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 AMICI CURIAE WORLD FAITH

FOUNDATION AND INSTITUTE FOR FAITH

AND FAMILY IN SUPPORT OF PETITIONER

__________________

JAMES L. HIRSEN

TAMI FITZGERALD

THE INSTITUTE FOR FAITH Counsel of Record

AND FAMILY

505 S. Villa Real Drive

9650 Strickland Road

Suite 101

Suite 103-222

Anaheim Hills, CA 92807

(714) 283-8880

Raleigh, NC 27615

(980) 404-2880

james@jameshirsen.com

tfitzgerald@ncvalues.org

DEBORAH J. DEWART

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amici Curiae

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

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

COACH KENNEDY PRAYS AS AN

INDIVIDUAL EXERCISING HIS

INDIVIDUAL RIGHTS TO SPEECH AND

FREE EXERCISE—NOT AS A

GOVERNMENT EMPLOYEE SPEAKING

FOR THE SCHOOL DISTRICT . . . . . . . . . . . 3

A. Government employees are citizens—not

robots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. When a government employee exercises

his liberty to pray, his words do not

morph into state speech . . . . . . . . . . . . . . . 6

C. Prayer is not within the scope of

Kennedy’s job duties as a football coach . . 9

II.

THE GOVERNMENT IS NOT REQUIRED

TO BANISH RELIGION FROM PUBLIC

LIFE GENERALLY OR PUBLIC

EDUCATION SPECIFICALLY . . . . . . . . . . 11

A. Public school students are entitled to a

truthful presentation of American history,

including its religious roots . . . . . . . . . . . 12

B. Respect for the religious practices of

others is a fundamental civic virtue that

public schools can and should cultivate . 14

ii

C. Coercion is required for an Establishment

Clause violation . . . . . . . . . . . . . . . . . . . . 17

D. Student observation of prayer is not

tantamount to coercion . . . . . . . . . . . . . . 19

III.

THE NINTH CIRCUIT PITS THE

ESTABLISHMENT CLAUSE AGAINST

THE FREE EXERCISE CLAUSE,

CREATING TENSION WHERE NONE

EXISTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Establishment Clause does not

justify a government employer’s denial

of an employee’s First Amendment

freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. The First Amendment guarantees

heightened protection for religion, not

“irreligion.” . . . . . . . . . . . . . . . . . . . . . . . . 24

C. This case lacks the state action required

for an Establishment Clause violation . . 25

D. No reasonable observer would attribute

Kennedy’s prayer to the School District . 26

IV.

COACH KENNEDY’S RIGHT TO PRAY

MUST BE AFFIRMED WHEN

CONSIDERED AGAINST THE BACKDROP

OF AMERICAN HISTORY . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

iii

CASES

TABLE OF AUTHORITIES

American Jewish Congress v. City of Chicago,

827 F.2d 120 (7th Cir. 1987). . . . . . . . . . . . . . . . . 8

Am. Legion v. Am. Humanist Ass’n,

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

Bd. of Educ., Island Trees Union Free Sch. Dist. v.

Pico, 457 U.S. 853 (1982) . . . . . . . . . . . . . . . . . . 16

Bd. of Ed. of Westside v. Mergens,

496 U.S. 226 (1990). . . . . . . . . . . . . . . . . . 7, 16, 28

Branti v. Finkel,

445 U.S. 507 (1980). . . . . . . . . . . . . . . . . . . . . . . . 5

Cantwell v. Connecticut,

310 U.S. 296 (1940). . . . . . . . . . . . . . . . . . . . . . . 26

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995). . . . . . . . . . . . . . . . . . 6, 13, 28

Coles ex rel. Coles v. Cleveland Bd. of Educ.,

171 F.3d 369 (6th Cir. 1999). . . . . . . . . . . . . . . . 15

Connick v. Myers,

461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . . . . . 4, 5

Corporation of the Presiding Bishop v. Amos,

483 U.S. 327 (1987). . . . . . . . . . . . . . . . . . . . . . . 17

County of Allegheny v. ACLU,

492 U.S. 573 (1989). . . . . . . . . . . . . . . . . . . . . . . 28

Diamond v. Charles,

476 U.S. 54 (1986). . . . . . . . . . . . . . . . . . . . . . . . 29

iv

Elk Grove Unified School District v. Newdow,

542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . 13, 28

Engel v. Vitale,

370 U.S. 421 (1962) . . . . . . . . . . . . . . . . 18, 19, 22

Epperson v. Arkansas,

393 U.S. 97 (1968). . . . . . . . . . . . . . . . . . . . . . . . 24

Garcetti v. Ceballos,

547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . passim

Givhan v. W. Line Consol. Sch. Dist.,

439 U.S. 410 (1979). . . . . . . . . . . . . . . . . . . . . . . 14

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . 23

Griswold v. Connecticut,

381 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . 16

Healy v. James,

408 U.S. 169 (1972). . . . . . . . . . . . . . . . . . . . . . . 13

Johnson v. Poway Unified Sch. Dist.,

658 F.3d 954 (9th Cir. 2011). . . . . . . . . . . . . . . . 16

Kennedy v. Bremerton Sch. Dist. (Kennedy I),

869 F.3d 813 (9th Cir. 2017). . . . . . . . . . . . passim

Kennedy v. Bremerton Sch. Dist. (Kennedy II),

139 S. Ct. 634 (2019). . . . . . . . . . . . . . . . . 7, 10, 20

Kennedy v. Bremerton Sch. Dist. (Kennedy III),

991 F.3d 1004 (9th Cir. 2021). . . . . . . . . . . passim

Kennedy v. Bremerton Sch. Dist. (Kennedy IV),

4 F.4th 910 (9th Cir. 2021) . . . . . . . . . . . . . passim

v

Keyishian v. Board of Regents,

385 U.S. 589 (1967). . . . . . . . . . . . . . . . . . . . . 5, 16

Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993). . . . . . . . . . . . . . 27

Lane v. Franks,

573 U.S. 228 (2014). . . . . . . . . . . . . . . . . . . 5, 9, 23

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . passim

Lemon v. Kurzman,

403 U.S. 602 (1974). . . . . . . . . . . . . . 21, 23, 27, 32

Lynch v. Donnelly,

465 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . 12, 31

Malnak v. Yogi,

592 F.2d 197 (3d Cir. 1979) . . . . . . . . . . . . . . . . . 6

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019). . . . . . . . . . . . . . . . . . . . . 25

Marsh v. Chambers,

463 U.S. 783 (1983). . . . . . . . . . . . . . . . . . . . 31, 32

McCreary County v. ACLU,

545 U.S. 844 (2005). . . . . . . . . . . . . . . . . 24, 25, 30

Meyer v. Nebraska,

262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . . 4

Peloza v. Capistrano Unified Sch. Dist.,

37 F.3d 517 (9th Cir. 1994). . . . . . . . . . . . . . 10, 23

Perry v. Sindermann,

408 U.S. 593 (1972). . . . . . . . . . . . . . . . . . . . . . 3, 5

vi

Pickering v. Bd. of Educ.,

391 U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . 5

Pleasant Grove City v. Summum,

555 U.S. 460 (2009). . . . . . . . . . . . . . . . . . . . . . . . 8

Salazar v. Buono,

559 U.S. 700 (2010). . . . . . . . . . . . . . . . . . . . . . . 12

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

530 U.S. 290 (2000). . . . . . . . . . . . . . 17, 27, 29, 31

Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963). . . . . . . . . . . . . . . . . . . . 18, 22

Shelton v. Tucker,

364 U.S. 479 (1960). . . . . . . . . . . . . . . . . . . . . . . 15

Terrett v. Taylor,

13 U.S. (9 Cranch) 43 (1815) . . . . . . . . . . . . . . . 24

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . . . . 4, 16

Town of Greece v. Galloway,

572 U.S. 565 (2014). . . . . . . . . . . . . . . . . . . . . . . 32

Van Orden v. Perry,

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

Wallace v. Jaffree,

472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . 25, 33

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . 15, 19

Widmar v. Vincent,

454 U.S. 263 (1981). . . . . . . . . . . . . . . . . . . . . . . 23

vii

Wieman v. Updegraff,

344 U.S. 183 (1952). . . . . . . . . . . . . . . . . . . . . . . 14

Zorach v. Clauson,

343 U.S. 306 (1952). . . . . . . . . . . . . . 15, 21, 22, 31

STATUTES

36 U.S.C. § 116(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 31

OTHER AUTHORITIES

1 Annals of Cong. 90 . . . . . . . . . . . . . . . . . . . . . . . . 30

3 Joseph Story, Commentaries on the Constitution

of the United States § 405 (1833). . . . . . . . . . . . 22

Inaugural Addresses of the Presidents of the United

States, S. Doc. 101-10 (1989) . . . . . . . . . . . . . . . 30

Letter (Oct. 11, 1798), reprinted in 9 Works of John

Adams 229 (C. Adams ed. 1971). . . . . . . . . . 29, 30

James Madison’s “Memorial and Remonstrance

Against Religious Assessments” . . . . . . . . . . . . 33

Northwest Territory Ordinance,

1 Stat. 52, n. (a). . . . . . . . . . . . . . . . . . . . . . . 12, 13

Presidential Proclamation, 1 Messages and Papers

of the Presidents, 1789-1897 (J. Richardson ed.

1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

S. Rep. No. 82-1389 . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Alexis de Tocqueville, 1 Democracy in America

(2d ed. 1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

viii

Joseph P. Viteritti, Blaine’s Wake: School Choice,

the First Amendment, and State Constitutional

Law, 21 Harv. J. L. & Pub. Pol’y 657 (1998) . . . 32

1

INTEREST OF AMICI CURIAE1

Amici curiae respectfully urge this Court to reverse

the decision of the Ninth Circuit.

World Faith Foundation is a California non-profit,

tax-exempt corporation established to preserve and

defend the customs, beliefs, values, and practices of

religious faith, as guaranteed by the First Amendment,

through education, legal advocacy, and other means.

WFF’s founder is James L. Hirsen, professor of law at

Trinity Law School and Biola University in Southern

California and author of New York Times bestseller,

Tales from the Left Coast, and Hollywood Nation. Mr.

Hirsen is a frequent media commentator who has

taught law school courses on constitutional law. Cocounsel Deborah J. Dewart is the author of Death of a

Christian Nation (2010) and holds a degree in theology

(M.A.R., Westminster Seminary, Escondido, CA).

Institute for Faith and Family (“IFF”) is a North

Carolina nonprofit corporation established to preserve

and promote faith, family, and freedom by working in

various arenas of public policy to protect constitutional

liberties, including religious liberty and parental

rights. This Court’s decision will help the State of

North Carolina preserve its Opportunity Scholarship

Program, which provides scholarships to low-income

children throughout the state. See https://iffnc.com.

1

The parties have consented to the filing of this brief. Amici

curiae certify that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amici, their

members, or their counsel, has made a monetary contribution to its

preparation or submission.

2

INTRODUCTION AND SUMMARY OF

THE ARGUMENT

When National Day of Prayer legislation was

introduced in 1952, a Senate report concluded that

“[p]rayer has indeed been a vital force in the growth

and development of this Nation,” and thus an annual

day of prayer would be an appropriate way of

“reaffirming in a dramatic manner the deep religious

conviction which has prevailed throughout the history

of the United States.” S. Rep. No. 82-1389. But Coach

Kennedy’s short, private prayer has triggered several

years of intense litigation culminating on the steps of

this Court, merely because his act of prayer might be

seen by students. Bremerton School District seems

obsessed with the fact that Kennedy may be observed

by students when he prays. This near-paranoid view of

the Constitution leaves students with a truncated view

of American history that omits the Nation’s rich

religious heritage.

The complex intersection of public and private

speech is nowhere more evident than in public

education—the “marketplace of ideas”—where young

minds are exposed to a wide range of subjects. The

government is responsible for a considerable amount of

speech, but the individuals involved in the system,

including teachers, are also private citizens who enjoy

First Amendment rights. In preparing young minds for

citizenship, schools must provide an accurate and

complete picture of American history, including the role

of religion.

The Ninth Circuit pits the Establishment Clause

against the Free Exercise Clause, creating unnecessary

3

tension. Prayer is not part of Kennedy’s job duties. He

prays as a private citizen, not as a government

employee. That is abundantly clear to any reasonable

observer.

ARGUMENT

I.

COACH KENNEDY PRAYS AS AN

INDIVIDUAL EXERCISING HIS

INDIVIDUAL RIGHTS TO SPEECH AND

FREE

EXERCISE—NOT

AS

A

GOVERNMENT EMPLOYEE SPEAKING

FOR THE SCHOOL DISTRICT.

There would only be an Establishment Clause

violation if Kennedy’s prayer were government speech.

But because the prayer is Kennedy’s private speech as

a citizen, outside the scope of his job duties, Bremerton

may not suppress it. The School District’s actions

violate both the Free Speech and Free Exercise

Clauses.

A. Government employees are citizens—

not robots.

Even as an employer, the government is still the

government, subject to constitutional constraints. Even

as a government employee, a citizen is still a citizen.

Government employees “do not surrender all their First

Amendment rights by reason of their employment.”

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). The

Constitution does not permit a public employer to

“leverage the employment relationship to restrict,

incidentally or intentionally, the liberties employees

enjoy in their capacities as private citizens.” Id. at 419;

see Perry v. Sindermann, 408 U.S. 593, 597 (1972);

4

Connick v. Myers, 461 U.S. 138, 147 (1983) (“Our

responsibility is to ensure that citizens are not

deprived of fundamental rights by virtue of working for

the government”). Neither students nor teachers “shed

their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969). In Meyer v. Nebraska, 262 U.S. 390 (1923), this

Court held that states may not forbid teaching a

foreign language to young students because that would

“unconstitutionally interfere with the liberty of teacher,

student, and parent.” Tinker, 393 U.S. at 506

(emphasis added).

The Ninth Circuit “obliterates such constitutional

protections by announcing a new rule that any speech

by a public school teacher or coach, while on the clock

and in earshot of others, is subject to plenary control by

the government.” Kennedy v. Bremerton Sch. Dist.

(Kennedy IV), 4 F.4th 910, 930 (9th Cir. 2021)

(O’Scannlain, J., dissenting from denial of rehearing en

banc). This rigid rule would muzzle Kennedy’s First

Amendment rights from “the moment [he] arrives at

work until the very last of his players has gone home

after a game.” Id. The Ninth Circuit’s ruling clearly

conflicts with Garcetti and decades of this Court’s

precedent “affirming that the First Amendment

safeguards—not banishes—private, voluntary religious

activity by public employees.” Id.

The doctrine of unconstitutional conditions further

condemns the circuit ruling. “[A] State cannot condition

public employment on a basis that infringes the

employee’s constitutionally protected interest in

5

freedom of expression.” Garcetti, 547 U.S. at 413; see

Connick, 461 U.S. at 142; Keyishian v. Board of

Regents, 385 U.S. 589, 605-606 (1967); Pickering v. Bd.

of Educ., 391 U.S. 563 (1968); Perry, 408 U.S. at 597;

Branti v. Finkel, 445 U.S. 507, 515-516 (1980). There

was a time when “a public employee had no right to

object to conditions placed upon the terms of

employment—including those which restricted the

exercise of constitutional rights.” Garcetti, 547 U.S. at

417, quoting Connick, 461 U.S. at 143. That theory has

been “uniformly rejected.” Pickering, 391 U.S. at 568;

Keyishian, 385 U.S. at 605-606. As this Court

confirmed in Lane v. Franks, “public employees do not

renounce their citizenship when they accept

employment, and . . . public employers may not

condition employment on the relinquishment of

constitutional rights.” 573 U.S. 228, 236 (2014).

Pickering crafted a test with respect to a public

employee’s free speech rights that balances “between

the interests of the teacher, as a citizen, in commenting

upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of

the public services it performs through its employees.”

Pickering, 391 U.S. at 568. The government has

“broader discretion” when acting in its role as

employer, “but the restrictions it imposes must be

directed at speech that has some potential to affect the

entity’s operations.” Garcetti, 547 U.S. at 418.

Perhaps, as Judge Ikuta suggests, this Court could

develop “a parallel framework for evaluating how a

public employer can protect its employee’s religious

expression without becoming vulnerable to an

6

Establishment Clause claim.” Kennedy IV, 4 F.4th at

945 (Ikuta, J., dissenting from denial of rehearing en

banc). In such a “parallel framework,” the public

employer’s authority, during working hours and at its

place of business, might resemble the time-placemanner restrictions that government may place on

First Amendment speech rights. For example, religious

expression woven into public-school curriculum during

hours of compulsory attendance, mandating student

participation, is far different than a coach’s individual

private prayer at the end of an extracurricular

ballgame. The facts in Kennedy’s case contrast sharply

with a Third Circuit case involving “ceremonial student

offerings to deities as part of a regularly scheduled

course in the schools’ educational programs.” Malnak

v. Yogi, 592 F.2d 197, 200 (3d Cir. 1979). The court

properly found an Establishment Clause violation

under these circumstances.

B. When a government employee exercises

his liberty to pray, his words do not

morph into state speech.

Bremerton’s policy intentionally stifles religious

speech, which is not only “as fully protected . . . as

secular private expression,” but historically,

“government suppression of speech has so commonly

been directed precisely at religious speech that a freespeech clause without religion would be Hamlet

without the prince.” Capitol Square Review & Advisory

Bd. v. Pinette, 515 U.S. 753, 760 (1995) (collecting

cases).

Speech classification is crucial in cases about

religious expression. The First Amendment protects

7

private religious expression but restricts government

speech. Bd. of Ed. of Westside v. Mergens, 496 U.S. 226,

250 (1990). Private speech is “the kind of activity

engaged in by citizens who do not work for the

government,” such as “writing a letter to a local

newspaper” or “discussing politics with a co-worker.”

Garcetti, 547 U.S. at 423. Public speech occurs where a

public employee speaks in his or her capacity as a

public employee and “there is no relevant analogue to

speech by citizens who are not government employees.”

Id. at 424.

Kennedy prayed “at a time when it would have been

permissible for him to engage briefly in other private

conduct, say, calling home or making a reservation for

dinner at a local restaurant.” Kennedy v. Bremerton

Sch. Dist. (Kennedy II), 139 S. Ct. 634, 635-636 (2019)

(Alito, J., concurring). The Ninth Circuit rejected

Justice Alito’s examples, reasoning that “Kennedy’s

conduct violated the Establishment Clause, and

obviously, checking a cell phone does not.” Kennedy v.

Bremerton Sch. Dist. (Kennedy III), 991 F.3d 1004,

1021 (9th Cir. 2021). This misses the point. A cell

phone call to a spouse is not religious conduct, but it is

clearly private speech. So is Kennedy’s personal prayer

“because there is a clear civilian analogue: Millions of

Americans give thanks to God, a practice that has

nothing to do with coaching a sport.” Kennedy IV, 4

F.4th at 937 (O’Scannlain, J., dissenting from denial of

rehearing en banc). If Kennedy were instructing his

team on the field, that speech—unlike his

prayer—would “owe[] its existence to a public

employee’s professional responsibilities.” Garcetti, 547

U.S. at 421. The Ninth Circuit erroneously “lumps

8

together obvious examples of football coaching, calling

plays and the like, with any speech that can be

overheard by someone else, no matter how personal or

private it may be.” Kennedy IV, 4 F.4th at 934

(O’Scannlain, J., dissenting from denial of rehearing en

banc).

The line between public and private speech may be

fuzzy. “[W]hen public officials deliver public

speeches . . . their words are not exclusively a

transmission from the government because those

oratories have embedded within them the inherently

personal views of the speaker as an individual member

of the polity.” Van Orden v. Perry, 545 U.S. 677, 723

(2005) (Stevens, J., dissenting). Courts continue to

wrestle with the interaction between the “government

speech doctrine” and Establishment Clause principles.

Pleasant Grove City v. Summum, 555 U.S. 460, 485-486

(2009) (Souter, J., concurring). But the Establishment

Clause does not impose an absolute suppression on

state and federal governments, which “have engaged in

religious speech since the founding of the

Republic”—established chaplaincies, military and

prison chapels, the national motto and anthem, the

Pledge, and religious proclamations—including

National Day of Prayer, Memorial Day, and the “Year

of the Bible” (1983). American Jewish Congress v. City

of Chicago, 827 F.2d 120, 133 (7th Cir. 1987)

(Easterbrook, J., dissenting). Proclamations for

Thanksgiving Day and the National Day of Prayer

“undoubtedly seem official” but “in most circumstances

they will not constitute the sort of governmental

endorsement of religion at which the separation of

church and state is aimed.” Van Orden, 545 U.S. at 723

9

(Stevens, J., dissenting). Such speech leaves Americans

as free as they were before. Similarly, Kennedy’s

prayers leave the students, other faculty, and

spectators free of even the slightest coercion.

C. Prayer is not within the scope of

Kennedy’s job duties as a football coach.

Under Garcetti, the “critical question” is whether

Kennedy’s prayer is “ordinarily within the scope of [his]

duties.” Lane, 573 U.S. at 240 (2014); Kennedy III, 991

F.3d at 1015. Garcetti held that “when public

employees make statements pursuant to their official

duties, the employees are not speaking as citizens for

First Amendment purposes.” Garcetti, 547 U.S. at 421

(emphasis added). This applies to speech “the employer

itself has commissioned or created.” Id. at 422. The

Ninth Circuit cited this portion of Garcetti yet reached

the strange conclusion that “Kennedy spoke as a public

employee, not as a private citizen.” Kennedy v.

Bremerton Sch. Dist. (Kennedy I), 869 F.3d 813, 822823 (9th Cir. 2017). Prayer would logically be within

the “official duties” of a ministerial employee serving a

church or other religious organization, but not the

“official duties” of a football coach. Bremerton did not

“commission or create” Kennedy’s prayers. The Ninth

Circuit defies logic: “How can the panel hold that

prayer was one of Kennedy’s job duties when his

employer maintained a policy banning it?” Kennedy IV,

4 F.4th at 937 (O’Scannlain, J., dissenting from denial

of rehearing en banc). That is truly a “bizarre

conclusion.” Id. at 934.

The Ninth Circuit highlights Kennedy’s obligation

as a “role model” for students. Kennedy I, 869 F.3d at

10

826 (“modeling good behavior while acting in an official

capacity in the presence of students and spectators”);

id. (“role model and moral exemplar”); id. at 827

(“communicating the District’s perspective on

appropriate behavior through the example set by his

own conduct”); Kennedy III, 991 F.3d at 1016

(“demonstrative communication as a role model for

players”); id. at 1015 (“clothed with the mantle of one

who imparts knowledge and wisdom,” quoting Peloza v.

Capistrano Unified Sch. Dist., 37 F.3d 517, 522 (9th

Cir. 1994)).

The implications of the Ninth Circuit’s first ruling

are astounding. The opinion “can be understood to

mean that a coach’s duty to serve as a good role model

requires the coach to refrain from any manifestation of

religious faith.” Kennedy II, 139 S. Ct. at 637 (Alito, J.,

concurring). It is indeed “remarkable” to suggest that

any “outward manifestation of religious faith,” “even

while off duty” violates either the coach’s employment

duties or the Establishment Clause. Id. Perhaps even

more remarkable is the Ninth Circuit’s obsession with

the fact that Kennedy could be seen by students, as if

prayer were a shameful act to be hidden. “[B]y the

opinion’s sweeping logic, Kennedy’s prayer—no matter

how personal, private, brief, or quiet—was wholly

unprotected by the First Amendment.” Kennedy IV, 4

F.4th at 933 (O’Scannlain, J., dissenting from denial of

rehearing en banc). This conclusion “runs afoul of

controlling Supreme Court precedents on the Free

Speech, Free Exercise, and Establishment Clauses.” Id.

11

II.

THE GOVERNMENT IS NOT REQUIRED

TO BANISH RELIGION FROM PUBLIC

LIFE GENERALLY OR PUBLIC

EDUCATION SPECIFICALLY.

The wholesale exclusion of religious expression from

public education is neither required nor even permitted

by the Constitution. Students should be learning how

the First Amendment protects a variety of diverse

viewpoints, including religious beliefs and practices.

Instead, the Ninth Circuit joins the School District’s

portrayal of Kennedy’s short prayer as a shameful act

to be shrouded in secrecy. Their position transgresses

the government’s obligation of benevolent neutrality

toward religion.

The Religion Clauses together form a shield

guarding religion from government intrusion.

Compliance with the Establishment Clause does not

justify discrimination that targets religion and

banishes it from an entire sphere of public life. The

Clause is not a sword to wield against religious

expression in any public arena, even public education.

“We recognize that . . . throughout the course of the

educational process, there will be instances when

religious values, religious practices, and religious

persons will have some interaction with the public

schools and their students.” Lee v. Weisman, 505 U.S.

577, 598-599 (1992) (emphasis added). Religion does

not operate in a vacuum isolated from the rest of public

life.

Recent years have brought attempts to squelch

religious expression in the public square. One highly

litigated example is public invocations—compelling no

12

one to do anything and briefly exposing listeners to

religious content. These and similar efforts are

contrary to both the First Amendment and America’s

religious heritage. Indeed, “[a] relentless and allpervasive attempt to exclude religion from every aspect

of public life could itself become inconsistent with the

Constitution.” Salazar v. Buono, 559 U.S. 700, 719

(2010), quoting Lee, 505 U.S. at 598. “[T]he

Establishment Clause does not compel the government

to purge from the public sphere all that in any way

partakes of the religious.” Van Orden, 545 U.S. at 699

(Breyer, J., concurring).

A. Public school students are entitled to a

truthful presentation of American

history, including its religious roots.

It would be a “a stilted overreaction contrary to our

history and to our holdings” to censor Kennedy’s prayer

merely because it occurred in a public-school context.

Lynch v. Donnelly, 465 U.S. 668, 686 (1984). Indeed, it

would actively conceal America’s history to prohibit all

student exposure to public prayer—a tradition dating

back to the nation’s Founding.

“[P]rominent actions taken by the First Congress”

reflect a philosophy of the Establishment Clause that

makes room for the role of religion in American society.

Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067,

2087 (2019). These actions include “reenactment [of]

the Northwest Territory Ordinance, which provided

that ‘[r]eligion, morality, and knowledge, being

necessary to good government and the happiness of

mankind, schools and the means of education shall

13

forever be encouraged,’ 1 Stat. 52, n. (a).” Id. (emphasis

added).

The First Amendment guards the free exercise of

religion—not a sweeping right to freedom from religion.

Although the Establishment Clause protects against

coercive government endorsement, “some references to

religion in public life and government are the

inevitable consequence of our Nation’s origins.” Elk

Grove Unified School District v. Newdow, 542 U.S. 1,

35 (2004) (O’Connor, J., concurring); see also Pinette,

515 U.S. at 780 (O’Connor, J., concurring). The

Constitution would “betray its own principles” if it

“guarantee[d] citizens a right entirely to avoid ideas

with which they disagree.” Elk Grove, 542 U.S. at 44

(O’Connor, J., concurring).

This principle remains true in public education.

Undergraduate students prepare for the university, the

quintessential “marketplace of ideas.” Healy v. James,

408 U.S. 169, 180 (1972). The exclusion of all exposure

to religion—including America’s time-honored

traditions of public prayer—would create a truncated

view of the nation’s history. Students must learn to

endure speech that is offensive or even false as “part of

learning how to live in a pluralistic society, a society

which insists upon open discourse towards the end of a

tolerant citizenry.” Lee, 505 U.S. at 590. Indeed, public

school students attending required classes are exposed

to “ideas they find distasteful or immoral or absurd or

all of these.” Id. at 591.

14

B. Respect for the religious practices of

others is a fundamental civic virtue that

public schools can and should cultivate.

Public education plays a critical role in preparing

young minds to exercise their own constitutional rights

and respect the rights of others. As students learn how

to implement First Amendment principles,

“maintaining respect for the religious observances of

others is a fundamental civic virtue that government

(including the public schools) can and should cultivate.”

Lee, 505 U.S. at 638 (Scalia, J., dissenting). Indeed, an

absolute ban on references to religion misrepresents

American history, truncates the education provided to

students, and “corrodes the civic virtues that underlie

the First Amendment.” Kennedy IV, 4 F.4th at 936

(O’Scannlain, J., dissenting from denial of rehearing en

banc). Confining private prayer “to an empty office, or

perhaps to the teacher’s lounge, is an insult to the First

Amendment, which ‘extends to private as well as public

expression.’” Id., quoting Givhan v. W. Line Consol.

Sch. Dist., 439 U.S. 410, 415 n.4 (1979) (emphasis

added).

Teachers are asked “to foster those habits of openmindedness and critical inquiry which alone make for

responsible citizens . . . . They cannot carry out their

noble task if the conditions for the practice of a

responsible and critical mind are denied to them.”

Kennedy IV, 4 F.4th at 936 (O’Scannlain, J., dissenting

from denial of rehearing en banc), quoting Wieman v.

Updegraff, 344 U.S. 183, 196 (1952) (Frankfurter, J.,

concurring). Public schools have a role in “educat[ing]

youth in the values of a democratic, pluralistic society.”

15

Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d

369, 378 (6th Cir. 1999); id. at 377 (“public schools are

particularly important to the maintenance of a

democratic, pluralistic society”). Rigorous protection of

constitutional liberties is essential to preparing young

persons for citizenship, so that we do not “strangle the

free mind at its source and teach youth to discount

important principles of our government as mere

platitudes.” W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 637 (1943).

One of the earliest public-school cases rejected an

Establishment Clause challenge to a program allowing

students to be released for off-campus religious

exercises, explaining that “[w]e are a religious people

whose institutions presuppose a Supreme Being.”

Zorach v. Clauson, 343 U.S. 306, 313 (1952). Even—or

perhaps especially—in public education, courts must

balance the government’s obligation to neither “press

religious observances upon [its] [students] . . . nor

evince a hostility to religion by disabling the

government from in some ways recognizing our

religious heritage.” Van Orden, 545 U.S. at 683-684.

“The vigilant protection of constitutional freedoms is

nowhere more vital than in the community of American

schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960).

That “community” includes both students and faculty.

Kennedy’s prayer briefly exposes students to religion

but compels no one to do anything.

The First Amendment facilitates the free flow of

information and ideas. “The Nation’s future depends

upon leaders trained through wide exposure” to a

“robust exchange of ideas” that “discovers truth out of

16

a multitude of tongues” rather than “authoritative

selection.” Keyishian, 385 U.S. at 603. The government

may not “contract the spectrum of available

knowledge.” Bd. of Educ., Island Trees Union Free Sch.

Dist. v. Pico, 457 U.S. 853, 866 (1982), quoting

Griswold v. Connecticut, 381 U.S. 479, 482 (1965). This

is particularly true in education, where students are

exposed to a broad range of subjects. Public schools are

not “enclaves of totalitarianism” and “students may not

be regarded as closed-circuit recipients of only that

which the State chooses to communicate.” Pico, 457

U.S. at 877 (Blackmun, J., concurring), quoting Tinker,

393 U.S. at 511. Bremerton’s approach offends both

Religion Clauses by creating an educational vacuum

that effectively “establishes” atheism by default, as if

America’s religious history did not exist. Such exclusion

“would require that we ignore much of our own history

and that of the world in general.” Johnson v. Poway

Unified Sch. Dist., 658 F.3d 954, 971 (9th Cir. 2011).

Moreover, “[h]igh school students are mature

enough . . . to understand that a school does not

endorse or support student [or other] speech that it

merely permits on a nondiscriminatory basis.” Mergens,

496 U.S. at 250 (1990).

Even one of the Ninth Circuit judges admitted that

schools should “teach [students] about the first

amendment, about the difference between private and

public action, [and] about why we tolerate divergent

views.” Kennedy I, 869 F.3d at 837 n. 5 (Smith, J.,

concurring). Schools can best accomplish that task by

declining to censor the private religious speech of a

teacher.

17

C. Coercion

is

required

for

Establishment Clause violation.

an

This case demonstrates the very opposite of

coercion. Kennedy “made sure players knew that they

did not need to join in.” Kennedy IV, 4 F.4th at 948

(Nelson, J., dissenting from denial of rehearing en

banc). When student players asked to join him,

Kennedy answered:

“This is a free country[.] . . . You can do what

you want.”

Id., quoting Kennedy III, 991 F.3d at 1010; see also

Kennedy I, 869 F.3d at 816.

The Constitution does not “impose a prohibition on

all religious activity in our public schools.” Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000)

(collecting cases). It is only “when the State

affirmatively sponsors the particular religious practice

of prayer” that “the religious liberty protected by the

Constitution is abridged.” Id. A constitutional violation

requires “that the government itself has advanced

religion through its own activities and influence.”

Corporation of the Presiding Bishop v. Amos, 483 U.S.

327, 337 (1987). This Court has “proscribed

government-sponsored prayer in public schools”

because the “risk of coercion on students” is at its

zenith in that environment. Am. Legion, 139 S. Ct. at

2093 (Kavanaugh, J., concurring). Here, there is

nothing “official” and no hint of coercion. Bremerton

has neither “affirmatively sponsor[ed]” Kennedy’s

prayers nor coerced anyone to participate.

18

The “hallmark of historical establishments . . . was

coercion of religious orthodoxy and of financial support

by force of law and threat of penalty.” Van Orden, 545

U.S. at 693 (Thomas, J., concurring), citing Lee v.

Weisman, 505 U.S. at 640 (Scalia, J., dissenting); see

also Am. Legion, 139 S. Ct. at 2095-2096 (Thomas, J.,

concurring). Kennedy’s prayer “bears no resemblance

to the kinds of institutional entanglements with

religion” likely to trigger an Establishment Clause

violation. Kennedy IV, 4 F.4th at 940 (O’Scannlain, J.,

dissenting from denial of rehearing en banc).

Earlier cases in this Court demonstrate the nature

of coercion. The New York school district in Engel v.

Vitale required students to “recite a prescribed nondenominational prayer at the beginning of each school

day.” 370 U.S. 421, 436 (1962). This Court explained

that “it is no part of the business of government to

compose official prayers for any group of the American

people to recite as a part of a religious program carried

on by government.” Id. at 425. Similarly, in Sch. Dist.

of Abington Twp., Pa. v. Schempp, the state “required

a religious exercise” in public schools. 374 U.S. 203,

225-26 (1963). These cases hinge on “whether a school’s

practices coerce students into religious practices or

beliefs” by “sponsor[ing] religion or leverage[ing]

mandatory attendance requirements.” Kennedy IV, 4

F.4th at 947-948 (Nelson, J., dissenting from denial of

rehearing en banc). Here, the School District admitted

there was “no evidence” that students were “directly

coerced to pray with Kennedy.” Kennedy I, 869 F.3d at

820.

19

The Ninth Circuit attempted to find “coercion”

because one student “feared he would get less playing

time if he did not participate” in Kennedy’s prayers.

Kennedy IV, 991 F.3d at 2021 (Christen, J., concurring

in denial of rehearing en banc). But even this “subtle

coercive pressure,” similar to the graduation ceremony

in Lee (505 U.S. at 592) is hardly equivalent to the

legal coercion in Engel v. Vitale, Sch. Dist. of Abington

Twp., or in Barnette, where students were required by

law to recite the Pledge of Allegiance or face draconian

penalties such as expulsion or the prosecution of their

parents for causing delinquency. Barnette, 319 U.S. at

629-630.

D. Student observation of prayer is not

tantamount to coercion.

Even without coercion, the School District and the

Ninth Circuit are apoplectic over the possibility that

Kennedy might be seen by students when he prays, as

if prayer were a shameful act to be hidden in darkness.

Kennedy was informed that his prayer must be

“physically separate from student activity,” “in a

private location,” not “outwardly discernible as

religious activity” (kneeling or speaking aloud), not

“readily observable” by students or the public. Kennedy

IV, 4 F.4th at 931-932 (9th Cir. 2021) (O’Scannlain, J.,

dissenting from denial of rehearing en banc); Kennedy

III, 991 F.3d at 1011-13.

Nothing could be more offensive to American history

and practice than these sweeping pronouncements.

Such an interpretation would condemn even teachers

who, “within the eyesight of students,” are observed

“folding their hands or bowing their heads” to give

20

thanks before a meal. Kennedy II, 139 S. Ct. at 636

(Alito, J., concurring). One concurring Ninth Circuit

judge acknowledged there is no case law holding that

“a high school teacher must be out of sight of students

or jump into the nearest broom closet” to say a private

prayer, and an on-duty teacher who briefly prays before

her meal “would not risk sending a message that [the

School District] endorses her faith.” Kennedy III, 991

F.3d at 1052 (Christen, J., concurring). But in the same

breath, “this football coach’s prayer at the fifty-yard

line, immediately after a game, under stadium lights

and in front of players and spectators, objectively sent

a public message.” Id. The court scrambles its own

message.

The Ninth Circuit veers away from “the

constitutional right Kennedy actually asserted—and

the District actually denied.” Kennedy IV, 4 F.4th at

930 (O’Scannlain, J., dissenting from denial of

rehearing en banc). That right is stated up front in the

first of two questions presented to this Court:

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.

Rather than “attempting to pinpoint” the

constitutionally relevant facts, “the Ninth Circuit

recounted all of petitioner’s prayer-related activities

over the course of several years.” Kennedy II, 139 S. Ct.

at 636 (Alito, J., concurring). See, e.g., Kennedy I, 869

F.3d at 825 (“the relevant ‘speech at issue’

involves kneeling and praying on the fifty-yard line

21

immediately after games while in view of students and

parents”); Kennedy III, 991 F.3d at 1015 (“Kennedy

insisted that his speech occur while players stood next

to him, fans watched from the stands, and he stood at

the center of the football field.”). The court denied that

its first opinion suggested “a teacher bowing her head

in silent prayer before a meal in the school cafeteria

would constitute speech as a government employee” (id.

1015) but offered no credible rationale to distinguish

that prayer from Kennedy’s practice, other than his

mere visibility to students and the publicity generated

during the course of litigation.

One judge went so far as to pronounce a theological

judgment that Kennedy’s “staged public prayers . . .

clearly flout the instructions found in the Sermon on

the Mount on the appropriate way to pray.” Kennedy

IV, 4 F.4th at 926 (Smith, J., concurring in denial of

rehearing en banc). This remark smacks of hostility

and defies the benevolent neutrality required of

government.

III.

THE NINTH CIRCUIT PITS THE

ESTABLISHMENT CLAUSE AGAINST THE

FREE EXERCISE CLAUSE, CREATING

TENSION WHERE NONE EXISTS.

The line between religion and government tends to

be “a blurred, indistinct, and variable barrier

depending on all the circumstances of a particular

relationship.” Lemon v. Kurzman, 403 U.S. 602, 614

(1974); Zorach, 343 U.S. at 312. Drawing that line is a

particularly thorny task where a single individual is

both a government representative and a private citizen.

But the difficulties should not be exaggerated.

22

American history is replete with official

acknowledgements of religion and even proclamations

calling on citizens to pray.

The Ninth Circuit fails to “distinguish between real

threat and mere shadow.” Am. Legion, 139 S. Ct. at

2091 (Breyer, J., concurring); Van Orden, 545 U. S. at

704 (Breyer, J., opinion concurring in judgment)

(quoting School Dist. of Abington Township v.

Schempp, 374 U. S. at 308 (Goldberg, J., concurring)).

It “leaps beyond the Establishment Clause’s original

meaning to the detriment of free exercise rights.”

Kennedy IV, 4 F.4th at 949 (Nelson, J., dissenting from

denial of rehearing en banc).

Both Religion Clauses “secure religious liberty.”

Engel v. Vitale, 370 U.S. at 430. The Establishment

Clause was not designed to “purge religion from the

public square.” Kennedy IV, 4 F.4th at 953 (Nelson, J.,

dissenting from denial of rehearing en banc) (emphasis

added). “Historical practice shows that allowing

religion in the public square was never understood to

be an establishment.” Id. at 950; see 3 Joseph Story,

Commentaries on the Constitution of the United States

§ 405 (1833). This Court must preserve benevolent

neutrality, avoid “callous indifference” (Zorach, 343

U.S. at 314), and ensure the Establishment Clause is

not used as a destructive force against religion.

23

A. The Establishment Clause does not

justify a government employer’s denial

of an employee’s First Amendment

freedoms.

The Ninth Circuit makes the “indefensible”

assumption that “allowing Kennedy to pray[] on the

fifty-yard line immediately following the game in full

view of students and spectators would constitute an

Establishment Clause violation.” Kennedy IV, 4 F.4th

at 954 (Collins, J., dissenting from denial of rehearing

en banc), citing Kennedy III, 991 F.3d at 1022

(emphasis added) (cleaned up). The School District, in

defense of its suppression of Kennedy’s speech and free

exercise rights, alleges it has a “compelling state

interest to avoid violating the Establishment Clause.”

Id. at 1020. That interest allegedly “trumps [a

teacher’s] right to free speech.” Id. at 1016-17, quoting

Peloza, 37 F.3d at 522. This rationale is claimed to be

“adequate justification for treating [Kennedy]

differently from any other member of the public.” Lane,

573 U.S. at 242, quoting Garcetti, 547 U.S. at 418. The

Ninth Circuit supports its reasoning by citing two cases

in which this Court rejected a school’s Establishment

Clause defense, even under the much-criticized Lemon

test: Good News Club v. Milford Cent. Sch., 533 U.S.

98, 113 (2001) (“we conclude the school has no valid

Establishment Clause interest”); Widmar v. Vincent,

454 U.S. 263, 276 (1981) (“we are unable to recognize

the State’s interest as sufficiently ‘compelling’ to justify

content-based discrimination against respondents’

religious speech”).

24

The Ninth Circuit’s contention “that the

Constitution not only permitted, but required, the

District to punish Kennedy’s private prayer . . .

subverts the entire thrust of the Establishment Clause,

transforming a shield for individual religious liberty

into a sword for governments to defeat individuals’

claims to Free Exercise.” Kennedy IV, 4 F.4th at 938

(O’Scannlain, J., dissenting from denial of rehearing en

banc). This turns the First Amendment upside down.

B. The First Amendment guarantees

heightened protection for religion, not

“irreligion.”

The Ninth Circuit falls prey to the mistaken notion

that the Establishment Clause mandates not only

government neutrality between one religion and

another, but also “between religion and nonreligion.”

Kennedy III, 991 F.3d at 1017, citing McCreary County

v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v.

Arkansas, 393 U.S. 97, 104 (1968)). The First

Amendment rejects this counterfeit “neutrality”—it

respects all views but grants heightened protection for

religion.

The Religion Clauses were “written by the

descendants of people who had come to this land

precisely so that they could practice their religion

freely.” McCreary, 545 U.S. at 881. Both Clauses were

designed to prevent an established national church like

the Church of England, controlled and funded by

government, and to prohibit governmental preference

for any one Christian sect. Terrett v. Taylor, 13 U.S. (9

Cranch) 43, 49 (1815). In the “crucible of litigation,”

modern courts have acknowledged “the right to select

25

any religious faith or none at all.” Wallace v. Jaffree,

472 U.S. 38, 52-53 (1985). But this Court has distanced

itself from placing “irreligion” on a par with religion.

“Despite Justice Stevens’ recitation of occasional

language to the contrary . . . we have not, and do not,

adhere to the principle that the Establishment Clause

bars any and all governmental preference for religion

over irreligion.” Van Orden, 545 U.S. at 684 n. 3.

Justice Scalia’s McCreary dissent foreshadows this

pronouncement. “With all of this reality (and much

more) staring it in the face, how can the Court possibly

assert that ‘the First Amendment mandates

governmental neutrality between . . . religion and

nonreligion . . . . ‘ Who says so? Surely not the words

of the Constitution. Surely not the history and

traditions that reflect our society’s constant

understanding of those words.” McCreary, 545 U.S. at

889 (Scalia, J., dissenting) (citing majority opinion, id.

at 875-876).

C. This case lacks the state action required

for an Establishment Clause violation.

Kennedy’s private religious speech is not state

action and consequently does not transgress the

Establishment Clause, “which announces a constraint

on the State, rather than non-state actors.” Kennedy IV,

4 F.4th at 940 (O’Scannlain, J., dissenting from denial

of rehearing en banc). “[T]he First Amendment

constrains governmental actors and protects private

actors.” Manhattan Cmty. Access Corp. v. Halleck, 139

S. Ct. 1921, 1926 (2019) (emphasis added). Bremerton

“backed itself into the corner” by admitting that the

District targeted Kennedy’s prayer “because the

26

conduct is religious.” Kennedy IV, 4 F.4th at 939

(O’Scannlain, J., dissenting from denial of rehearing en

banc), quoting Kennedy III, 991 F.3d at 1020 (emphasis

in original). Such intentional targeting is the epitome

of a Free Exercise violation.

Decades ago, this Court described the

Establishment Clause as “forestal[ling] compulsion by

law of the acceptance of any creed or the practice of any

form of worship.” Cantwell v. Connecticut, 310 U.S.

296, 303 (1940). Nothing in this case remotely fits this

description. Kennedy’s prayer, like other private

religious speech on public school property, “does not

constitute state action” and therefore does not violate

the Establishment Clause. Kennedy IV, 4 F.4th at 940

(O’Scannlain, J., dissenting from denial of rehearing en

banc) (collecting cases).

D. No reasonable observer would attribute

Kennedy’s prayer to the School District.

The School District reverted to an “objective

observer” analysis “because someone might mistakenly

attribute Kennedy’s prayer to the District.” Kennedy

IV, 4 F.4th at 941 (O’Scannlain, J., dissenting from

denial of rehearing en banc). The Ninth Circuit

reasoned that “an objective student observer” would see

Kennedy “perform a distinctively Christian religious

act on a secured portion of school property while

supervising students”—”something no ordinary citizen

could do.” Kennedy I, 869 F.3d at 836 (Smith, J.,

specially concurring). After this Court remanded the

case, the Ninth Circuit doubled down and

manufactured a “mandate” to silence Kennedy, based

on the possible misperception of endorsement. See

27

Kennedy III, 991 F.3d at 1016-19; Kennedy IV, 4 F.4th

at 929 (Christen, J., concurring in denial of rehearing

en banc) (“Had BSD abandoned its opposition to Coach

Kennedy’s on-field prayers after his multiple

interviews with local and national media, an objective

observer would have perceived that BSD endorsed his

speech.”)

The School District relied heavily on Santa Fe in

applying the “objective observer” test to Kennedy’s

“pugilistic efforts to generate publicity in order to gain

approval of [his] on-field religious activities.” Kennedy

III, 991 F.3d at 1017. This test stems from the purpose

and effect prongs of the now-discredited Lemon test,

“an ahistorical, atextual, and failed attempt to define

Establishment Clause violations.” Kennedy IV, 4 F.4th

at 945 (Nelson, J., dissenting from denial of rehearing

en banc). Santa Fe was built on the flawed Lemon

foundation. 530 U.S. at 319 (Rehnquist, C.J.,

dissenting) (the majority relied on “the most rigid

version of the oft-criticized test of Lemon” which “has

had a checkered career in the decisional law of this

Court.”) But this Court “no longer applies the old test

articulated in Lemon.” Am. Legion, 139 S. Ct. at 2092

(Kavanaugh, J., concurring). It seems the multitude of

exceptions have finally swallowed the Lemon rule. A

majority of this Court’s Justices have “personally

driven pencils through the creature’s heart.” Kennedy

IV, 4 F.4th at 946-947 (Nelson, J., dissenting from

denial of rehearing en banc), quoting Lamb’s Chapel v.

Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398

(1993) (Scalia, J., concurring in the judgment).

28

Only a flight from reason would justify attributing

Kennedy’s prayer to the School District. The District

had zero involvement in the prayers apart from its

efforts at suppression. Only by ignoring that censorship

could anyone think (though mistakenly) that the

District endorsed Kennedy’s speech. “But the mere

possibility of such a mistake does not turn private

speech into endorsement.” Kennedy IV, 4 F.4th at 942

(O’Scannlain, J., dissenting from denial of rehearing en

banc). “There is always someone who, with a particular

quantum of knowledge, reasonably might perceive a

particular action as an endorsement of religion.”

Pinette, 515 U.S. at 780. Justice O’Connor, the architect

of the “endorsement” test, quoted this passage and

added that “[n]early any government action could be

overturned as a violation of the Establishment Clause

if a heckler’s veto sufficed to show that its message was

one of endorsement.” Elk Grove, 542 U.S. at 35

(O’Connor, J., concurring). The endorsement test is

qualified: The “reasonable observer” evaluates

endorsement through the lens of “history and

ubiquity.” County of Allegheny v. ACLU, 492 U.S. 573,

630 (1989) (O’Connor, concurring).

Any person aware of America’s religious heritage

generally (Sect. IV) or in public education specifically

(Sect. II) would understand that Kennedy prayed solely

as a private citizen exercising his First Amendment

rights. “The proposition that schools do not endorse

everything they fail to censor is not complicated.”

Kennedy IV, 4 F.4th at 941 (O’Scannlain, J., dissenting

from denial of rehearing en banc), quoting Mergens,

496 U.S. at 250 (plurality op.). Even a “modern-day

observer—infused with today’s more recent

29

separationist mentality” (Kennedy IV, 4 F.4th at 953

(Nelson, J., dissenting from denial of rehearing en

banc)) has no basis to characterize Kennedy’s obviously

private prayer as government speech. Unlike Santa Fe,

the prayer is not connected to an official school policy

or broadcast as part of a school event. Cf. Santa Fe, 530

U.S. at 307 (“delivered to a large audience assembled

as part of a regularly scheduled, school-sponsored

function conducted on school property”).

The “offended observer” theory is even further off

base constitutionally. There is no parent or student

alleging “the government coerced his or her

participation in a state-sponsored prayer service.”

Kennedy IV, 4 F.4th at 930 (O’Scannlain, J., dissenting

from denial of rehearing en banc). As Justice Gorsuch

emphasized in Am. Legion, this “theory of standing has

no basis in law,” as it fails to articulate a “concrete and

particularized” injury. 139 S. Ct. at 2098 (Gorsuch, J.,

concurring). “The presence of a disagreement, however

sharp and acrimonious it may be, is insufficient by

itself to meet Art. III’s requirements.” Id., quoting

Diamond v. Charles, 476 U.S. 54, 62 (1986).

IV.

COACH KENNEDY’S RIGHT TO PRAY

MUST

BE

AFFIRMED

WHEN

CONSIDERED AGAINST THE BACKDROP

OF AMERICAN HISTORY.

Religion is woven into the fabric of American law,

history, and life—both public and private. American

government is inescapably linked to religion: “Our

constitution was made only for a moral and religious

people. It is wholly inadequate to the government of

any other.” Letter (Oct. 11, 1798), reprinted in 9 Works

30

of John Adams 229 (C. Adams ed. 1971). History

abounds with examples of public prayer:

• When George Washington swore his oath of

office on a Bible and gave his inaugural address,

he said: “It would be peculiarly improper to omit

in this first official act my fervent supplications

to that Almighty Being who rules over the

universe . . . .” Inaugural Addresses of the

Presidents of the United States, S. Doc. 101-10,

p. 2 (1989).

• Both Houses of Congress passed resolutions in

1789 asking President George Washington to

issue a Thanksgiving Day Proclamation to

“recommend to the people of the United States a

day of public thanksgiving and prayer. . . .” 1

Annals of Cong. 90, 914 (internal quotation

marks omitted). Van Orden v. Perry, 545 U.S. at

686; see also Presidential Proclamation, 1

Messages and Papers of the Presidents, 17891897, p. 64 (J. Richardson ed. 1897). This

tradition of Thanksgiving Proclamations—with

their religious theme of prayerful gratitude to

God—has been adhered to by almost every

President.

• President Lincoln designated April 30, 1863, as

a National Day of Prayer and Humiliation. See

McCreary County, 545 U.S. at 910 n. 13 (Scalia,

J., dissenting).

• In 1998, Congress designated the last Monday in

May as Memorial Day, requesting a Presidential

Proclamation “calling on the people of the

31

United States to observe [the day] by praying,

according to their individual religious faith, for

permanent peace.” 36 U.S.C. § 116(b)(1).

American history is “replete with official references

to the value and invocation of Divine guidance in

deliberations and pronouncements of the Founding

Fathers.” Lynch, 465 U.S. at 675. The legislative prayer

upheld in Marsh v. Chambers, 463 U.S. 783 (1983) was

rooted “in the events of the first week of the First

Session of the First Congress in 1789,” when Congress

provided for paid Chaplains in both houses. Lynch, 465

U.S. at 674. “It would be difficult to identify a more

striking example of the accommodation of religious

belief intended by the Framers.” Id. All three branches

of government consistently acknowledge the role of

religion in America. Id. Various official

pronouncements, including Christmas and

Thanksgiving holidays, have been expressed in

religious terms (id. at 676), and “[t]here are countless

other illustrations of the Government’s

acknowledgment of our religious heritage and

governmental sponsorship of graphic manifestations of

that heritage . . . .” Id. at 677. Such acknowledgment

“follows the best of our traditions” and “respects the

religious nature of our people.” Zorach, 343 U.S. at 314.

The Ninth Circuit discounts all this history and its

opinion “bristles with hostility to all things religious in

public life.” Santa Fe, 530 U.S. at 318 (Rehnquist, C.J.,

dissenting). Historically, religion is closely linked to

public education. “In our nation’s early days, clergy

oversaw education and often intermixed religious

training.” Kennedy IV, 4 F.4th at 950 (Nelson, J.,

32

dissenting from denial of rehearing en banc), citing

Joseph P. Viteritti, Blaine’s Wake: School Choice, the

First Amendment, and State Constitutional Law, 21

Harv. J. L. & Pub. Pol’y 657, 663 (1998); see also Alexis

de Tocqueville, 1 Democracy in America 314 n.f (2d ed.

1900) (“Almost all education is entrusted to the

clergy.”).

In view of this extensive historical background, it is

no wonder this Court has returned to a historical test

to interpret the Establishment Clause. Although

“prayer is by definition religious” (Am. Legion, 139 S.

Ct. at 2087), this Court discarded Lemon in favor of a

historical approach to legislative prayer in Marsh v.

Chambers and Town of Greece v. Galloway, 572 U.S.

565 (2014). The plurality in Van Orden analyzed a

monument in view of “our Nation’s history.” Van

Orden, 545 U.S. at 686. “This history-based test is not

a way to approach Establishment Clause cases, see Am.

Legion, 139 S. Ct. at 2092 (Kavanaugh, J.,

concurring)—it should be the way.” Kennedy IV, 4 F.4th

at 950 (Nelson, J., dissenting from denial of rehearing

en banc). There is ample support for a history-based

test in the context of public education, but “[t]he [Ninth

Circuit] panel missed that cue” and instead applied “an

ahistorical and expansive view of the Establishment

Clause.” Id. at 946. The “unmistakable” message of Am.

Legion is that “Town of Greece, not Lemon” is the

appropriate test—not because of the antiquity of a

practice but rather “its compliance with ageless

principles.” 139 S. Ct. at 2102 (Gorsuch, J., concurring).

The right to individual, private prayer complies

with “ageless principles.” America’s Founders

33

recognized religion as both a human right and “a duty

towards the Creator.” Wallace v. Jaffree, 472 U.S. at 54

n. 38, citing James Madison’s “Memorial and

Remonstrance Against Religious Assessments”

(emphasis added). If these rights are severed from their

roots, they will wither and die. They will no longer be

inalienable but will hang by the thread of human

whim. No one will be free—not even those who demand

a rigid “separation of church and state.”

CONCLUSION

This court should reverse the decision of the Ninth

Circuit.

Respectfully submitted,

TAMI FITZGERALD

THE INSTITUTE FOR FAITH

AND FAMILY

9650 Strickland Road

Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

JAMES L. HIRSEN

Counsel of Record

505 S. Villa Real Drive

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

DEBORAH J. DEWART

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amici Curiae