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,

v.

Petitioner,

BREMERTON SCHOOL DISTRICT,

Respondent.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

__________________

BRIEF OF AMICUS CURIAE DARRELL GREEN

IN SUPPORT OF PETITIONER

__________________

WILLIAM WAGNER

Counsel of Record

ERIN ELIZABETH MERSINO

GREAT LAKES JUSTICE CENTER

5600 W. Mount Hope Hwy

Lansing, MI 48917

(517) 643-1765

Prof.WWJD@gmail.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

This case presents two questions: (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. This brief focuses on the second

issue.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv

STATEMENT OF IDENTITY AND INTEREST

OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE FIRST AMENDMENT PROTECTS MR.

KENNEDY’S PRAYER AND, UNDER A CORRECT

UNDERSTANDING OF THE ESTABLISHMENT

CLAUSE, DOES NOT PROVIDE JUSTIFICATION

FOR THE GOVERNMENT’S SUBSTANTIAL

INFRINGEMENT OF HIS CONSTITUTIONALLY

PROTECTED LIBERTY . . . . . . . . . . . . . . . . . . . . . 4

A. In Resolving this Case and Controversy, the

Court Should Apply the Plain Meaning of the

Words in the Establishment Clause . . . . . . . . 4

B. This Court Should Abandon the

Endorsement Jurisprudence used by the

Appellate Court in Interpreting the

Establishment Clause . . . . . . . . . . . . . . . . . . . 9

1) The Appellate Court Exceeded the Scope

of the Judicial Power . . . . . . . . . . . . . . . . 14

iii

2) The Appellate Court, Substituting

Endorsement as Establishment, Bypassed

Constitutionally Required Processes for

Amending the Constitution . . . . . . . . . . . 16

3) Lemon, and its Progeny Relied upon by

the Appellate Court, Undermines the

Legitimacy of the Judiciary . . . . . . . . . . . 17

4) This Court’s Establishment Clause

Jurisprudence Creates Substantial

Unpredictability in the Law . . . . . . . . . . 18

5) The Appellate Court’s Decision Fosters

Unjustifiable Hostility Toward Religious

Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv

TABLE OF AUTHORITIES

CASES

Am. Atheists, Inc v. Duncan,

616 F.3d 1145 (10th Cir. 2010). . . . . . . . . . . . . . 23

Am. Humanist Ass’n v. Maryland-Nat’l Cap.

Park & Plan. Comm’n,

874 F.3d 195 (4th Cir. 2017) . . . . . . . . . . . . . . . 23

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019). . . . . . . . . . . . . . . . . . . . . 23

Capitol Square Review and Advisory Bd. v. Pinette,

515 U.S. 753 (1995). . . . . . . . . . . . . . . . . 10, 11, 12

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . . . . . . . 5

Cnty. of Allegheny v. Am. Civil Liberties Union,

Greater Pittsburgh Chapter,

492 U.S. 573 (1989). . . . . . . . . . . . . 8, 9, 19, 24, 25

Edwards v. Aguillard,

482 U.S. 578 (1987). . . . . . . . . . . . . . . . . . . . 21, 23

Engel v. Vitale,

370 U.S. 421 (1962). . . . . . . . . . . . . . . . . . . . . . . . 7

Epperson v. Arkansas,

393 U.S. 97 (1968). . . . . . . . . . . . . . . . . . . . . 22, 23

Gibbons v. Ogden,

9 U.S. 194 (1824). . . . . . . . . . . . . . . . . . . . . . . . . 15

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . . 5

v

Greece v. Galloway,

572 U.S. 565 (2014). . . . . . . . . . . . . . . . . . . . . . . . 6

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . 6, 7, 8, 9, 10

Lemon v. Kurtzman,

403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . passim

Lynch v. Donnelly,

465 U.S. 668 (1984). . . . . . . . . . . . . . . . 6, 7, 11, 19

Marbury v. Madison,

5 U.S. 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . 15

Marsh v. Chambers,

463 U.S. 783 (1983). . . . . . . . . . . . . . . . . . . . 6, 7, 8

McCreary Cnty. v. ACLU,

545 U.S. 844 (2005). . . . . . . . . . . . . . . . . . . . 19, 23

McCulloch v. Maryland,

17 U.S. 316 (1819). . . . . . . . . . . . . . . . . . . . . . . . 15

Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012). . . . . . . . . . . . . . . . . . . . . 15

Obergefell v. Hodges,

135 S. Ct. 2071 (2015). . . . . . . . . . . . . . . . . . . . . 25

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

530 U.S. 290 (2000). . . . . . . . . . . 10, 12, 19, 20, 23

Van Orden v. Perry,

545 U.S. 677 (2005). . . . . . . . . . . . . . . . . . . . . . . 19

Wallace v. Jaffree,

472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . passim

vi

CONSTITUTION AND STATUTES

U.S. Const. art. I, § 8, cls. 5, 7, 12 . . . . . . . . . . . . . . 15

U.S. Const. art. III . . . . . . . . . . . . . . . . . . 3, 14, 15, 27

U.S. Const. art. V . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

Abraham Lincoln, Emancipation Proclamation,

(Jan. 1, 1863), https://catalog.archives.gov/id/

299998?q=Emancipation%20Proclamation#.

Vflu0VtrT7w.link . . . . . . . . . . . . . . . . . . . . . . . . 18

Associated Press, Georgia Seniors Told They Can’t

Pray Before Meals, (May 10, 2010; updated Jan.

6, 2015), https://www.foxnews.com/us/prayersanswered-seniors-can-pray-before-meals-atgeorgia-center . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Michael W. McConnell, Religion and its Relation to

Limited Government, 34 Harv. J.L. & Pub. Pol.

943 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

G. Moens, The Menace of Neutrality in Religion,

2004 BYU L. Rev. 535 (2004) . . . . . . . . . . . . . . . 21

Noah Webster, Am. Dictionary Of The English

Language (1828), at http://webstersdictionary

1828.com/Dictionary/respecting . . . . . . . . . . . . . . 7

Noah Webster, Am. Dictionary Of The English

Language (1828), at http://webstersdictionary

1828.com/Dictionary/establishment. . . . . . . . . . . 7

1

STATEMENT OF IDENTITY AND

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus

Curiae, Darrell Green, submits this brief supporting

Petitioner.1

Darrell Green is a member of the Pro Football Hall

of Fame. During his professional career in the National

Football League, he played in three Super Bowls and

set numerous NFL records. As a follower of Jesus, Mr.

Green now engages in a wide variety of public service

activities meeting the needs of children, their families

and the communities in which they live. In doing so,

Mr. Green’s faith is often part of, and evident in, his

motivational speeches and public expressions of

encouragement.

Amicus Curiae holds special knowledge helpful to

this Court about the importance of properly applying

the plain meaning of the Establishment Clause.

Amicus Curiae files this brief to encourage this

Honorable Court to return to a sound constitutional

basis for state-church relations and, in so doing, protect

all those who seek to encourage and inspire the next

generation of this great nation.

1

Petitioner and Respondents granted blanket consent for the filing

of Amicus Curiae briefs in this matter. Amicus Curiae further

states that no counsel for any party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity, other than the Great Lakes Justice Center, made

a monetary contribution to the preparation or submission of this

Amicus Curiae brief.

2

BACKGROUND

As a football coach, Mr. Kennedy’s job included

coaching, mentoring, and serving as a role model for

the student athletes. Pet.App.3; JA168. In this regard,

the foundation for Mr. Kennedy’s personal identity and

belief system was his Christian faith. Id. After each

game, these sincerely held religious beliefs led him to

kneel at midfield and “offer a brief, quiet prayer of

thanksgiving for player safety, sportsmanship, and

spirited competition.” Pet.App.3-4. Sometimes Mr.

Kennedy gave short motivational speeches through the

lens of his personal identity and belief system. Id. at 4.

Players and members of the community sometimes

voluntarily joined Mr. Kennedy at midfield. Id. at 4, 89. Even though nothing in the record shows that Mr.

Kennedy treated anyone on the team more or less

favorably if they participated or not, the government

objected, ordering that his inspirational talks “must

remain entirely secular in nature, so as to avoid

alienation of any team member.” Id. at 6. Condemning

Mr. Kennedy’s expression, as an improper endorsement

of religion, it punished him. The government’s actions

ultimately resulted in Mr. Kennedy no longer being

allowed to coach the football team. Id. at 10-11.

The government acknowledges that it substantially

interfered with Mr. Kennedy’s First Amendment

liberty. It seeks to justify its violation, however,

arguing that allowing Mr. Kennedy to express himself

through the lens of his belief system would violate the

Establishment Clause. Id. at 17, 23.

3

SUMMARY OF THE ARGUMENT

The government’s contention that its substantial

interference with Mr. Kennedy’s First Amendment

liberty was justified cannot stand. Contending the

government had a compelling interest justifying its

infringement, the appellate court incorrectly

presupposed that not stopping Mr. Kennedy from

praying would violate the Establishment Clause. This

Court should apply the plain meaning of the words in

the Establishment Clause in its review of the

government action here. The Establishment Clause

simply prohibits federal laws “respecting an

establishment of religion.” U.S. Const. amend. I. Mr.

Kennedy praying does not establish a religion. It does

not subject the American citizenry to governance under

a theocracy. It does not coerce the American citizenry,

by force of law and penalty, to practice an official

religion. It does not, therefore, violate the plain

meaning of the Establishment Clause. The

government, therefore, lacked a compelling interest

justifying its substantial infringement of Mr. Kelly’s

First Amendment liberty.

Amicus Curiae additionally urge this Court to

overrule Lemon v. Kurtzman, 403 U.S. 602 (1971), and

its progeny relied upon by the appellate court, because

it unconstitutionally empowers unelected judges to

supplant our politically accountable system of

governance with their own protean preferences. This

Court’s judicially contrived secular purpose and

religious endorsement prohibition: 1) exceeds the scope

of judicial power stated in Article III of the

Constitution; 2) bypasses constitutionally required

4

processes for amending the Constitution;

3) undermines the legitimacy of the judiciary;

4) creates substantial unpredictability in the law; and

5) fosters unjustifiable hostility toward the religious

identity and dignity of innumerable U.S. citizens.

ARGUMENT

I. THE FIRST AMENDMENT PROTECTS MR.

KENNEDY’S PRAYER AND, UNDER A CORRECT

UNDERSTANDING OF THE ESTABLISHMENT

CLAUSE, DOES NOT PROVIDE JUSTIFICATION

FOR THE GOVERNMENT’S SUBSTANTIAL

INFRINGEMENT OF HIS CONSTITUTIONALLY

PROTECTED LIBERTY.

The First Amendment to the United States

Constitution states: “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof, or abridging the freedom of

speech . . . .” U.S. Const. amend. I.

A. In Resolving this Case and Controversy,

the Court Should Apply the Plain Meaning

of the Words in the Establishment Clause.

The Constitution is not just a set of guidelines. It is

the framework on which the government and our legal

system are constructed. Its words both create this

Court’s authority and give it definition. Those words

were written quite clearly, by highly qualified

draftsmen, to express a simple meaning. Faithful

adherence to those words is the touchstone for

measuring the fulfillment of this Court’s sacred duty.

Every Justice who takes the oath of office swears to

uphold the Constitution as it is written, not as he or

5

she would like it to be written. Discerning and applying

the meaning that the Drafters embodied in the

Constitution’s language is this Court’s high calling. The

alternative of making those words mean what

contemporary judges think they should now mean is

the first step on the path to tyranny.

In this case, the appellate court recognized that the

government substantially interfered with Mr.

Kennedy’s constitutionally protected First Amendment

liberties. The appellate court, therefore, properly

applied strict scrutiny to the government’s action.

Pet.App.17 (citing Good News Club v. Milford Cent.

Sch., 533 U.S. 98, 112 (2001)); Pet.App.23 (citing

Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520, 531-32 (1993)). In doing so, however, the

appellate court erroneously held that the government

had a compelling interest justifying its substantial

constitutional infringement. Pet. App - 17-25. To reach

this conclusion, the appellate court incorrectly

presupposed that not stopping Mr. Kennedy from

praying would violate the Establishment Clause. Id.

Reasoning from its incorrect presupposition, the

appellate court concluded that the government held a

compelling interest in avoiding such a violation. Id.

Resolution of the issue before this Court requires a

correct understanding of what the Establishment

Clause means. This Court has long sought to honor this

duty by understanding those meanings in their

historical context. In evaluating the appellate court’s

interpretation of the Establishment Clause, this Court

should ask whether the interpretation comports with

“what history reveals was the contemporaneous

6

understanding of its guarantees.” See Lynch v.

Donnelly, 465 U.S. 668, 673 (1984).

As Chief Justice Burger observed in Marsh v.

Chambers, “historical evidence sheds light not only on

what the draftsmen intended the Establishment Clause

to mean, but also on how they thought that Clause

applied....” 463 U.S. 783, 790 (1983). Reviewing the

history of the Clause and its application, the Marsh

Court held that a chaplain (employed by the

government) did not violate the Establishment Clause

by leading a legislature in prayer. Id. This Court in

Greece v. Galloway, 572 U.S. 565, 573 (2014),

thereafter noted that

Marsh stands for the proposition that it is not

necessary to define the precise boundary of the

Establishment Clause where history shows that

the specific practice is permitted. Any test the

Court adopts must acknowledge a practice that

was accepted by the Framers and has withstood

the critical scrutiny of time and political change.

County of Allegheny, supra, at 670 (opinion of

Kennedy, J.); see also School Dist. of Abington

Township v. Schempp, 374 U. S. 203, 294 (1963)

(Brennan, J., concurring) (“[T]he line we must

draw between the permissible and the

impermissible is one which accords with history

and faithfully reflects the understanding of the

Founding Fathers”).

Similarly, in Lee v. Weisman, Justice Scalia, joined by

three other justices, stated that in this search for truth,

“the meaning of the Clause is to be determined by

reference to historical practices and understandings.”

7

505 U.S. 577, 631 (1992) (Scalia, J., dissenting).

Various Justices, in numerous cases, have, in detail,

documented the history and tradition of public prayer

in the United States. See, e.g., Lee, 505 U.S. at 633-36;

Marsh, 463 U.S. at 786-88; Lynch, 465 U.S. at 674-78;

Engel v. Vitale, 370 U.S. 421, 446-50, n. 3 (1962)

(Stewart, J., dissenting); Wallace v. Jaffree, 472 U.S.

38, 100-03 (1985).

Moreover, Webster’s 1828 American Dictionary of

the English Language defined respecting as

“[r]egarding; having regard to; relating to,”2 and

establishment as “[t]he act of establishing, founding,

ratifying or ordaining.”3 Thus, historically, the plain

meaning of the Establishment Clause is that

government should not shackle the consciences of the

people, for whose sake it exists, through a state

religion. The experience of our Founders, which the

Establishment Clause reflects and seeks to save us

from, was aptly delineated by Justice Scalia, dissenting

in Weisman, 505 U.S. at 640-41 (internal citations

omitted):

The coercion that was a hallmark of historical

establishments of religion was coercion of

religious orthodoxy and of financial support by

force of law and threat of penalty. Typically,

2

Noah Webster, Am. Dictionary Of The English Language (1828),

at http://webstersdictionary1828.com/Dictionary/respecting, (last

visited Feb. 24, 2022).

3

Noah Webster, Am. Dictionary Of The English Language (1828),

at http://webstersdictionary1828.com/Dictionary/establishment,

(last visited Feb. 24, 2022).

8

attendance at the state church was required;

only clergy of the official church could lawfully

perform sacraments; and dissenters, if tolerated,

faced an array of civil disabilities. Thus, for

example, in the colony of Virginia, where the

Church of England had been established,

ministers were required by law to conform to the

doctrine and rites of the Church of England; and

all persons were required to attend church and

observe the Sabbath, were tithed for the public

support of Anglican ministers, and were taxed

for the costs of building and repairing churches.

Government acknowledgment and accommodation

of religious expressions are considered time-honored

practices that are a part of our nation’s heritage. See

Marsh, 463 U.S. at 790 (upholding prayer in

legislature); Lee, 505 U.S. at 631 (Scalia, J. dissenting);

County of Allegheny v. American Civil Liberties Union,

Greater Pittsburgh Chapter, 492 U.S. 573, 657, 670

(1989) (Kennedy J., dissenting).

The Establishment Clause must be construed in

light of the ‘[g]overnment policies of

accommodation, acknowledgment, and support

for religion [that]are an accepted part of our

political and cultural heritage.’… the meaning of

the Clause is to be determined by reference to

historical practices and understandings.’ It is

said that ‘[a] test for implementing the

protections of the Establishment Clause that, if

applied with consistency, would invalidate

longstanding traditions cannot be a proper

reading of the Clause.’

9

Lee, 505 U.S. at 631 (Scalia, J. dissenting) (quoting

County of Allegheny, 429 U.S. at 657, 670).

Properly understood, the “separation of church and

state is not a limitation on churches or religion; it is a

limit on the role of government with respect to

churches and religious life in general.” Michael W.

McConnell, Religion and its Relation to Limited

Government, 34 Harv. J.L. & Pub. Pol. 943, 944 (2010).

Mr. Kennedy praying does not violate the

Establishment Clause because it was not an action

regarding or relating to the act of establishing or

founding of a religion or state church. The praying

coach does not subject the American citizenry to

governance under a theocracy. Nor does it coerce the

American citizenry, by force of law and penalty, to

practice one official religion to the exclusion of all

others. Mr. Kennedy’s praying does not, therefore,

violate the Establishment Clause.

B. This Court Should Abandon the

Endorsement Jurisprudence used by the

Appellate Court in Interpreting the

Establishment Clause.

The government demanded that Mr. Kennedy’s

post-game expression “must remain entirely secular in

nature” Pet.App.6. The appellate court held, inter alia,

that the government’s not stopping Mr. Kennedy from

praying would violate the Establishment Clause,

because not stopping it endorsed religion. Pet.App.1-2,

17-23. To understand the gravity of the government’s

and appellate court’s error, it is necessary to

understand its ancestorial jurisprudence. Indeed, the

10

appellate court’s error is understandable given that

this Court’s “religion clause jurisprudence has become

bedeviled (so to speak) by reliance on formulaic

abstractions that are not derived from, but positively

conflict with, our long accepted constitutional

traditions. Foremost among these has been the socalled Lemon test.” Lee, 505 U.S. at 644 (Scalia, J.,

dissenting). The test often ignored but not yet

overruled by this Court, regularly continues to receive

“well-earned criticism.” Id.

In Lemon, and its progeny relied upon by the

appellate court, this Court replaced the rule prescribed

by the Constitution – whether government action

“established” a religion – with a test of its own creation,

whether government action had a secular purpose or

“endorsed” religion. Lemon, 403 U.S. at 612-13 (1971);

see also Pet.App.17-23 citing Santa Fe Indep. Sch.

Dist., 530 U.S. at 308 and quoting Wallace, 472 U.S. at

73, 76 (O’Connor, J., concurring in judgment)); Capitol

Square Review and Advisory Bd. v. Pinette, 515 U.S.

753, 777 (1995) (O’Connor, J., concurring).

In Lemon, the Court contrived a three-part test, and

then mandated that government action must satisfy all

three elements to comport with the Establishment

Clause:

First, the [government action] must have a

secular [ ] purpose; second, its principal or

primary effect must be one that neither

advances nor inhibits religion; finally, the

11

[government action] must not foster an excessive

government entanglement with religion.

Lemon, 403 U.S. at 612-13 (internal citations omitted).

A few justices addressed the second prong of the

Lemon test by requiring the government action to not

even symbolically endorse religion. No agreement

existed though, even among those justices, on how to

decide when a government action symbolically

endorsed religion. For example, Justice O’Connor,

concurring in Wallace v. Jaffree stated:

[W]hether a government activity communicates

endorsement of religion is not a question of

simple historical fact. *** The relevant issue is

whether an objective observer, acquainted with

the text, legislative history, and implementation

of the statute, would perceive it as a state

endorsement of [religion].

472 U.S. at 76 (quoting Lynch, 465 U.S. at 693-94).

Elsewhere she stated that: “the endorsement test

necessarily focuses upon the perception of a reasonable,

informed observer.” Pinette, 515 U.S. at 773 (O’Connor,

J., concurring).4

4

Compare Justice O’Connor’s measure with that of Justice Souter,

who opined that he “attribute[s] these perceptions of the intelligent

observer to the reasonable observer of Establishment Clause

analysis…, where I believe that such reasonable perceptions

matter.” Pinette, 515 U.S. at 786 (Souter, J., concurring).

Likewise, Justice Stevens articulated a less informed “reasonable

person” standard to determine whether an endorsement of religion

exists when addressing the second prong in Lemon: If a reasonable

person could perceive a government endorsement of religion from

12

Citing Lemon’s progeny in Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 308 (2000), the appellate

court relied on Justice O’Connor’s version of the

endorsement test in the case at bar. Pet.App.18-19:

Guided by Santa Fe, we ask whether an

objective observer familiar with the history...

would view BSD’s allowance of that activity as

“stamped with [his or] her school’s seal of

approval.” Id. at 308 quoting Wallace, 472 U.S.,

at 73, 76 (O’Connor, J., concurring in judgment)

and Pinette, 515 U.S. at 777 (1995) (O’Connor,

J., concurring in part and concurring in

judgment).

Thus, from Lemon and its progeny evolved the

endorsement analysis and application relied upon by

the appellate court.

After a pugilistic presentation of the facts, the

appellate court concluded that “an objective observer

could reach no other conclusion than that the

government endorsed Kennedy’s religious activity by

not stopping the practice.” Pet.App.21

“In sum, there is no doubt that an objective

observer, familiar with the history... would view his

demonstrations as BSD’s endorsement of a particular

a private display, then the State may not allow its property to be

used as a forum for that display. No less stringent rule can

adequately protect nonadherents from a well-grounded perception

that their sovereign supports a faith to which they do not

subscribe. Id. at 799 (Stevens, J., dissenting).

13

faith. For that reason, BSD had adequate justification

for its treatment of Kennedy.” Pet.App.22-23.

The appellate court’s reliance on Lemon’s progeny

ignored the plain meaning of the words in the Clause.

When the Drafters wrote the Establishment Clause,

they well knew the meanings of both “establish” and

“endorse.” They chose “establish” to express their

intent. If they had meant “endorse,” there is no doubt

they would have used that word. They did not. Lemon,

and its progeny relied upon by the appellate court,

should not have altered the meaning of the

Establishment Clause, and this Court should correct

that error.5

Amicus Curiae urges this Court to reverse Lemon

and its secular purpose and endorsement test progeny

used by the appellate court because these decisions

extra-constitutionally permit changeable political

preferences of unelected judges to substitute their

politically unaccountable will for the politically

accountable governance guaranteed by the

Constitution.

5

Moreover, when determining the constitutionality of a

government action under Lemon, the content of the government

action is irrelevant. Instead, the Lemon test requires that a judge

make a subjective assessment as to whether the government actor

had a secular purpose (i.e., the judge may indulge in relatively

unconstrained speculation regarding another government official’s

state of mind, and subjectively conclude whether the government

actor had a secular purpose). If the judge feels there was not a

secular motive, the judge must hold that the government action

violates the Establishment Clause.

14

As analyzed below, Lemon’s “secular purpose” and

“no symbolic endorsement” policies: 1) exceed the scope

of judicial power granted in Article III of the

Constitution; 2) bypass constitutionally required

processes for amending the Constitution; 3) undermine

the legitimacy of the judiciary; 4) create substantial

unpredictability in the law; and 5) foster unjustifiable

hostility toward the religious identity and dignity of

numerous United States citizens.

1) The Appellate Court Exceeded the Scope of

the Judicial Power

Lemon’s test, as evolved by its progeny, exceeds the

scope of judicial power stated in Article III of the

Constitution. In pertinent part, Article III of the

Constitution provides that:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish... The judicial

Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the

Laws of the United States, and Treaties made,

or which shall be made, under their

Authority. . . .

U.S. Const. art. III, §§ 1-2.

The appellate court, like Lemon before it,

conspicuously failed to identify any legitimate source of

constitutional authority on which it relied when

amending the meaning of the Establishment Clause.

The simple reason Lemon and its progeny failed to do

15

so is that no enumerated judicial power exists for the

judiciary to amend the Constitution.

The Federal Government “is acknowledged by

all, to be one of enumerated powers.” That is,

rather than granting general authority to

perform all the conceivable functions of

government, the Constitution lists, or

enumerates, the Federal Government’s

powers. . . . The enumeration of powers is also a

limitation of powers, because “[t]he enumeration

presupposes something not enumerated.” The

Constitution’s express conferral of some powers

makes clear that it does not grant others. And

the Federal Government “can exercise only the

powers granted to it.”

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

2577 (2012) (internal citations omitted) (quoting

McCulloch v. Maryland, 17 U.S. 316, 404-05 (1819));

U.S. Const. art. I, § 8, cls. 5, 7, 12; Gibbons v. Ogden, 9

U.S. 194-95 (1824).

Nothing in Article III empowers the Court to change

or “evolve” the Constitution. Moreover, nothing in

Marbury v. Madison’s ubiquitous assertion that it is

the province of the Court to say what the law is,

empowers the Court to say instead what it prefers the

law to be. 5 U.S. 137 (1803).

Lemon, and its progeny relied upon by the appellate

court, venture far beyond the scope of its Article III

powers. Such a venture improperly permits the

political preferences of unelected judges to amend the

Establishment Clause. Lemon rewrites “make no law

16

respecting an establishment of religion” to instead

require that “every government action have a secular

purpose and not even symbolically endorse religion.”

403 U.S. at 612-13. All because a panel of unelected

Justices preferred it so.

2) The Appellate Court, Substituting

Endorsement as Establishment, Bypassed

Constitutionally Required Processes for

Amending the Constitution

In amending the meaning of the words in the

Establishment Clause, Lemon and its progeny

bypassed constitutionally required political processes

that specifically require involvement of politically

accountable state legislatures. Article V of the

Constitution, in pertinent part, provides:

The Congress, whenever two thirds of both

houses shall deem it necessary, shall propose

amendments to this Constitution, or, on the

application of the legislatures of two thirds of

the several states, shall call a convention for

proposing amendments, which, in either case,

shall be valid to all intents and purposes, as part

of this Constitution, when ratified by the

legislatures of three fourths of the several

states, or by conventions in three fourths

thereof, as the one or the other mode of

ratification may be proposed by the

Congress. . . .

U.S. Const. art. V.

Although the judicial branch may hold the power to

say what the provisions of the Constitution mean, that

17

power does not extend to amending or evolving the

meaning of these provisions. That power is delegated to

the politically accountable branches of government in

Article V. Thus, when Lemon amended the meaning of

the Establishment Clause, it usurped legislative

authority contrary to the express provisions in Article

V.

3) Lemon, and its Progeny Relied upon by the

Appellate Court, Undermines the Legitimacy

of the Judiciary

When a court steps beyond its limited duty and

usurps legislative authority, as the Court did in Lemon,

it undermines good governance under the Rule of Law

and its own legitimacy. To test the provisions of a

government action against the Constitution is one

thing; imposing a new meaning on the words of the

Constitution to achieve a judicially preferred outcome

or social policy is another.

Those supporting Lemon, and its progeny relied

upon by the appellate court, wrongly see the

Constitution as an evolving organism, the meaning of

which they believe their office empowers them to

actively manipulate. They become Platonic Philosopher

Kings, ruling by judicial fiat, unbound by the

constraints of the Constitution’s actual language.

Lemon’s evolving endorsement prohibitions embed this

tyrannical principle in our constitutional jurisprudence

by allowing judges to make subjective, ad hoc

assessments as to whether a government actor had a

secular purpose or acted in a way endorsing a religion.

18

In this case, Respondents contend Mr. Kennedy’s

prayer violates an interpretation of the Establishment

Clause distorted by Lemon’s progeny. They ask this

Court to uphold the Ninth Circuit’s subjective

application of this Court’s judge-made Establishment

Clause doctrine banning government actions that

might “endorse” religion.

Lemon’s progeny, and its evolving endorsement

prohibition, makes a litigant’s success in judgeshopping the best indicator of whether a law will be

struck down under the Establishment Clause. This

Court should, therefore, overrule it.

If this Court’s judicially manufactured

Establishment Clause doctrine existed during the

Lincoln Administration, the Emancipation

Proclamation would be unconstitutional because

Lincoln expressly invoked “the gracious favor of

Almighty God” in the text of the proclamation.6 Our

nation was founded in the midst numerous public

expressions of prayer, and has survived over two

centuries of them, and there is undeniably no national

religion that has been established by this practice.

4) This Court’s Establishment Clause

Jurisprudence Creates Substantial

Unpredictability in the Law

Lemon, and its progeny cited by the appellate court,

also undermines predictability, a vital component of

6

Abraham Lincoln, Emancipation Proclamation, (Jan. 1, 1863),

https://catalog.archives.gov/id/299998?q=Emancipation%20Procl

amation#.Vflu0VtrT7w.link (last visited Feb. 24, 2022).

19

good governance under the Rule of Law. When it comes

to judicial review of government action and the

Establishment Clause, the subjective nature of Lemon’s

evolving jurisprudence produces inconsistent judicial

precedents. This inconsistency is inevitable because

judges utilizing Lemon make a personal subjective

assessment as to whether they happen to believe a

government actor had a secular motive or endorsed

religion - rather than looking to the content of the

action itself. Inconsistent judicial precedents lead to

unpredictability in the law. The inconsistent

precedents produced by Lemon’s subjectivist

jurisprudence provide no useful guidance for

government officials trying to act constitutionally.

To illustrate, compare two Establishment Clause

cases handed down by this Court on the same day: Van

Orden v. Perry, 545 U.S. 677 (2005) (upholding

government action placing Ten Commandments on

Government property as Constitutional) and McCreary

County v. ACLU, 545 U.S. 844 (2005) (striking down

government action placing Ten Commandments on

government property as unconstitutional). Four

justices would have upheld both. Four justices would

have struck down both. One justice upheld one and

struck down the other – applying Lemon’s subjective

standard, finding one symbolically endorsed religion

and the other did not. Compare, Lynch v. Donnelly, 465

U.S. 668 (1984) (upholding a display of Jesus in a

manger on public land as constitutional) and Cnty. of

Allegheny, 492 U.S. at 573 (holding that a creche

display on public property violated the Establishment

Clause); compare also Marsh, 463 U.S. at 783 (holding

a public expression of prayer constitutional) and Santa

20

Fe Indep. Sch. Dist., 530 U.S. at 290 (holding a public

expression of prayer unconstitutional).

If this Court’s Establishment Clause jurisprudence

says the same practices are both constitutional and

unconstitutional, then no predictability exists for those

seeking to conform their conduct to the law. It also

reveals the absurdity of the doctrine and the potential

for its abuse by a politically motivated judge or activist

lawyer. Predictability in the law is a necessary

component of good governance under the Rule of Law.

This Court’s existing Establishment Clause

jurisprudence replaces predictability in the law with

the “evolving” political preferences of unelected judges.

5) The Appellate Court’s Decision Fosters

Unjustifiable Hostility Toward Religious

Identity

Finally, this Court’s judicially contrived

Establishment Clause jurisprudence, relied upon by

the appellate court, creates unjustifiable hostility

toward the religious identity of numerous United

States citizens. Many United States citizens seek

guidance from their faith as part of their identity.

Activist lawyers, government bureaucrats, and

politically motivated judges repeatedly use this Court’s

Establishment Clause jurisprudence to denigrate a

person’s religious identity. They do so by requiring

religious people to substitute a purpose informed by

their religious conscience for one founded on secular

beliefs or traditions.

Requiring, as the government did here, that every

action have a secular purpose, and not even

21

symbolically endorse religion, is hostile toward a

person’s religious identity. It also attempts to make

that identity culturally, socially, and politically

irrelevant. Proponents of this secular approach favor it

because it enables judges to nullify unalienable rights.

Here they demand that only those with a secular belief

system may motivate and inspire student athletes.

Pet.App.5-6. Likewise, they assert that everyone can

participate in important policy discussions except those

whose identity is informed by religious viewpoints.

For example, in the State of Louisiana, Darwin’s

theory of evolution was taught in the government

schools. Louisiana passed a law to also accommodate

those with a different theory on the origin of the

universe - creation science.7 On its face, such an effort

embodies the very essence of neutrality. The Court,

however, reached an opposite conclusion in Edwards v.

Aguillard, holding the law unconstitutional because it

lacked a secular purpose and symbolically endorsed

religious ideas. 482 U.S. 578, 583, 592 (1987). Thus,

according to Lemon’s revisionist test, and the appellate

court below, to be constitutionally “neutral,” all laws

and other government action must have a secular

purpose and not even symbolically endorse religion.8

7

The law prohibited the teaching of the theory of evolution in

public schools unless accompanied by the instruction in creation

science.

8

See also G. Moens, The Menace of Neutrality in Religion, 2004

BYU L. Rev. 535, 566-572 (2004) (discussing how the neutrality

principles demean religion in the United States).

22

Similarly, in Epperson v. Arkansas, the State of

Arkansas passed a law regulating the teaching of

evolution. 393 U.S. 97 (1968). The Court began its

analysis by declaring that “[g]overnment in our

democracy . . . must be neutral . . . .” Id. at 103. The

Court nevertheless proceeded to hold that because the

law was motivated by a religious purpose, it violated

the Establishment Clause. Thus, although often

couching its analysis in terms of neutrality, court

decisions utilizing Lemon’s progeny require secularly

informed purposes while prohibiting religiously

informed ones. Descriptive of such an analysis is

Justice O’Connor’s concurring opinion in Wallace v.

Jaffree:

It is not a trivial matter, however, to require

that the legislature manifest a secular purpose

and omit all sectarian endorsements from its

laws ... It reminds government that when it acts

it should do so without endorsing a particular

religious belief or practice that all citizens do not

share.

472 U.S. at 75-76.

It is apparently acceptable, and sufficiently neutral

though, for government to dictate and endorse a

secular belief or practice that all citizens do not

share – even though the secular perspective necessarily

implies a rejection of religious significance. If another

coach on another public-school field bowed the knee in

a message of protest of civil authority, the government

regime in this case would have done nothing to stop it.

23

The implications of decisions like Aguillard and

Epperson are immense. Mandating the irrelevance of

religious identity and God enables judicial

extermination of our unalienable liberty as viewed by

the Framers.

Too many judges and other government authorities

rely on Lemon and its progeny to diminish religious

identity and conscience. By way of example, senior

citizens at a nursing home in Georgia were prohibited

from praying before they ate their meal. The

government said that because the meals were

subsidized by the government, praying over the meal

would be a violation of the Establishment Clause.

Associated Press, Georgia Seniors Told They Can’t

Pray Before Meals, (May 10, 2010; updated Jan. 6,

2015), https://www.foxnews.com/us/prayers-answeredseniors-can-pray-before-meals-at-georgia-center (last

visited Feb. 9, 2022).

Likewise, those whose actions are informed by the

sacred rather than the secular have faced

Establishment Clause challenges for: erecting the Ten

Commandments, McCreary County v. American Civil

Liberties Union of Kentucky, 545 U.S. 844 (2005);

raising memorials for fallen heroes, Am. Humanist

Ass’n v. Maryland-Nat’l Cap. Park & Plan. Comm’n,

874 F.3d 195, 201 (4th Cir. 2017), rev’d and remanded

sub nom. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct.

2067 (2019), Am. Atheists, Inc v. Duncan, 616 F.3d

1145 (10th Cir. 2010); engaging in a moment of silence

prior to starting school, Wallace v. Jaffree, 472 U.S. 38

(1985); praying prior to football games, Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290 (2000); and for

24

displaying a manger scene at Christmas time, Cnty. of

Allegheny v. Am. Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573 (1989).

Several Justices have recognized how, contrary to

the plain meaning of the Establishment Clause,

Lemon’s evolving judicially contrived jurisprudence

creates unjustifiable hostility toward the religious

identity of numerous United States citizens:

Government policies of accommodation,

acknowledgment, and support for religion are an

accepted part of our political and cultural

heritage . . . . Rather than requiring government

to avoid any action that acknowledges or aids

religion, the Establishment Clause permits

government some latitude in recognizing and

accommodating the central role religion plays in

our society [citation omitted]. Any approach less

sensitive to our heritage would border on latent

hostility toward religion, as it would require

government in all its multifaceted roles to

acknowledge only the secular, to the exclusion

and so to the detriment of the religious . . . .

When the state encourages religious

instruction . . . it follows the best of our

traditions. For it then respects the religious

nature of our people and accommodates the

public service to their spiritual needs. To hold

that it may not would be to find in the

Constitution a requirement that the government

show a callous indifference to religious groups.

That would be preferring those who believe in no

religion over those who do believe.

25

***

Neither government nor this Court can or should

ignore the significance of the fact that a vast

portion of our people believe in and worship God

and that many of our legal, political and

personal values derive historically from religious

teachings. Government must inevitably take

cognizance of the existence of religion.

Cnty. of Allegheny, 492 U.S. at 657-59 (Kennedy, J.,

dissenting). These Justices correctly recognized that

Lemon’s “view of the Establishment Clause reflects an

unjustified hostility toward religion, a hostility

inconsistent with our history and our precedents.” Id.

at 655.

For those who view the world through their

religious identity, God and his Word are real, and,

therefore, really matter. Obergefell v. Hodges, 135 S.

Ct. 2071 (2015). It is part of who they are. They

understandably oppose devolutionary social

engineering that threatens the health, safety, and

morals of the nation, as viewed through their religious

identity. The government, envisioned by the appellate

court and Lemon’s progeny, must shape public policy

informed by secular dogma, without regard to any

religious conscience or moral considerations. In such a

government, wisdom derived from religious tradition or

individual conscience informed thereby has no place.

Under our Constitution, people should not have to

choose between fidelity to their religious identity or

participating in First Amendment protected activity.

Lemon and its progeny demand that they do so,

invalidating any expression that is informed by their

26

religious identity. Thus, Lemon’s jurisprudential legacy

deprives people of faith of their dignity by telling them

that reliance on their faith while serving in government

(here a government school) is unconstitutional.

In the larger picture, prohibiting a policy or

practice, simply because it is informed by ancient

sacred tenets, prevents thousands of years of wisdom

from informing the public ethic. The idea that God

created humans in His image, and that all human life

has dignity, ended slavery and advanced the rights of

women around the world.

We are, therefore, in the midst of a high-stakes

battle over the character of the American nation. The

extent to which Lemon’s jurisprudence prevails over

the plain meaning of the constitution will determine:

1) whether unalienable truth, as envisioned in the

Declaration of Independence, will continue to be

relevant as an objective limit on government action;

and 2) whether the judiciary replaces the Framers’

intent with its own personal social policy views.

Institutional integrity cannot exist without personal

virtue. Good governance and civic institutional

integrity rest on the virtue of those holding power

within those institutions. Ideas grounded in one’s

religious identity support and nurture this virtue and

should, therefore, always be permitted within the

marketplace of ideas and the policymaking process.

Lemon, and its progeny relied upon by the appellate

court, precludes effective encouragement grounded in

one’s religious identity from inspiring the next

generation. It also precludes great ideas grounded in

one’s religious identity from entering the policymaking

27

process. People of faith should not be stripped of their

dignity, religious identity, and conscience in order to

serve in our constitutional republic. That certainly was

not the Framers’ vision.

In summary, the appellate court’s application of the

endorsement test misconstrues the Establishment

Clause in a manner which: 1) exceeds the scope of

Article III, 2) bypasses constitutionally required

processes for amending the constitution, 3) undercuts

the legitimacy of judicial power, 4) creates substantial

unpredictability in the law, and 5) fosters unjustifiable

hostility toward the religious identity and dignity of

numerous Americans. This Court should, therefore,

overrule Lemon and no longer apply its evolving “no

religious endorsement” progeny.

CONCLUSION

Because Mr. Kennedy’s praying was not a law

establishing a national religion, the praying did not

violate the plain meaning of the Establishment Clause

of the First Amendment. This Honorable Court should,

therefore, reverse the decision of the appellate court.

If some see Mr. Kennedy praying as an

endorsement of the values of patriotism, so be it. If

some see it as an endorsement of sacrificial love, so be

it. And if some see it, in part, as an endorsement of the

greatest sacrifice of love that stands at the center of

human history, so be it. It establishes no religion, and

neither the Founders of this Nation nor the Framers of

its Constitution would ever say that it did.

28

Respectfully submitted,

WILLIAM WAGNER

Counsel of Record

ERIN ELIZABETH MERSINO

GREAT LAKES JUSTICE CENTER

5600 W. Mount Hope Hwy

Lansing, MI 48917

(517) 643-1765

Prof.WWJD@gmail.org

Counsel for Amicus Curiae

February 25, 2022