause is an important and worthy

goal. The Clause is a crucial component of protecting

religious freedom for all. In its first Establishment

Clause decision of the modern era, the Court stated

its rule in broad terms: the First Amendment

“requires the state to be a neutral in its relations with

groups of religious believers and nonbelievers.”

Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). Under

the Ninth Circuit’s reasoning, however, we see that

neutrality lost. Those who pray in any demonstrative

way, those who wear sacred garb, those whose

16

religion cannot be completely closeted away, those

whose inner religious commitments are a part of their

outward identity are all excluded from government

service by the Ninth Circuit’s rule. The attempt to

avoid endorsement creates an environment in which

children see only those adults who purport to have no

religion, whose religious identities are completely

private, or who succumb to pressure to keep their

identities closeted. That harms not only the public

employees but also the students, who will receive less

preparation to live in a religiously diverse world.

II. The Endorsement Test for Public Employees

Engaged in Private Religious Exercise Is Not

Workable.

What drove both the Ninth Circuit and the school

district in this case was nervousness over

endorsement.

The endorsement test should govern in some

circumstances. There are instances when Lemon, or

at least some of its concepts, should be used to ensure

government neutrality between religion and

nonreligion. The Court need not lay out here every

scenario where each test should apply. But it does

need to clarify that the endorsement test should not

apply when evaluating public employee private

religious exercise for an Establishment Clause

violation.

A. The Endorsement Test Leads to Absurd

Results in the Public Employee Religious

Exercise Context.

The biggest concern of applying the endorsement

test to the private religious exercise of public

employees is the potential for absurd results.

17

The endorsement test prohibits state action that has

the purpose or effect of endorsing religion. See County

of Allegheny v. ACLU, 492 U.S. 573, 592-93 (stating

this rule and equating the term “endorsement” with

“favoritism” and “promotion”). In the context of the

religious exercise of state employees, applying this

test is difficult, for nearly any outward religious act

by a public employee can be seen as the possible

endorsement of religion. The logical end of applying

the

endorsement

test

would

be

to

prohibit any displays of religion by state employees.

The Court need not consider this result in the

abstract. It can look to the Canadian province of

Quebec to see the absurd outcomes that stem from an

obsessive worry that public employees might appear

to be endorsing religion.

Similar to the concerns regarding establishment

in the United States, Quebec law considers the laicity

of the state to be a fundamental freedom of the

Quebec people. Charter of Human Rights and

Freedoms, R.S.Q., c C-12 (Can). In 2017, the Quebec

legislature became fearful

that allowing public

officials to express their religious beliefs would be

seen as an impermissible endorsement by the

government of religion. In an effort to “foster

adherence to State religious neutrality[,]” the

legislature enacted Bill 62, which prohibited the

wearing of any face coverings by public officials while

performing their duties. “An Act to foster adherence

to State religious neutrality and, in particular, to

provide a framework for requests for accommodations

on religious grounds in certain bodies,” SQ 2017, c 19

(Can.).

18

This

statute

was

highly

criticized

for

its discriminatory effect, and numerous courts in

Canada struck it down because it seemed to target

only Muslims. National Council of Canadian Muslims

(NCCM) c. Attorney General of Québec, 2018 QCCS

2766 (Can.). To work around those decisions, the

Quebec legislature enacted Bill 21, which prohibited

most

public

officials

from

wearing

any religious symbol at any time while performing

their job. An Act Respecting the Laicity of the State,

S.Q. 2019, c 12, s 6 (Can.). The Bill defines a religious

symbol as “any object . . . that (1) is worn in connection

with a religious conviction or belief; or (2) is

reasonably considered as referring to a religious

affiliation.” Id. This means that, for example, a public

official cannot wear a cross, turban, yarmulke, hijab,

or any head covering while on the job. As a result,

any practicing member

of

any religion

that

requires the wearing of religious garb or symbols

would be forbidden from seeking a career in most

governmental

positions.

Muslims,

Hindus,

Christians, Sikhs, Jews, any number of other

religious minorities—all are placed in the impossible

position of choosing their livelihoods or their

religions; in the name of anti-endorsement, they

cannot have both.

It seems the only people left unscathed by the law

are those whose religious beliefs require absolutely no

outward expression, those who purport to have no

religion at all, or those willing to abandon their

religious identities.

This absurd outcome is just one example of the

dangers of the endorsement test in the context of

private religious exercise by public employees. The

19

longer it percolates in the United States,

inadequately defined and misapplied, the more likely

similar outcomes will arise here.

B. The Endorsement Test for Public

Employee Religious Exercise Leads to

Conflicting and Confusing Results.

The endorsement test seems to rely on whether an

“objective observer” would believe a public employer

endorsed religion in the full context of the situation.

App.18. But determining who is an objective observer

is difficult. The Ninth Circuit seemed to create an

observer who views any religious act of an individual

as government action. It also created an observer who

ignores crucial facts—such as the school district’s

distancing itself from Kennedy’s prayers—to reach a

particular conclusion. A focus on endorsement will

consistently lead critics to question whether courts

have properly created an “objective observer” and

whether that observer has considered the entire

context of the case. See App.126-27.

Using the endorsement test, it is nearly impossible

to distinguish between religious exercise that is

clearly allowed and religious exercise that is not.

Consider the Ninth Circuit’s own example, in

response to concerns expressed by Justice Alito. 139

S.Ct. at 636 (Alito, J.). The panel argued that a

teacher praying over her lunch while students are in

the room is quite different than a coach praying on the

football field. They concluded the former “is of a

wholly different character” than the latter. App.15.

Tellingly, they offer no explanation as to why, in part

because the endorsement test allows for no such

distinction in this situation.

20

The endorsement test will also lead to far more

litigation and conflict than is necessary. It is too

enslaved to the eyes of the beholder. Any time anyone

is opposed to the religious observance of a government

employee, they can claim they feel government is

endorsing a particular religious viewpoint. This will

lead to investigations, which in turn will result in

chilling of religious exercise. Trying to cabin those

claims by asking how an “objective observer” might

view the situation may limit how successful some of

the claims are, but only after months and years of

needless litigation in which both public employees

and their employers are targets of the litigation.

III. A Modified Coercion Test for Public

Employee

Religious

Exercise

Is

a

Reasonable Method for Enforcing the

Establishment Clause.

A. The Coercion Test Is Most Effective for

Determining the Limits of Public

Employee Private Religious Exercise.

This case provides the Court an opportunity to set

the record straight. It has used a number of different

terms and tests to describe when an Establishment

Clause violation occurs. Now it can provide a clear

test in the context of public employees privately

exercising their religion. Whether Lemon survives or

the endorsement test continues to get applied in other

situations are questions the Court can leave to

another day or has already answered in its previous

cases.

In the context of cases involving public employees

privately exercising their religious beliefs, however,

the question lower courts and public employers

21

should be asking is whether the exercise of religion

coerces third parties into engaging in the religious

exercise. This is not a case of government endorsing

prayer at football games or graduations, nor of

teachers or administrators forcing diluted prayers or

scripture study on students. It is about an individual’s

private choice to comply with his religious obligations.

One of the key concerns of both Religion Clauses is

protecting religious volunteerism. An action by a

public employee that coerces others to avoid

practicing their own beliefs or to practice a belief they

do not hold would violate the Establishment Clause.

The coercion test in this limited context is

consistent with the Court’s decisions in Lee v.

Weisman and Santa Fe. It would leave intact the

Court’s concerns about endorsement in certain

situations, but it would also make sense of the Court’s

worries about coercion of students, teachers, and

audiences.

B. The “Coercion” Test Must Be Modified to

Be Manageable.

As with the endorsement test, there is a risk with

the coercion test that someone could bring a claim

simply because they feel coerced. This problem will

arise if the test relies too heavily on the subjective

views of the person alleging coercion. The risk is that

the test may cause the same chilling effect as the

endorsement test.

To succeed on any claim of coercion, then, a

plaintiff would need to provide some evidence of

“coercive pressure.” Weisman, 505 U.S. at 592. This

is consistent with the Court’s ruling in Santa Fe that

courts

must

examine

“the

circumstances

22

surrounding” any alleged Establishment Clause

violation. Santa Fe, 530 U.S. at 315. A plaintiff cannot

succeed merely by claiming that they felt compelled

to practice or not practice certain religious beliefs

without evidence of actual benefits or burdens

discriminatorily allocated based on the plaintiff’s

reaction to the religious exercise. See Town of Greece

v. Galloway, 572 U.S. 565, 589 (2014) (plurality

opinion).

This test is not about the psychological state of

those who may or may not be experiencing coercion,

which some have condemned. See Weisman, 505 U.S.

at 644 (Scalia, J. dissenting). It is about an objective

analysis of evidence of coercive pressure.

This evidence may come in many forms, such as a

showing that the public employee allocated benefits

and burdens based on who participated with him. In

this case, for example, if players could show that those

who joined in the prayers consistently received more

playing time over those who did not, they would have

a stronger claim.

A captive audience is another example of coercive

pressure. A person that is forced to attend and

witness an exercise of religion is compelled to

participate in that exercise even if they are not

explicitly asked to participate. Such an environment

creates public and peer pressure that “though subtle

and indirect, can be as real as any overt compulsion.”

Weisman, 505 U.S. at 593.

Another example of coercive pressure would be a

public employee proselytizing to students, or to adult

third parties even after they have said no.

23

This is not to suggest that a modified coercion test

will not face difficult cases. It will, as does any legal

rule. But a modified coercion test will reduce the

number of hard cases and absurd results. It will also

have the effect of helping students live in a religiously

diverse world while ensuring that individuals who

outwardly exercise their religion are not cast out from

public employment.

CONCLUSION

The Court should grant the petition for writ of

certiorari, reverse the judgment below, and adopt a

clearer standard for what constitutes an

Establishment Clause violation in the context of

public employees privately exercising their religion.

Respectfully submitted,

Steven T. Collis

Counsel of Record

Law & Religion Clinic

University of Texas

School of Law

727 E. Dean Keeton St.

Austin, TX 78705

512-475-9090

Steven.collis@law.utexas.

edu

October 18, 2021

24