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

No. 21-418

In the Supreme Court of the United States

__________

JOSEPH A. KENNEDY, PETITIONER

v.

BREMERTON SCHOOL DISTRICT, RESPONDENT

_________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

____________

BRIEF FOR KIRK COUSINS, JOE DELAMIELLEURE, NICK FOLES, PHIL OLSEN, CHRISTIAN

PONDER, DREW STANTON, HARRY SWAYNE,

AND JACK YOUNGBLOOD AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________

MICHAEL MCCONNELL

Wilson Sonsini

Goodrich & Rosati, P.C.

650 Page Mill Rd

Palo Alto, CA 94306

(650) 493-9300

JOHN J. BURSCH

DAVID A. CORTMAN

TYSON C. LANGHOFER

Alliance Defending Freedom

440 First Street, NW

Washington, DC 20001

(616) 450-4235

STEFFEN N. JOHNSON

Counsel of Record

PAUL N. HAROLD

JOHN B. KENNEY

G. EDWARD POWELL III

KELSEY J. CURTIS

Wilson Sonsini

Goodrich & Rosati, P.C.

1700 K Street, N.W.

Washington, DC 20006

(202) 973-8800

sjohnson@wsgr.com

Counsel for Amici Curiae

i

QUESTIONS PRESENTED

Whether a public high school football coach’s practice of offering a personal prayer at midfield after

time expires is “government speech” for purposes of

the Free Speech and Establishment Clauses of the

First Amendment.

ii

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

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

STATEMENT............................................................... 5

ARGUMENT ................................................................ 7

I.

The distinction between state and private

action plays a critical role in protecting free

speech and is utterly indispensable to

protecting religious liberty.................................... 7

II. Whether prayer is attributable to the state

should be determined by applying the same

legal standards that govern whether secular

speech is attributable to the state. ..................... 10

A. Whether the speech of invited guests at

school-sponsored events is private turns

on whether they are chosen for secular

and neutral reasons and retain primary

control over the content of their speech. ...... 11

B. Whether the speech of public employees

at state-sponsored events is attributable

to the state turns on whether the speech

itself is part of their job duties. .................... 17

C. The misperception of endorsement of

religion cannot convert state inaction

into state action. ........................................... 21

iii

III. Coach Kennedy’s post-game prayers were

private speech and thus cannot violate the

Establishment Clause. ........................................ 24

A. Kennedy’s prayers were not attributable

to Bremerton School District. ....................... 24

B. The Ninth Circuit’s view that the

dictates of the Establishment Clause

and the Free Speech Clause conflict

confirms that the court misunderstood

the clauses’ scope. ......................................... 28

CONCLUSION .......................................................... 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Educ. v. Mergens,

496 U.S. 226 (1990) ..................... 3, 16, 21, 23, 29

Blum v. Yaretsky,

457 U.S. 991 (1982) ............................................. 7

Capitol Sq. Rev. & Advis. Bd. v. Pinette,

515 U.S. 753 (1995) ................... 10, 14, 15, 21, 30

Carey v. Brown,

447 U.S. 455 (1980) ............................................. 8

Civil Rights Cases,

109 U.S. 3 (1883) ................................................. 7

Connick v. Myers,

461 U.S. 138 (1983) ........................................... 26

Engel v. Vitale,

370 U.S. 421 (1962) ..................................... 16, 25

Eu v. San Francisco Cty. Democratic Cent.

Comm.,

489 U.S. 214 (1989) ............................................. 9

Garcetti v. Ceballos,

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

Good News Club v. Milford Centr. Sch.,

533 U.S. 98 (2001) ..................... 15, 22, 23, 28, 30

Hedges v. Wauconda Community Sch. Dist.,

9 F.3d 1295 (7th Cir. 1993) ......................... 23, 24

Hurley v. Irish-American Gay, Lesbian &

Bisexual Grp.,

515 U.S. 557 (1995) ............................................. 8

v

Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist.,

508 U.S. 384 (1993) ..................................... 15, 22

Lane v. Franks,

573 U.S. 228 (2014) ......................... 17, 18, 19, 28

Lee v. Weisman,

505 U.S. 577 (1992) ............................... 11, 12, 25

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) ..................................... 8, 9

Mitchell v. Helms,

530 U.S. 793 (2000) ........................................... 10

Peloza v. Capistrano Unified School District,

37 F.3d 517 (9th Cir. 1994) ............................... 28

Pickering v. Bd. of Ed.,

391 U.S. 563 (1968) ........................................... 18

Rankin v. McPherson,

483 U.S. 378 (1987) ........................................... 18

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ............................................. 9

Rosenberger v. Rector and Visitors of Univ.

of Va.,

515 U.S. 819 (1995) ................................... passim

Rust v. Sullivan,

500 U.S. 173 (1991) ............................................. 9

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

530 U.S. 290 (2000) ..................... 3, 10, 12, 19, 25

Shelley v. Kraemer,

334 U.S. 1 (1948) ............................................. 7, 8

Street v. New York,

394 U.S. 576 (1969) ........................................... 28

vi

Texas State Teachers Ass’n v. Garland

Indep. Sch. Dist.,

777 F.2d 1046 (5th Cir. 1985), aff’d, 479

U.S. 801 (1986) .................................................. 19

Tinker v. Des Moines Indep. Cmty. Sch.

Dist.,

393 U.S. 503 (1969) ............................................. 1

Town of Greece v. Galloway,

572 U.S. 565 (2014) ..................................... 13, 28

W. Va. State Bd. Of Ed. v. Barnette,

319 U.S. 624 (1943) ....................................... 4, 27

Widmar v. Vincent,

454 U.S. 263 (1981) ............................... 13, 14, 23

Constitutional Provisions

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

U.S. Const. amend. XIII ........................................... 7

U.S. Const. amend. XIV........................................ 7, 8

Statutes and Rules

20 U.S.C. § 7904(a) ................................................. 16

68 Fed. Reg. 9645 (Feb. 24, 2003) .......................... 16

Elementary and Secondary Education Act of

1965 Section 8524(a) ......................................... 16

Every Student Succeeds Act ................................... 16

Other Authorities

Carl H. Esbeck, The Establishment Clause

as a Structural Restraint on

Governmental Power, 84 Iowa L. Rev. 1,

83-86 (1998) ....................................................... 30

vii

Lisa R. France, Dr. Dre talks Eminem taking

a knee at Super Bowl, CNN (Feb. 17,

2022)................................................................... 27

Douglas Laycock, Religious Liberty as

Liberty, 7 J. Contemp. Legal Issues 313,

331 (1996) .......................................................... 30

Guidelines on Religious Exercise and

Religious Expression in the Federal

Workplace (Aug. 14, 1997) (“Guidelines

on Religious Exercise”) ...................................... 20

Jeremy Adam Smith & Dacher Keltner, The

Psychology of Taking a Knee, Sci. Am.

(Sept. 29, 2017) ............................................ 26, 27

Laurence H. Tribe, American Constitutional

Law (2d ed. 1988) .............................................. 30

Off. Att’y Gen., Memorandum for All

Executive Departments and Agencies:

Federal Law Protections for Religious

Liberty, 11a (Oct. 6, 2017) ........................... 20, 21

President William J. Clinton, Memorandum

on Religious Exercise and Religious

Expression in the Federal Workplace

1247 (August 14, 1997)...................................... 20

U.S. Dep’t of Educ., Guidance on

Constitutionally Protected Prayer and

Religious Expression in Public

Elementary and Secondary Schools, 85

Fed. Reg. 3257, 3265 (Jan. 21, 2020) ................ 16

1

INTERESTS OF AMICI CURIAE*

Amici curiae are current or former players in the

National Football League who support robust protection for the First Amendment rights of both coaches

and student athletes at public high schools and universities across the Nation. Each amicus attended

and played football for at least one public high school

or university before turning pro.

Each amicus also voluntarily exercised his constitutional right to pray before, during, and after games

in which he competed on behalf of such schools—at

times alone, at times with other players, and at times

with coaches. Each amicus thus has firsthand experience with the environment in which this case arose.

And each amicus can testify firsthand to the power of

prayer—in generating gratitude for the opportunity

to play, promoting high ideals of sportsmanship, protecting the safety of those who take the field, bridging

personal, political, and racial divides among players,

and ultimately in glorifying God.

For all these reasons, amici support protection for

the free speech rights of public school coaches like Joe

Kennedy. This Court should reverse the Ninth Circuit’s decision, which flouts the rule that “[n]either

students [n]or 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).

* Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole

or in part, and that no entity or person other than amici

curiae and their counsel made any monetary contribution

toward the brief’s preparation or submission. Counsel for

the parties have consented to the filing of this brief.

2

Kirk Cousins is a quarterback for the Minnesota

Vikings and former quarterback for Washington.

Joe DeLamielleure is a former offensive guard

for the Buffalo Bills and Cleveland Browns, and a

member of the Pro Football Hall of Fame.

Nick Foles is a quarterback for the Chicago Bears

and former quarterback for the Philadelphia Eagles,

St. Louis Rams, Kansas City Chiefs, and Jacksonville

Jaguars. He led the Philadelphia Eagles to victory in

Super Bowl LII and was named Super Bowl MVP.

Phil Olsen is a former center and defensive tackle for the Los Angeles Rams, Denver Broncos, and

Buffalo Bills.

Christian Ponder is a former quarterback for

the Minnesota Vikings, Denver Broncos, and San

Francisco 49ers.

Drew Stanton is a former quarterback for the

Detroit Lions, Indianapolis Colts, Arizona Cardinals,

Cleveland Browns, and Tampa Bay Buccaneers.

Harry Swayne is a former offensive tackle for the

Tampa Bay Buccaneers, San Diego Chargers, Denver

Broncos, Baltimore Ravens, and Miami Dolphins.

Jack Youngblood is a former defensive end for

the Los Angeles Rams and a member of the Pro Football Hall of Fame.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents a vital First Amendment question: When is the speech of a public employee at a

state-sponsored event fairly attributable to the state?

The answer to this question is critical to a coherent

theory of the Religion Clauses. An overly broad view

of government speech would extend the prohibitions

of the Establishment Clause to private speakers—

thus eliminating private religious voices from public

life. An overly broad view of private speech would

nullify Establishment Clause restraints on the power

of the government—thus permitting the state to organize or lead religious activity. That is why “[the]

difference between government speech endorsing religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free

Speech and Free Exercise Clauses protect,” is “crucial.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,

302 (2000) (quoting Bd. of Educ. v. Mergens, 496 U.S.

226, 250 (1990)).

The Ninth Circuit’s opinion in this case illustrates

the danger of an undisciplined approach to drawing

the line between government and private speech. Ignoring that “schools do not endorse everything they

fail to censor” (Mergens, 496 U.S. at 250), the court

below reasoned that Coach Kennedy’s personal, onfield prayers were not his own, but the government’s

—and worse, that even if the prayers were his own,

the risk of misattribution to the state compelled their

censorship. But Coach Kennedy’s prayers were not a

part of his official job responsibilities; and if he had

engaged in comparable secular speech, no one would

have thought of attributing it to the state.

4

Imagine, for example, if Coach Kennedy had “taken the knee” not to pray after the game, but to protest

racial injustice beforehand—during the National Anthem—while others stood at attention saluting the

flag, with hats off and their hands over their hearts.

That practice, like Kennedy’s prayers, is controversial

—courageous to some and offensive to others. But if

Joe Kennedy had taken a knee to protest racial injustice, the District almost certainly would not have argued that his speech was somehow the state’s. Rather, there would have been no question that it was

protected private speech. And as Justice Jackson put

it for the Court in West Virginia State Board of Education v. Barnette, “a bended knee” can “convey political ideas” or “theological ones.” 319 U.S. 624, 632

(1943). “[O]ne man’s comfort and inspiration is another’s jest and scorn,” but the First Amendment protects both—whether seen as “good, bad or merely innocuous” by the state or the public. Id. at 633.

We file this brief to provide a general framework

for discerning the line between government and private speech, and to urge the Court to confirm that the

rules that govern whether secular speech is attributable to the state likewise govern whether religious

speech is attributable to the state. The Free Speech

and Free Exercise Clauses do not conflict with the

Establishment Clause. Under a proper understanding of state action, there is no question that Coach

Kennedy’s prayers fall on the private side of the public-private line. Accordingly, those prayers are protected, not prohibited, by the First Amendment. The

Ninth Circuit’s judgment should be reversed.

5

STATEMENT

After serving nearly 20 years in the Marines, Joseph Kennedy spent eight years as an assistant football coach at Bremerton High School. From the start

of his tenure, he knelt at midfield after every game,

offering a brief, private prayer of gratitude to God.

Other coaches were likewise free to use this time

for personal reasons, such as texting or calling others

or entering the stands to greet spouses or friends—all

before the players left the field. ECF 71-7 at 4-6;

ECF 71-9 at 14-15. Another coach even, in his words,

“took [his] own personal few moments” to do a Buddhist chant. ECF 64-23 at 3; E.R.114, 295, 374-375.

Amici can attest that, in similar athletic contexts,

coaches and players often make public statements

about their personal beliefs on matters of politics or

public issues, or take the knee during the National

Anthem, on the field and in full view of the crowd.

Well after Coach Kennedy began this practice,

several players asked if they could join him. He responded that it was a “free country” and they could

“do what [they] want[ed].” Pet. App. 4. Over time, as

more players joined him in prayer, Kennedy sometimes gave motivational remarks with faith-related

themes. E.R.114.

Initially, no one complained. In fact, BHS only

heard of Kennedy’s post-game prayer because another school’s coach praised the practice. E.R.134. But

BHS then “expressed disapproval” (Pet. App. 5) and

the District—while acknowledging that students participated voluntarily and that Kennedy had “not actively encouraged, or required, * * * participation”—

concluded that his post-game expression violated

school policy. E.R.299-301; Pet. App. 218.

6

The District acknowledged that Coach Kennedy’s

“religious expression was fleeting.” E.R.99. But in

its view, his brief prayer “drew [him] away from his

work” and a “reasonable observer” would view it as a

governmental “endorsement of religion.” Ibid. Ultimately, the District directed him not to engage in any

religious activity, even silent prayer, in the presence

of a student. Pet. App. 6. That meant he could not

offer a word of thanks before meals in the cafeteria.

Coach Kennedy sued, but the courts below ruled

for the District. Reasoning that he “was clothed with

the mantle of one who imparts knowledge and wisdom,” and that “expression was [his] stock in trade,”

the Ninth Circuit held that he “spoke as a public employee when he kneeled and prayed on the fifty-yard

line immediately after games while in view of students and parents.” Pet. App. 14, 16-17. Indeed, the

court concluded that even if Kennedy “spoke as a private citizen,” the District did not abridge his freedom

of speech because “an objective observer, familiar

with the history of Kennedy’s on-field religious activity” “could reach no other conclusion than that [the

district] endorsed Kennedy’s religious activity by not

stopping the practice.” Id. at 17-19, 21.

The Ninth Circuit did not explain why, in the case

of a conflict between the Free Speech Clause and the

Establishment Clause, the latter should prevail. It

simply reaffirmed its prior holdings that “[a] school

district’s interest in avoiding an Establishment

Clause violation trumps [a teacher’s] right to free

speech.” Id. at 17 (citation omitted). Over the dissent of eleven judges in four separate opinions, the

Ninth Circuit denied rehearing en banc. Id. at 77129. In response, the panel opinion’s author thought

himself free to judge Coach Kennedy’s prayer against

7

biblical standards, calling it “more than a little ironic

that [his] ‘everyone watch me pray’” prayers “so clearly flout[ed] the instructions found in the Sermon on

the Mount on the appropriate way to pray.” Id. at 69.

ARGUMENT

I. The distinction between state and private

action plays a critical role in protecting free

speech and is utterly indispensable to protecting religious liberty.

The line between governmental and private activity is foundational to our constitutional order. With

limited exceptions, the Constitution is designed to

limit the actions of the government, not private citizens.1 The very language of the Fourteenth Amendment—“No State shall * * * deprive any person of life,

liberty, or property, without due process of law”—by

which the First Amendment is made applicable to the

States, bespeaks its application to the government.

And this Court has always maintained, ever since the

issue first arose in the Civil Rights Cases, 109 U.S. 3

(1883), that “‘the action inhibited by the first section

of the Fourteenth Amendment is only such action as

may fairly be said to be that of the States.’” Blum v.

Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley

v. Kraemer, 334 U.S. 1, 13 (1948)). The Fourteenth

Amendment “erects no shield against merely private

conduct.” Shelley, 334 U.S. at 13.

The most notable exception is the Thirteenth Amendment, which provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof

the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII.

1

8

“To draw the line between governmental and private” is the work of “the state-action doctrine.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,

1926 (2019). As the Court has explained, “enforc[ing]

[the] critical boundary between the government and

the individual * * * protects a robust sphere of individual liberty,” and “[e]xpanding the state-action doctrine beyond its traditional boundaries would expand

governmental control while restricting individual liberty and private enterprise.” Id. at 1934. Put another way, norms that increase freedom when applied to

the state—which possesses coercive power over its

citizens—decrease freedom when applied to private

individuals and institutions that lack such power.

A. The line between public and private activity is

fundamental even in cases involving secular speech,

as “the Free Speech Clause prohibits only governmental abridgment of speech,” not “private abridgment of

speech.” Id. at 1928. For example, while imposing an

obligation of content neutrality on the state enhances

the expressive liberty of private citizens (Carey v.

Brown, 447 U.S. 455, 462-463 (1980)), imposing such

an obligation on private parties would interfere with

such liberty (Hurley v. Irish-American Gay, Lesbian

& Bisexual Grp., 515 U.S. 557 (1995)). Subjected to

the First Amendment, private parties “would lose the

ability to exercise what they deem to be appropriate

editorial discretion within that open forum” and

“would face the unappetizing choice of allowing all

comers or closing the platform altogether.” Halleck,

139 S. Ct. at 1930-1931. Thus, “when a private entity

provides a forum for speech, [it] is not ordinarily constrained by the First Amendment.” Id. at 1930.

Likewise, “the fact that the government licenses,

contracts with, or grants a monopoly to a private en-

9

tity does not convert the private entity into a state

actor—unless the private entity is performing a traditional, exclusive public function.” Id. at 1931. “The

same principle applies if the government funds or

subsidizes a private entity.” Id. at 1932. In RendellBaker v. Kohn, 457 U.S. 830, 840 (1982), for example,

this Court dismissed a free speech claim against a

private school that received 90-99% of its funding

from the state, on the ground that it was not a state

actor. And this Court has forcefully rejected the notion that “‘being heavily regulated makes you a state

actor,’” recognizing that it “is entirely circular and

would significantly endanger individual liberty and

private enterprise”—especially in “the speech context,

because it could eviscerate certain private entities’

rights to exercise editorial control over speech and

speakers on their properties or platforms.” Halleck,

139 S. Ct. at 1932; see also Rust v. Sullivan, 500 U.S.

173, 193-194 (1991) (free speech guarantees are inapplicable to private parties conveying governmental

messages); Eu v. San Francisco Cty. Democratic Cent.

Comm., 489 U.S. 214, 224-225 (1989) (applying political neutrality requirements to political parties would

interfere with private advocacy).

B. The line between public and private action is

even more critical when it comes to religion. If private citizens form a church or otherwise engage in

religious exercise, their activities are affirmatively

protected by the First Amendment’s Free Speech and

Free Exercise Clauses. But if the government forms

a church or engages in religious exercise, its activities

are not just unprotected by the Free Speech and Free

Exercise Clauses; they are affirmatively prohibited by

the Establishment Clause. See Mitchell v. Helms,

530 U.S. 793, 809 (2000) (plurality op.) (the Estab-

10

lishment Clause requires “distinguish[ing] between

indoctrination that is attributable to the State and

indoctrination that is not”). In other words, the line

between private and governmental religious activity

determines whether the activity is constitutionally

protected or constitutionally prohibited. No wonder

the line is “crucial.” Santa Fe, 530 U.S. at 302.

II. Whether prayer is attributable to the state

should be determined by applying the same

legal standards that govern whether secular

speech is attributable to the state.

Whether speech is religious as opposed to secular

does not—or should not—alter how courts analyze

whether that speech is fairly attributable to the state.

While that determination has different consequences

for religious speech than for secular speech, the determination itself turns on the neutral application of

standards that apply without regard to the secular or

religious subject matter of the speech. Thus, where

secular speech is private under the governing neutral

standards, religious speech of the same character is

also private—and vice versa. Any other rule would

put the courts in the business of discriminating based

on content and viewpoint. And “private religious

speech, far from being a first Amendment orphan, is

as fully protected under the Free Speech Clause as

secular private expression.” Capitol Sq. Rev. & Advis. Bd. v. Pinette, 515 U.S. 753, 760 (1995).

So what are the governing standards? It may not

be possible to catalog every possible context, but two

common-sense rules control. Where the state invites

private citizens to speak at school-sponsored events,

whether that speech is attributable to the state depends on whether the criteria for selecting the speak-

11

ers are objective and neutral toward religion, and on

whether the government exercises substantial control

over the content of their speech. Lee v. Weisman, 505

U.S. 577, 586-590 (1992). And where the speakers

are government employees, whether the speech is attributable to the government depends on whether the

speech itself is part of their job duties—not simply on

whether the speech takes place during working hours

or on government property. Garcetti v. Ceballos, 547

U.S. 410, 420 (2006). Moreover, it is typically important—and revealing—to consider how the government treats employees’ secular speech in similar

circumstances.

A. Whether the speech of invited guests at

school-sponsored events is private turns

on whether they are chosen for secular

and neutral reasons and retain primary

control over the content of their speech.

Where private citizens offer religious speech in

public school-sponsored settings or public fora, two

main considerations govern whether their speech is

attributable to the state: the neutrality (or lack

thereof) of the criteria by which the outside speakers

are given the opportunity to speak, and the extent to

which the government controls the content of their

speech. Depending on the circumstances, the speech

might fall on either side of the public-private line.

1. In Weisman, for example, this Court held that

a school district’s practice of inviting clergy to deliver

prayers at middle school graduation ceremonies violated the Establishment Clause. The Court stressed

that the school “direct[ed] the performance of a formal religious exercise” by selecting a member of the

clergy specifically to pray and curating his prayers’

12

content—to the point that they “bore the imprint of

the State.” Id. at 586, 590. To ensure that the prayer

was “[a]ppropriate,” the principal provided a visiting

rabbi with “a pamphlet entitled ‘Guidelines for Civic

Occasions’” and “advised [that] the invocation and

benediction should be nonsectarian.” Id. at 581. Because the district selected the speaker specifically to

deliver the prayers (non-neutral criteria) and “directed and controlled the content of the prayers,” the

prayers of its invited guest were “attributable to the

State.” Id. at 587-588.

The Court in Weisman took care, however, to reiterate that the “constitutional constraints” imposed by

the First Amendment “applied to state action.” Id. at

595. While the Constitution does not permit the public schools “to undertake th[e] task [of prayers] for itself,” neither “does [it] allow the government to stifle

praye[r].” Id. at 589. In short, the “Religion Clauses

mean that religious beliefs and religious expression

are too precious to be either proscribed or prescribed

by the State.” Ibid.

Similarly, the Court in Santa Fe invalidated a

school policy that directed the student body to elect a

single “chaplain” for the entire football season and

actively encouraged the chaplain to give “invocations”

at each football game. 530 U.S. at 309. Rather than

choosing the speaker based on neutral criteria, the

policy enlisted the student body to elect a speaker

based on the expectation that the speaker would

pray. Id. at 309-311.

By contrast, the Court in Town of Greece v. Galloway sustained the practice of opening town hall meetings with prayer because the town “neither reviewed

the prayers in advance of the meetings nor provided

13

guidance as to their tone or content,” but “instead left

the guest clergy free to compose their own devotions,”

such that “any member of the public [was] welcome in

turn to offer an invocation reflecting his or her own

convictions.” 572 U.S. 565, 571, 589 (2014). The

prayers thus “reflect[ed] the values” of those praying

“as private citizens,” and was “an opportunity for

them to show who and what they [were] without

denying the right to dissent.” Id. at 588.

2. On the other side of the public-private line, the

Court’s landmark decision in Widmar v. Vincent, 454

U.S. 263 (1981), confirms that it does not violate the

Establishment Clause—and does violate the freedom

of speech—for public universities to deny student

groups equal access to school facilities “for purposes

of religious worship or religious teaching.” Id. at 265.

Where the state allows access to public spaces based

on neutral criteria—such as registration as a student

group—the speech that results “does not [bear] any

imprimatur of state approval” and the Establishment

Clause is not implicated. Id. at 274. The state’s use

of neutral selection criteria shows that it is “no more

commit[ted]” to religious groups’ speech than to the

speech of “‘the Young Socialist Alliance,’ or any other

group eligible to use its facilities.” Ibid. (citation

omitted).

In so holding, the Court in Widmar forcefully rejected the idea that the university could “discriminate

against religious speech on the basis of its content” or

provide such speech with “less protection than other

types of expression.” Id. at 267. The state’s asserted

interest “in achieving greater separation of church

and State than is already ensured under the Establishment Clause,” the Court explained, “is limited by

14

the Free Exercise Clause and * * * the Free Speech

Clause as well.” Id. at 276.

The Court reaffirmed that principle in Rosenberger v. Rector and Visitors of University of Virginia,

515 U.S. 819 (1995). There, a university refused to

fund a student newspaper “solely on the basis of its

religious viewpoint.” Id. at 837. This Court condemned that refusal, again “reject[ing] the position

that the Establishment Clause even justifies, much

less requires, a refusal to extend free speech rights to

religious speakers” on the same terms as nonreligious

speakers. Id. at 839. The Establishment Clause applies where “the State is the speaker”—either because it “enlists private entities to convey its own

message” or “determines the content” by substantially “regulat[ing] * * * what is or is not expressed.” Id.

at 833. But when speakers are chosen based on “evenhanded” and “neutral criteria” that do not “promote” or “encourage” a particular message (id. at 833,

839), the state is not speaking and the Free Speech

Clause applies with full force to any religious speech

offered by the speaker.

The same day, this Court rejected a claim that the

state “violates the Establishment Clause when, pursuant to a religiously neutral state policy, it permits a

private party to display an unattended religious symbol in a traditional public forum located next to its

seat of government.” Pinette, 515 U.S. at 757. As the

Court held, “private expression” may not be curtailed

to serve some purportedly “compelling interest in

complying with the Establishment Clause” or “avoiding official endorsement of Christianity.” Id. at 760,

761, 762. And the fact that “expression [is] made on

government property” does not convert it to govern-

15

ment speech if the terms of access to a public arena

are truly neutral. Id. at 763, 765-766 (plurality op.).

It is particularly important to stress that “fears of

an Establishment Clause violation” do not allow the

state to discriminate against private religious speech.

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 387, 393-395 (1993). In Good News

Club v. Milford Centr. Sch., 533 U.S. 98 (2001), for

example, a private religious club wanted to use a

school’s facilities to host meetings after school, but

the school denied the club the same access it provided

to others. Ibid. This Court held that the school “unconstitutionally excluded a private speaker” based on

its erroneous view that “its interest in not violating

the Establishment Clause outweigh[ed] the Club’s

interest in gaining equal access to the school’s facilities.” Id. at 106, 112. The school’s actions did not

simply avoid an Establishment Clause violation; “it

discriminated against the Club because of its religious viewpoint in violation of the Free Speech

Clause.” Id. at 120.

As these cases illustrate, whether speech is private (and thus beyond the Establishment Clause’s

strictures), or attributable to the state (and thus subject to the Establishment Clause’s constraints), turns

on (1) whether the criteria that made possible the

speech given on state property or with state resources

are neutral, and (2) whether the state controls the

content of the speech. When the criteria are not neutral or the state controls the message, then “the State

is the speaker.” Rosenberger, 515 U.S. at 833. If the

speech is secular, the state may “regulate the content

of what is or is not expressed” to “ensure that its

message is neither garbled nor distorted.” Ibid.

16

3. The Department of Education, in consultation

with the Department of Justice, has issued legal

guidance on drawing the line between protected private religious speech and governmental speech controlled by the Establishment Clause. Under that

guidance—which is legally binding on federally funded public schools—where the state allows expression

based on “genuinely content-neutral criteria” and

leaves speakers with “primary control over the content of their expression,” any speech, including “prayer[,] is not attributable to the State and may not be

restricted because of its religious content.” U.S. Dep’t

of Educ., Guidance on Constitutionally Protected

Prayer and Religious Expression in Public Elementary and Secondary Schools, 85 Fed. Reg. 3257, 3265

(Jan. 21, 2020); see 68 Fed. Reg. 9645, 9647 (Feb. 24,

2003) (original version).2

Indeed, schools must remember that they “do not

endorse everything they fail to censor.” 85 Fed. Reg.

at 3265-3266 (quoting Mergens, 496 U.S. at 250 (plurality op.)). And although the Establishment Clause

bars the government from engaging in religious exercise, “neither the power nor the prestige” of the state

may “be used to control, support or influence the

kinds of prayer the American people can say.” Engel

v. Vitale, 370 U.S. 421, 429 (1962).

Under Section 8524(a) of the Elementary and Secondary

Education Act of 1965 (ESEA), as amended by the Every

Student Succeeds Act and codified at 20 U.S.C. § 7904(a),

this Guidance binds all public elementary and secondary

schools that receive federal funding.

2

17

B. Whether the speech of public employees

at state-sponsored events is attributable

to the state turns on whether the speech

itself is part of their job duties.

When the speaker is a government employee, determining whether her speech is the government’s

presents a somewhat different question. Nevertheless, because that inquiry does not shift depending on

whether the employee’s speech is secular or religious,

the government’s treatment of secular speech in similar circumstances is instructive.

1. It is beyond dispute that “citizens do not surrender their First Amendment rights by accepting

public employment” (Lane v. Franks, 573 U.S. 228,

231 (2014)), and that government employees “receive

First Amendment protection for expressions made at

work” (Garcetti, 547 U.S. at 420). Government employees, no less than others, have the right “to speak

as a citizen.” Id. at 417.

Where this Court has approved restricting public

employees’ speech under the Garcetti framework, the

restrictions have concerned “statements [made] pursuant to [the employee’s] official duties.” Id. at 421.

In Garcetti itself, for example, an assistant prosecutor

concluded that a search warrant affidavit “contained

serious misrepresentations,” and he recommended to

his supervisors that the related criminal charges be

dismissed. Id. at 420. His supervisors allegedly retaliated, transferring him to a less desirable job and

denying him a promotion. Id. at 415. But the Court

held that the prosecutor could be disciplined for his

recommendation, calling it “controlling” that the particular speech at issue went to the core of his “official

18

duties”: “advis[ing] his supervisor about how best to

proceed with a pending case.” Id. at 421.

In determining that the assistant prosecutor’s recommendation was made in fulfilling his job duties

and not in his capacity as a private citizen, the Court

observed that it was not “the kind of activity engaged

in by citizens who do not work for the government.”

Id. at 423. The Court had held protected government

employee speech with citizen-speech analogues: a

schoolteacher’s “letter to a local newspaper” and “discussi[ons of] politics with a co-worker.” Id. at 423-424

(citing Pickering v. Bd. of Ed., 391 U.S. 563 (1968);

Rankin v. McPherson, 483 U.S. 378 (1987)). “When a

public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue

to speech by citizens who are not government employees.” Id. at 424. Indeed, the prosecutor did “not

dispute that [he] wrote his disposition memo pursuant to his employment duties.” Ibid.

In announcing that Coach Kennedy “spoke as a

public employee when he kneeled and prayed on the

fifty-yard line immediately after games while in view

of students and parents” (Pet. App. 16-17), the Ninth

Circuit “read Garcetti far too broadly” (Lane, 573 U.S.

at 239). By the Ninth Circuit’s lights, it sufficed that

Kennedy bore “the mantle of one who imparts

knowledge and wisdom,” and that “expression was

[his] stock in trade.” Pet. App. 14. But nothing in

this Court’s precedents supports the notion that the

speech of public employees—even teachers—on public

property during the workday is necessarily attributable to the state. Indeed, such a rule would sound the

death knell for academic freedom.

19

Garcetti rejected the notion that “all speech within

the office” or “concern[ing] the subject matter” of the

job (which prayer is not) “is automatically exposed to

restriction” as governmental speech. Id. at 421.

Lane reaffirmed that this Court has never blessed restricting “speech that simply relates to public employment or concerns information learned in the

course of public employment.” 573 U.S. at 239. And

in the Establishment Clause context, Santa Fe explained that “not every message” that is “authorized

by a government policy and take[s] place on government property at government-sponsored schoolrelated events * * * is the government’s own.” 530

U.S. at 302.

Thus, the inquiry does not turn on the employee’s

status as an “‘especially respected person[]’” or the

“time” or “location” of his speech. Pet. App. 14, 15 (citation omitted). Rather, “[t]he critical question * * *

is whether the speech at issue is itself ordinarily

within the scope of an employee’s duties.” Lane, 573

U.S. at 240. And this duty-centric inquiry must be

“practical” not “[f]ormal[istic]”—employers cannot

“restrict employees’ rights by creating excessively

broad job descriptions.” Garcetti, 547 U.S. at 424.

Practical experience confirms that not everything

public employees say during working hours is part of

their job. Workplaces are venues for all kinds of discussions, and public employees engage in all sorts of

speech not attributable to the state. Employees are

often “‘free to talk about whatever they want,’ including ‘the Cowboy[s’] game * * * [or] what they did over

the weekend.’” Texas State Teachers Ass’n v. Garland

Indep. Sch. Dist., 777 F.2d 1046, 1054 (5th Cir. 1985),

aff’d, 479 U.S. 801 (1986). Tons of speech, some of it

controversial, takes place in schools during school

20

hours without becoming part of the curriculum or the

speech of the state. The Ninth Circuit’s extreme position would leave teachers unable to express opinions

to their students, or in the hearing of their students

—or in Coach Kennedy’s case, even to pray silently at

meals. If all teacher speech at school is “government

speech,” the government can censor it all.

2. Religious speech should not stand on such footing. Since the Clinton Administration, the Executive

Branch has formally recognized that federal employees may engage in religious speech to the same extent

that they may engage in non-religious speech. Guidelines on Religious Exercise and Religious Expression

in the Federal Workplace (Aug. 14, 1997) (“Guidelines

on Religious Exercise”). In issuing these Guidelines,

President Clinton directed that agencies “permit employees to engage in personal religious expression (as

they must permit other constitutionally valued expression) to the greatest extent possible, consistent

with interests in workplace efficiency and requirements of law.” President William J. Clinton, Memorandum on Religious Exercise and Religious Expression in the Federal Workplace 1247 (August 14, 1997).

Moreover, the Guidelines “have the force of an Executive Order,” and they reflect the consistent view of

the Executive Branch for a quarter century. See Off.

Att’y Gen., Memorandum for All Executive Departments and Agencies: Federal Law Protections for Religious Liberty, 11a (Oct. 6, 2017).

The Guidelines provide that “[e]mployees should

be permitted to engage in religious expression” just

as they “may engage in comparable nonreligious private expression, subject to reasonable and contentneutral standards and restrictions.” Guidelines on

Religious Exercise. And “[a]s a matter of law, agen-

21

cies shall not restrict personal religious expression by

employees * * * except where the employee’s interest

in the expression is outweighed by the government’s

interest in the efficient provision of public services or

where the expression intrudes upon the legitimate

rights of other employees or creates the appearance,

to a reasonable observer, of an official endorsement of

religion.” Ibid. Indeed, “even in workplaces open to

the public,” employees “may discuss religion * * * so

long as the public would reasonably understand the

religious expression to be that of the employees acting in their personal capacities.” Ibid.

C. The misperception of endorsement of religion cannot convert state inaction into

state action.

1. This Court has never held that the Establishment Clause is violated simply because observers

might mistakenly attribute private religious activity

by an employee to a governmental employer. And for

good reason: just as the government does not endorse

the Dallas Cowboys when a public employee praises

the team during working hours, the fact that someone might think a coach or teacher is endorsing religion does not mean the government is doing so.

That rule applies with full force in public schools.

“The proposition that schools do not endorse everything they fail to censor is not complicated.” Mergens, 496 U.S. 226 at 250 (plurality op.). That is especially true where “the government has not fostered

or encouraged any mistaken impression that the

[speaker] speak[s] for the University.” Rosenberger,

515 U.S. at 841 (quotation omitted). In Rosenberger,

for example, where the university “t[ook] pains to

disassociate itself from the private speech” at issue,

22

“[the] concern that Wide Awake’s religious orientation would be attributed to the University [was] not a

plausible fear, and there [was] no real likelihood that

the speech in question [was] being either endorsed or

coerced by the State.” Id. at 841-842. Any other view

would not only threaten “a denial of the right of free

speech,” but would “risk fostering a pervasive bias or

hostility to religion, which could undermine the very

neutrality the Establishment Clause requires.” Id. at

845-846.

2. Critically, courts analyzing whether attribution is a “plausible fear” must evaluate the issue from

the vantage point of a legally informed observer. See

Lamb’s Chapel, 508 U.S. at 395 (the Court’s decisions

determine whether “the posited fears of an Establishment Clause violation” are reasonable). Any other rule would allow public confusion about the law to

create an Establishment Clause problem—even when

this Court has affirmed that a specific practice is legitimate.

For example, an observer could not reasonably believe, given this Court’s decision in Good News Club,

that it is unconstitutional for a private group to be

given equal access to classrooms for religious instruction after school. 533 U.S. at 112–119. Likewise, a

reasonable observer considering whether a Christian

student newspaper could receive equal access to university funding would not answer that question on a

blank slate; it would look to Rosenberger. 515 U.S. at

837–846. The same is true of whether a church may

be given equal access to public schools to screen religious films (Lamb’s Chapel, 508 U.S. at 394–395),

whether students may form a religious club with a

faculty monitor (Mergens, 496 U.S. at 249–253 (plurality op.)), and whether student groups may use uni-

23

versity buildings for worship (Widmar, 454 U.S. at

270–275). It would eviscerate those decisions to suggest that the Establishment Clause might still be violated if a “reasonable observer” somehow thought the

school was endorsing the practice in question.

That is why this Court in Good News “decline[d] to

employ Establishment Clause jurisprudence using a

modified heckler’s veto, in which a group’s religious

activity can be proscribed” based on misperceived religious endorsement. 533 U.S. at 119. As the Court

recognized, granting objectors such a veto would upend “countervailing constitutional concerns related to

rights of other individuals” to engage in free speech

or free religious exercise. Ibid. Good News thus confirms that a constitutionally permissible practice does

not become an Establishment Clause violation merely

because some members of the public might be confused about its constitutionality.

Where the public schools are fairly concerned that

observers will wrongly attribute to the government

speech that is actually private, the proper remedy is

not for them to silence private speakers, but rather to

disclaim sponsorship of their messages. Because

“[p]ublic belief that the government is partial does

not permit the government to become partial,” “[t]he

school’s proper response is to educate the audience

rather than squelch the speaker.”

Hedges v.

Wauconda Community Sch. Dist., 9 F.3d 1295, 12991300 (7th Cir. 1993). “Schools may explain that they

do not endorse speech by permitting it. If pupils do

not comprehend so simple a lesson, then one wonders

whether the * * * schools can teach anything at all.”

Ibid. And in all events, a school’s respect for its employees’ First Amendment rights cannot violate the

24

Establishment Clause just because observers mistakenly attribute private religious speech to the school.

III. Coach Kennedy’s post-game prayers were

private speech and thus cannot violate the

Establishment Clause.

The Ninth Circuit erred in applying the foregoing

principles of state action, free speech, and nonestablishment to Coach Kennedy’s practice of praying after

games where he had been coaching. First, it wrongly

held that “Kennedy spoke as a public employee when

he kneeled and prayed on the fifty-yard line immediately after games while in view of students and parents.” Pet. App. 17 (citation omitted). Second, it

wrongly reasoned that even if “[he] spoke as a private

citizen,” the District had “adequate justification” for

censoring his prayer: an “objective observer” would

have perceived giving Kennedy “free rein” as “a stamp

of approval.” Id. at 17, 18, 20. Indeed, the court declared that “[t]he school district’s interest in avoiding

an Establishment Clause violation trumps [a teacher’s] right to free speech.” Id. at 17 (citation omitted).

But judged in light of neutral legal standards, Kennedy’s prayers were not the state’s, and “[t]here is no

Establishment Clause violation in the [government]

honoring its duties under the Free Speech Clause.”

Rosenberger, 515 U.S. at 846.

A. Kennedy’s prayers were not attributable

to Bremerton School District.

Coach Kennedy’s prayers are not attributable to

the state under any fair application of neutral legal

standards. The facts here are far afield from cases

where public schools direct employees to lead students in prayer (Engel, 370 U.S. at 422-424), invite a

member of the clergy specifically to pray and “direct[]

25

and control[]” the substance of his prayer (Weisman,

505 U.S. at 587-588), or require the student body to

elect a “chaplain” to pray (Santa Fe, 530 U.S. at 309).

To begin with, no one suggests that praying was

part of Coach Kennedy’s job duties—he is a football

coach, not a chaplain. Nor were his prayers authorized or encouraged by any school policy. No evidence

suggests that the District hired Kennedy, or allowed

him to engage in the practice of post-game prayer,

with the intent of promoting religion. Unlike Rabbi

Gutterman in Weisman, he was not given privileged

access to the podium because the state wanted the

audience to hear a prayer. During the post-game period when Kennedy prays, others are free to socialize,

mill about the field, enter the stands, or text friends

or family—one fellow coach “took [his] own personal

few moments” to perform a Buddhist chant. ECF 6423 at 3. In fact, the court below acknowledged that,

for the first six years of his practice, the District was

not even aware of his midfield prayers; and when it

did become aware of them, its immediate response

was to tell him to stop. Pet. App. 4-5. In no rational

universe could this sort of expression—unauthorized,

long unknown, and eventually disapproved by the

state—be viewed as “government speech.”

No one disputes that “[g]overnment employers,

like private employers, need a significant degree of

control over their employees’ words and actions.”

Garcetti, 547 U.S. at 418. But the purpose of this

control is to ensure “the efficient provision of public

services” (ibid.), which is not reasonably threatened

by actions like Kennedy’s, and in any event is irrelevant to the District’s stated rationale for firing him.

Indeed, the implication of the Ninth Circuit’s holding

is that the state has the power to censor and control

26

the speech of coaches whenever it occurs on school

property—which would damage free speech well beyond the religious context of this case.

Although speech can be unprotected if it disrupts

the workplace (Connick v. Myers, 461 U.S. 138, 152

(1983)), the Free Speech Clause requires that any

disruption be measured by neutral, secular criteria.

If the state tolerates employees’ secular private

speech in a given context, then it must tolerate comparable religious speech. Here, nothing in the record

suggests that the District would have clamped down

on Coach Kennedy’s post-game speech if, for example,

he were making phone calls on the field or singing

“We Are the Champions” after a big win. But he was

not hired to do those things either. His speech during

the post-game period simply was not part of his job

duties—at least until the District, on realizing he

used the time to pray, reimagined his job description.

Consider the practice that some of amici’s colleagues in the NFL for a time adopted—that of “taking a knee” during the National Anthem, to protest

racism and related police violence. What the practice

means, and how it is perceived, are matters of much

debate. Some regard the practice as unpatriotic or

disrespectful to the police; others see it as a courageous way to call attention to a social justice issue of

grave urgency. Jeremy Adam Smith & Dacher Keltner, The Psychology of Taking a Knee, Sci. Am. (Sept.

29, 2017).3 But if Coach Kennedy had taken a knee

to protest racism during the National Anthem rather

than taking a knee to pray after time expired, no one

would suggest that his act was governmental speech.

https://blogs.scientificamerican.com/voices/thepsychology-of-taking-a-knee/.

3

27

Why? Because anyone remotely familiar with

sporting events knows that symbolic expressions of

personal opinion, though done on public property during working hours, are not “statements” made in performing one’s “official duties”—the “controlling” test.

Garcetti, 547 U.S. at 421. In other words, any reasonable observer would understand that Kennedy’s

speech in taking a knee was his own. As Dr. Dre said

of his co-performer Eminem’s taking a knee during

the 2022 Super Bowl halftime show: “Em taking a

knee that was Em doing that on his own”; “there was

no problem with that.” Lisa R. France, Dr. Dre talks

Eminem taking a knee at Super Bowl, CNN (Feb. 17,

2022).4

Indeed, as amici can attest from their experience

at all levels of sports—high school, college, and pro—

audiences understand symbolic acts of speech on the

field to reflect the views of the individual athletes

and coaches who engage in them, whether they are

Colin Kaepernick, Tim Tebow, Shaquille O’Neal, or

Joe Kennedy. The analysis does not change because

the speech is religious rather than political. Barnette,

319 U.S. at 632 (a “bended knee” can convey “theological” or “political ideas”). Nor does it matter that

some might take offense, as “[i]t is firmly settled that

under our Constitution the public expression of ideas

may not be prohibited merely because the ideas are

themselves offensive to some of their hearers.” Street

v. New York, 394 U.S. 576, 592 (1969); see also Town

of Greece, 572 U.S. at 589 (“an Establishment Clause

violation is not made out any time a person experiences a sense of affront from the expression of contrahttps://www.cnn.com/2022/02/16/entertainment/dreeminem-super-bowl/index.html

4

28

ry religious views”). In short, it is far better, for both

the freedom of speech and the neutrality of the government, for public schools and courts to recognize

that players and employees are often speaking as individuals, not government mouthpieces.

Lacking any serious claim that the expressive acts

of coaches and athletes on the field are governmental,

the District juked. In a clumsy attempt to make everything Coach Kennedy said and did after the game

part of his job, it instructed him to give “motivational,

inspirational talks” instead of saying post-game prayers. Pet. App. 15-16. But this is a classic boot-strap.

The state cannot single out particular speech for suppression on content-based grounds, and then conjure

up a neutral justification for doing so by assigning

the speaker a duty at the same time as the offensive

speech. To state the obvious, prayers were not “ordinarily within the scope of” Coach Kennedy’s duties.

Lane, 573 U.S. at 240.

B. The Ninth Circuit’s view that the dictates

of the Establishment Clause and the Free

Speech Clause conflict confirms that the

court misunderstood the clauses’ scope.

Citing Good News Club and its own decision in

Peloza v. Capistrano Unified School District, 37 F.3d

517 (9th Cir. 1994), the court below suggested that

certain conduct that is protected by the Free Speech

Clause simultaneously violates the Establishment

Clause—and that “[the state’s] interest in avoiding

an Establishment Clause violation trumps [a private

citizen’s] right to free speech.” Pet. App. 17. This

view rests on a conceptual error: If speech that is

properly attributable to the state advances religion,

the Establishment Clause compels the state to stop;

29

but if private speech advances religion, it is fully protected by the Free Speech Clause.

Rosenberger addressed precisely this point. There

the Fourth Circuit had held that a public university’s

refusal to fund an otherwise-eligible student newspaper because of its religious perspective amounted to

viewpoint discrimination, in violation of the students’

freedom of speech, while at the same time holding

that the Establishment Clause prohibited funding the

newspaper. Rosenberger, 515 U.S. at 828. But this

Court reversed, emphasizing the “crucial difference

‘between government speech endorsing religion,

which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech and

Free Exercise Clauses protect.’” Id. at 841 (quoting

Mergens, 496 U.S. at 250).

The speech in Rosenberger was private—and thus

not possibly a violation of the Establishment Clause

—because “[t]he University [took] pains to disassociate itself from the private speech,” it was “not a plausible fear” that the newspaper’s “religious orientation

would be attributed to the University,” and there was

“no real likelihood that the speech in question [was]

being either endorsed or coerced by the State.” Id. at

841-842. In other words, “denial[s] of the right of free

speech” are never necessary to enforce the Establishment Clause; rather, such denials “risk fostering

a pervasive bias or hostility to religion, which could

undermine the very neutrality the Establishment

Clause requires.” Id. at 845-846. If a court concludes

that the same speech is governmental for purposes of

the Establishment Clause and private for purposes of

the Speech Clause, one of the clauses is being misinterpreted.

30

To be sure, the Court in Pinette commented that

“[t]here is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on

speech.” 515 U.S. at 761-762; see also Good News,

533 U.S. at 112 (“a state interest in avoiding an Establishment Clause violation” may “justify contentbased discrimination”). Respectfully, however, that

analysis misses the point: When these clauses are

properly interpreted, there should never be a situation where the Establishment Clause requires one

result and the Free Speech Clause requires another,

forcing courts to choose between the clauses. To hold

that Coach Kennedy’s post-game prayers on the 50yard line are private, but should be restricted by the

Establishment Clause, is a conceptual impossibility.

One clause does not take precedence over the other;

they govern different situations. This Court should

make that clear.5

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

5 See also Douglas Laycock, Religious Liberty as Liberty, 7

J. Contemp. Legal Issues 313, 331 (1996); Carl H. Esbeck,

The Establishment Clause as a Structural Restraint on

Governmental Power, 84 Iowa L. Rev. 1, 83-86 (1998); cf.

Laurence H. Tribe, American Constitutional Law § 14-8,

at 1201 (2d ed. 1988) (in case of conflict, “the free exercise

principle should be dominant [over] the antiestablishment principle”).

31

Respectfully submitted.

MICHAEL MCCONNELL

Wilson Sonsini

Goodrich & Rosati, P.C.

650 Page Mill Rd

Palo Alto, CA 94306

(650) 493-9300

JOHN J. BURSCH

DAVID A. CORTMAN

TYSON C. LANGHOFER

Alliance Defending

Freedom

440 First Street, NW

Washington, DC 20001

(616) 450-4235

STEFFEN N. JOHNSON

Counsel of Record

PAUL N. HAROLD

JOHN B. KENNEY

G. EDWARD POWELL III

KELSEY J. CURTIS

Wilson Sonsini

Goodrich & Rosati, P.C.

1700 K Street, N.W.

Washington, DC 20006

(202) 973-8800

sjohnson@wsgr.com

Counsel for Amici Curiae

MARCH 2022