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

No. 21-418

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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 OF BREMERTON COMMUNITY

MEMBERS—BHS FOOTBALL TEAM ALUMNUS,

PARENTS, COMMUNITY LEADERS, AND

EDUCATORS—AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------ANDREW D. LEVY

Counsel of Record

ANTHONY J. MAY

LAUREN A. DIMARTINO

BROWN, GOLDSTEIN & LEVY, LLP

120 E. Baltimore Street,

Suite 2500

Baltimore, Maryland 21202

Tel: (410) 962-1030

Fax: (410) 385-0869

adl@browngold.com

amay@browngold.com

ldimartino@browngold.com

Counsel for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

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

ii

Interest of Amici Curiae ......................................

1

Summary of the Argument ..................................

5

Argument .............................................................

9

I.

The Bremerton High School Football Field

Is the Stage Where the Establishment and

Free Exercise Clauses Meet ......................

9

A. Petitioner’s Soliloquy Placed His Own

Free Exercise Rights Above Those of

the Community ....................................

9

B. Petitioner’s Prayer Crossed the Line to

Coerce and Indoctrinate an Audience

of Impressionable Youth ...................... 14

C. Petitioner’s Self-Interest Demoted

Community Members and Students

from Stars to Understudies ................. 19

II.

Petitioner’s Efforts to Steal the Spotlight

Created the Very Divisiveness Establishment Clause Jurisprudence Counsels

Against ....................................................... 23

Conclusion............................................................ 30

ii

TABLE OF AUTHORITIES

Page

CASES

Comm. for Pub. Educ. & Religious Liberty v.

Nyquist,

413 U.S. 756 (1973) .................................................27

Edwards v. Aguillard,

482 U.S. 578 (1987) .................................................12

Engel v. Vitale,

370 U.S. 421 (1962) .................................................29

Lee v. Weisman,

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

Lemon v. Kurtzman,

403 U.S. 602 (1971) .................................................28

Locke v. Davey,

540 U.S. 712 (2004) ...................................................5

Lynch v. Donnelly,

465 U.S. 668 (1984) ................................ 22, 23, 27-28

People of State of Ill. ex rel. McCollum v. Bd. of

Educ. of Sch. Dist. No. 71, Champaign Cnty., Ill.,

333 U.S. 203 (1948) ......................... 13, 18, 23, 24, 30

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) .................................................12

Prince v. Massachusetts,

321 U.S. 158 (1944) .................................................12

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

530 U.S. 290 (2000) ................................... 6, 9, 17, 31

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

374 U.S. 203 (1963) ...................................................9

iii

TABLE OF AUTHORITIES—Continued

Page

Van Orden v. Perry,

545 U.S. 677 (2005) .................................................29

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

319 U.S. 624 (1943) ...................................................8

Wallace v. Jaffree,

472 U.S. 38 (1985) ............................................... 6, 16

Walz v. Tax Comm’n of City of N.Y.,

397 U.S. 664 (1970) ............................................. 9, 29

Welsh v. United States,

398 U.S. 333 (1970) .................................................11

CONSTITUTION

U.S. Const. amend. I .....................................................6

OTHER AUTHORITIES

Chris Tucker, Satanists’ presence riles up

crowd at Bremerton football game, Kitsap

Daily News (Oct. 30, 2015), https://www.

kitsapdailynews.com/news/satanists-presenceriles-up-crowd-at-bremerton-football-game/ ..........26

Christine Clarridge, Crowd prays with coach as

he defies school district, Seattle Times (Oct.

16, 2015), https://www.seattletimes.com/seattle

news/education/scores-join-coach-in-postgameprayer/ .....................................................................25

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785) ....................20

iv

TABLE OF AUTHORITIES—Continued

Page

Jennifer Chamberlin, My Turn: Schools without

pressure to pray, Kitsap Sun (Oct. 21, 2015),

https://archive.kitsapsun.com/opinion/my-tur-schools-without-pressure-to-pray-ep-1283814315354461301.html/ .....................................................27

Judge Thomas B. Griffith, The Degradation of

Civic Charity, 134 Harv. L. Rev. F. 119 (2020)........28

Peter O’Cain, Football coach won’t be fired;

can’t participate in post-game prayers, Kitsap

Daily News (Sept. 18, 2015), https://www.

kitsapdailynews.com/news/football-coach-wontbe-fired-cant-participate-in-post-game-prayers/ ......25

Samuel L. Perry, American Religion in the Era

of Increasing Polarization, Ann. R. of Soc.,

Vol. 48 (Forthcoming July 2022) .............................28

Sigmund Freud, Group Psychology and the

Analysis of the Ego (1922).......................................19

1

INTEREST OF AMICI CURIAE1

Amici—a group of eight parents, athletes, community leaders, and taxpayers in Bremerton—write to

provide context about how Petitioner placed his rights

above their own, in a public forum, at the heart of their

community. Each Friday evening in the fall, these individuals gathered under the bright lights of the

Bremerton High School football field to champion their

beloved team, echo the fight songs of their cheerleaders, applaud the marching band’s half-time performance, and support the youth who make up their

community’s future. Though not the reigning state

champions, the Bremerton football team was a symbol

of the comradery that once lived in their small city, a

community united in their differences. Where Bremerton High School is the arena, its football field is the

stage.

Amici understand that a community is an ensemble cast; not a one man show. It is a troupe of folks from

all walks of life, brought together by their own unique

faiths and beliefs. When Petitioner chose to center his

own rights at mid-field of this once-celebrated community gathering, amici’s community united quickly became a community divided.

1

The parties have consented to the filing of this brief. Consistent with Rule 37.6, no counsel for a party authored this brief

in whole or in part, and no counsel or party made a monetary contribution intended to fund its preparation or submission.

2

Football Player (“F.P.”)2 played on Bremerton

High’s team and “[f ]or four years [he] knelt for [Petitioner] in solidarity as he prayed so there would be no

objection to [him] playing football.”3 He shares the

story of his senior year homecoming game that Petitioner turned into a media circus: “I felt attention was

shifted from our football team and focused towards

Kennedy’s prayer circle. To this day, I don’t remember

who we played or if we even won[,] . . . all I remember

is the aftermath of that game.” F.P. recalls the sound of

the horn ending the game and, before the two teams

had the opportunity to shake hands, over 500 people

“storm[ing] the football field . . . from both sides, hopping the fences and rushing to the field to be close to

Kennedy before he started his prayer. . . . [He] felt so

uncomfortable and unsafe.” Petitioner’s group prayers

did not only deprive F.P. of his free exercise rights, but

of his love for football, lasting friendships with his

teammates, and the respect he otherwise earned from

his coaches.

Retired public servant Jane Rebelowski spent

years interacting with the Bremerton community as a

public inspector and as an organizer. She watched as

her usually quiet street behind the high school filled

with outsiders in 2015, bringing turmoil to her

2

For reasons made clear below, see infra Sections I.C, II, F.P.

wishes to remain anonymous.

3

The quoted statements by amici were supplied to undersigned counsel for preparation of this brief and are contained in

interviews and statements provided by amici, on file with amici’s

counsel of record.

3

community and to the school her grandson attended.

She has lived—and paid taxes—in Bremerton for over

twenty years and is devastated that the Bremerton

School District (“the District”) has had to divert its already-scarce resources to fight something that she believes was so clearly in violation of the law.

Paul Peterson is an engineer that worked alongside Petitioner in the shipyard for nearly fifteen years.

Despite their good relationship, Mr. Peterson felt “compelled to speak out as a parent of children who attended the Bremerton public schools in the past, as a

grandparent whose grandchildren may attend in the

future, and as a concerned member and resident of the

community.” Mr. Peterson attended countless Bremerton High football games, singing the fight song along

with his children in the marching band and cheering

for his son that played football under Petitioner’s

watch. In his perspective, when parents enroll their

children in Bremerton public schools, they “entrust the

care, education, mentoring, and nurturing of [them] to

the employees of the public schools,” but Petitioner—

“a man of high integrity” co-opted by outside interests—broke that trust.

As a Bremerton High School employee and former

“band mom,” newly-elected community leader Jennifer Chamberlin spent many Friday nights collecting tickets at the stadium gates and watching students

pour into the stands of her hometown’s field, unaware

that their once safe city would soon become embroiled

in controversy: “[My child] just wanted to be in marching band and have a normal year, but it did not shape

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out to be that.” Ms. Chamberlin’s story sheds light on

the vitriol and hate suffered by anyone who spoke out

in favor of the District.

Amber Kost, a high school teacher whose son was

to enter Bremerton High School the year following Petitioner’s actions, described how she has “tried very

hard to keep [her] teaching career and [her] connections with” her chosen belief system “separate for fear

of retribution.” She is an organizer of two social support organizations: the Kitsap Atheists and Agnostics

and Kitsap County Skeptics. “It has been grating to see

[Kennedy] openly promoting Christianity . . . when I

don’t feel I have the same rights.”4

Rabbi Sarah Newmark—a former educator—

was the leader of the local synagogue when the facts of

this case unfolded. She explains how Petitioner’s religiously-motivated political stance infringed on community members’ right to free exercise: “I always

thought America was where we escaped from forced

prayer.” She discussed how Petitioner’s actions exacerbated the “othering” her Jewish congregants had experienced in Bremerton.

Wife of a retired U.S. Navy Chief, Gayla HightBreach moved her family back to Bremerton twelve

years ago because it was a diverse and accepting community where she wanted to raise her four kids. With

a child attending Bremerton High School at the time,

4

Amici submit this brief in their capacities as private citizens. A mention of an Amicus’s employer does not constitute the

employer’s endorsement of the brief or any portion of its content.

5

she had a front row seat to Petitioner’s “predatory” actions, and she was “appalled” by his efforts to convert

high-school football into a religiously political platform. With her grandchild soon entering the District,

Ms. Hight-Breach feels that she has too great a stake

in the outcome of this case to sit idly by.

Janice McLemore is a 45-year resident of

Bremerton, lifelong Methodist and minister’s wife, and

mother of two who believes that part of being a Christian is respecting who people are and what they believe, not forcing one’s religion on others. Her 35 years

as a teacher and experience in Bremerton schools informs her opinion that the District did the right thing

to “look after their students.”

This community has stood by and watched as Petitioner’s misguided ventures caused a rift in the once

common ground upon which they stood. Still, they remain united in a shared interest to present their perspectives to the Court—despite the considerable risk

of harassment for doing so—so that it may better understand how Petitioner’s purported First Amendment

rights have stripped them of their own.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

Amici understand that the District’s actions

gracefully balanced the Free Exercise and Establishment Clauses. See Locke v. Davey, 540 U.S. 712, 719–20

(2004). Together, the First Amendment is not just

about one man’s right to practice his beliefs; rather, it

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is the protection of a community—and society as a

whole—to be free from the forced adaptation of one

man’s personal views. The notion that “Congress shall

make no law . . . prohibiting the free exercise” of religion, or “respecting an establishment” of the same is

designed to afford all citizens—not one man—the right

to believe and practice as they deem fit. U.S. Const.

amend. I.

Bremerton School District’s actions to protect the

community’s interests were born from the concern that

Petitioner’s prayer—with a team of football players at

the 50-yard line or in the school’s locker room—would

be viewed as an endorsement of Petitioner’s private behavior. This was a valid concern: “The school’s name is

[ ] written in large print across the field and on banners

and flags. The crowd . . . include[d] many who display

the school colors and insignia on their school T-shirts,

jackets, or hats and who may also be waving signs displaying the school name.” Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 308 (2000). In such a situation,

“[r]egardless of the listener’s support for, or objection

to” the prayer, a reasonable observer would “unquestionably perceive the inevitable [ ] prayer as stamped

with her school’s seal of approval.” Id. at 308; see also

Wallace v. Jaffree, 472 U.S. 38, 78 (1985) (O’Connor, J.,

concurring) (“[I]t also seems likely that the message

actually conveyed to objective observers . . . is approval

of the child who selects prayer over other alternatives. . . .”). Petitioner, shrouded in blue and white with

a “Knights” emblem on his chest, standing on the

school’s logo for all to see, carelessly infringed on the

7

impressionable minds of Bremerton’s youth for his own

gain. In doing so, he stole from their parents the right

to raise their children in a way that comports with

their own belief systems.

Amici’s accounts make clear that Petitioner’s

claim that his prayer was a private act is one far removed from the story’s true setting. As a player, F.P.

“always thought [Petitioner’s] purpose on the team was

to offer religious support [to the team] before and after

games.” Indeed, Petitioner was in his role as an employee of the District at all times that his prayers occurred. F.P. explains that the Bremerton coaches did

not go home immediately after the games ended, and

the players were not free to leave at that point. After

the final whistle, Petitioner would “hold up a helmet to

rally students to mid-field,” and players were directed

to attend “the coach’s prayer thing” at midfield, then

proceed to the locker room as a team before they could

go home. Until every player left, Petitioner was liable

to ensuring all team members’ rights were respected.

It was on this public stage, surrounded by players that

“always . . . did as [they] were told,” that Petitioner

carefully chose to pray. To the public, there was no obvious distinction between leading a team in prayer and

private conduct. And to the players, there was no obvious choice. As F.P. explains, participation in Petitioner’s prayer was “expected.”

By seizing the field for his own private speech, Petitioner and his cortège infringed upon the free exercise rights of the Bremerton Community, creating

outcasts of anyone who did not give him their

8

unwavering support. Amici address this Court out of

concern for their own personal freedom of conscience

and for their youths’ right to choose their own path

without fear of being ostracized. Because Bremerton is

a proud Navy town, it is the home of “families moving

in and out from all over the world, it is a community of

all different faiths.” But despite differences in beliefs,

Amici are representative of a community that is united

in celebrating their youth and protecting their right to

experience the joy of being young and curious as they

develop their sense of self. That right is squandered

when public-school mentors, like Petitioner, impose

their own faith onto students. Indeed, our uniquely

American system “secures the right to proselytize religious, political, and ideological causes [but] must also

guarantee the concomitant right to decline to foster

such concepts. [These are] complementary components

of the broader concept of individual freedom of mind.”

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

The very divisiveness that Petitioner has created

in this once tranquil community is precisely what the

First Amendment was designed to prevent. By diverting the focus from the football players, cheerleaders,

and band members to himself, Petitioner cast himself

as the lead actor in a play that was never meant to be

about him. Fueled by the current political landscape,

Petitioner’s actions have shifted limited public resources and attention from the students of Bremerton

to his own agenda. But the First Amendment does not

protect a cast of one; it protects the company of all.

---------------------------------♦---------------------------------

9

ARGUMENT

I.

The Bremerton High School Football Field

Is the Stage Where the Establishment and

Free Exercise Clauses Meet.

The public setting in which Petitioner chose to

pray is a forum prohibited by the First Amendment.

“The constitutional command will not permit the District ‘to exact religious conformity from a student as

the price’ of joining her classmates at a varsity football

game.” Santa Fe, 530 U.S. at 312. As this Court has recognized, there is “room for play in the joints” between

the Free Exercise Clause and the Establishment

Clause that “permit[s] religious exercise to exist without sponsorship and without interference.” Walz v. Tax

Comm’n of City of N.Y., 397 U.S. 664, 669 (1970). In this

case, the District’s actions were not only appropriate,

but they were necessary to protect the free exercise

rights of the community members who were forced to

view—or participate in—Petitioner’s performance.

A. Petitioner’s Soliloquy Placed His Own

Free Exercise Rights Above Those of

the Community.

Amici’s stories vindicate the District’s decision to

prevent Petitioner from using the public-school stage

as a scene to infringe on the free exercise rights of the

community members. The First Amendment does not

protect the rights of one person at the peril of a community. See Sch. Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203, 226 (1963) (“While the Free Exercise

10

Clause clearly prohibits the use of state action to deny

the rights of free exercise to anyone, it has never meant

that a majority could use the machinery of the State to

practice its beliefs.”).

For example, it is the historical context of the Jewish people’s oppression that illustrates why Rabbi

Newmark felt that Petitioner’s prayer in the center of

the football field infringed on her and her congregants’

free exercise rights:

Because of the long history of being forced to

“convert or die” in the Jewish faith, the type

of proselytizing Kennedy engaged in was especially triggering for us. Jews tend to recoil

from Christian prayer in the public sphere

partly because when we refrain from taking

part, we fear an antisemitic backlash. In fact,

many of us refuse to wear our sacred Magen

David (‫מָ גֵן דָּ וִ ד‬, “Shield of David”) because it no

longer feels safe to do so.

When Rabbi Newmark sees group-led prayer in public

spaces, she deeply fears it could result in the forced

compliance of Bremerton’s Jewish community members and takes exception with what she views as

“Christians acting as though they have a corner on the

religious market.” Petitioner’s spectacle was also provocative to amici of faith because it trivialized the importance of prayer and its sacred relationship with

God.

Members of the Christian faith were similarly dismayed by Petitioner’s actions. The Kitsap Interfaith

Network—of which Rabbi Newmark was a member at

11

the time of Petitioner’s actions—includes spiritual

leaders from, among other faith groups, Methodist

Churches, the Church of Latter-Day Saints, the Episcopalian Church, and the Unitarian Church, as well as

a local mosque. Many of the Christian clergy in

Bremerton disagreed with Kennedy’s actions and believed it could lead to their own marginalization. According to Ms. McLemore, the Methodist faith, in

accordance with Matthew 6:6 of the Bible, requires

non-demonstrative prayer. Pressuring students to pray

publicly on the field violated their own belief that

Christians should not perform “acts of righteousness”

in public, and should not pray “like the hypocrites, for

they love to pray standing [ ] and on the street corners

to be seen by men.”

Petitioner’s conduct “also disadvantage[d] adherents of religions that do not worship a Supreme Being.”

Welsh v. United States, 398 U.S. 333, 357–58 (1970)

(Harlan, J., concurring). For example, although F.P. understood that prayer was part of some of his teammates’ lives, it was not a part of his. Yet he was forced

to sit with his discomfort and kneel in prayer before

and after every game.

Similarly, non-religious amici parents are concerned about the “slippery slope”—or “mudslide”—that

may occur if this Court were to allow Petitioner to lead

prayer on the 50-yard line. Ms. Chamberlin discussed

how the forced viewing of open prayer was disrespectful of her child’s freedom to develop their own faith.

Like many others, her child was a member of the band

and required to attend every football game. For Ms.

12

Hight-Breach, despite baptizing her children in the

Lutheran church to honor her grandmother, she did

not intend to raise her children in a religious way. But

as high school students during Petitioner’s prayer services, they were subject to the pressure of his actions.

“Everyone should be respected for their beliefs and our

children need to be protected from proselytizing.” Indeed, Petitioner’s prayer encroached on their right, as

parents, to direct their child’s religious upbringing. See

Pierce v. Soc’y of Sisters, 268 U.S. 510, 535–36 (1925).

“It is cardinal with [this Court] that the custody,

care and nurture of the child reside first in the parents,

whose primary function and freedom include preparation for obligations the state can neither supply nor

hinder.” Prince v. Massachusetts, 321 U.S. 158, 166

(1944) (citation omitted). Amici trusted Bremerton

schools to provide their children with critical-thinking

skills, not to “indoctrinate [their] children into any religion or religious practice.” Cf. Edwards v. Aguillard,

482 U.S. 578, 583–84 (1987) (“Families entrust public

schools with the education of their children, but condition their trust on the understanding that [they] will

not purposely be used to advance religious views that

may conflict with the private beliefs of the student and

his or her family.”). While acknowledging Petitioner’s

rights, Mr. Peterson was disturbed that Petitioner’s

personal religious practice “neglected concern for the

belief or non-belief ” of students and their parents. As

a parent of students in the District, he said that he and

“[m]any [other] parents would be uncomfortable with

the knowledge someone was leading their children in

13

prayers or proselytizing their children into a religion,”

particularly because this “team activity” was occurring

“without the consent or knowledge of the parents of the

students.”

The educators among amici understand how to respect the due process and free exercise rights of students and their families while maintaining their own

religious beliefs. Ms. McLemore’s lifelong “goal has

been to see God in all people and to share the love of

God with others,” but she understands that praying

out loud “is not to be done with students in public

schools supported by taxpayers.” Cf. People of State of

Ill. ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71,

Champaign Cnty., Ill., 333 U.S. 203, 217 (1948). She

would “take moments of prayer all the time” in the hall

or at her desk, but “it did not need to be out loud when

students were there.” She explained that colleagues

also chose to say grace before meals, but in appropriate

ways that went unnoticed by students. Ms. Kost similarly recognizes the influence she has as an educator:

As a teacher now in a full-time, contracted position, I recognize the kind of power that I

have over students. . . . I am careful never to

impose my non-religious beliefs on students

and I’m careful to make sure non-religious

students don’t degrade or diminish the faith

of religious ones. It is precisely my influence

over my students as a teacher that make me

extra careful.

14

B. Petitioner’s Prayer Crossed the Line to

Coerce and Indoctrinate an Audience

of Impressionable Youth.

Amici support the District’s decision to strike a

balance between Petitioner’s personal religious rights

and the rights of the Bremerton community to ensure

students are free in their own religious exercise. As

Paul Peterson described:

I believe that the Bremerton School District did right by Mr. Kennedy to offer a private opportunity for private reflection in

prayer, outside of the leadership position for

which he was being fiscally compensated. It

has always been the stated goal of the school

district to ensure a safe and welcoming place

for all students, and I believe that their action

reflected their commitment to these principles, toward the betterment of the Bremerton

community as a whole.

Likewise, F.P.’s story highlights the Establishment

Clause’s goal of protecting the free exercise rights of

youth. “[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in . . . public schools.” Lee v. Weisman, 505 U.S.

577, 592 (1992) (citations omitted). Prayer associated

with public-school activity “carr[ies] a particular risk

of indirect coercion,” and F.P.’s narrative is emblematic

of “the inspiration for the Establishment Clause, the

lesson that in the hands of government what might

begin as a tolerant expression of religious views may

15

end in a policy to indoctrinate and coerce.” Id. at 591–

92.

I always listened and did as I was told. I

wanted to play football and treated [Petitioner’s] prayer time as any other order from

a coach such as to exercise, attend study hall,

or execute a play. In respect[,] I always took a

knee but never bowed my head. For four years

I knelt for [Petitioner] in solidarity as he

prayed so there would be no objection to me

playing football.

F.P. described his experience in the days following

the chaos that unfolded after Petitioner’s homecoming

game prayer demonstration: “I felt overwhelmed, I

missed a day of school and football practice the following week. I was punished, not allowed to play a quarter

in the next game despite being a starter on all sides of

the ball.” Looking back, F.P. does not “think of [his]

time on the Bremerton High Football as a fond experience.” F.P. abided by Petitioner’s prayer decree because

F.P. “was a leader, not a person to argue with authority[.]” Cf. Lee, 505 U.S. at 590 (“[S]chool officials[’] . . .

effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise

reject.”). F.P.’s story demonstrates how Petitioner’s

public pressure, however “subtle and indirect” as Petitioner may claim, “can be as real as any overt compulsion” for an adolescent. Id. at 593.

As F.P. confirms, there was no freedom of choice for

the team members: “The only time a choice was given

on the matter of praying with . . . Kennedy at the end

16

of football games was at a team meeting Thursday the

day before the game where the media attended and

fans stormed the field.” Prior to that conversation, the

“prayer circle . . . was something that was expected.”

Petitioner even relied on students to recruit others:

“Kennedy . . . encouraged players on our team to ask

the other teams’ coaches and players to join us [in

prayer].”

Like F.P., many students on the team had devoted

significant time, energy, and money over the course of

their lives to play varsity football, and they intended

to use the sport as a launching pad for a college scholarship. See also Lee, 505 U.S. at 594–95 (“Attendance

may not be required by official decree, yet it is apparent that a student is not free to absent herself . . . for

absence would require forfeiture of those intangible

benefits which have motivated the student through

youth and all her high school years.”). F.P. believed he

had to make a choice between maintaining his rank as

a starting player and keeping alive his chances of college recruitment or bowing out of prayer. Indeed, when

religious adherence becomes “relevant to a person’s

standing in the . . . community,” like F.P., “the religious

liberty protected by” the First Amendment “is infringed.” Wallace, 472 U.S. at 69 (O’Connor, J., concurring).

The parents and educators among amici share

F.P.’s concerns for their own children and grandchildren. “To assert that high school students do not feel

immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is

17

American high school football is ‘formalistic in the extreme.’ ” Santa Fe, 530 U.S. at 311 (citing Lee, 505 U.S.

at 595); see also id. at 312 (“For many [students], the

choice between attending these games and avoiding

personally offensive religious rituals is in no practical

sense an easy one. The Constitution, moreover, demands that the school may not force this difficult

choice upon these students.”). They, too, understand

that when students are in uniform, either in a huddle

in the locker room or with hundreds of community

members watching from the sidelines, they cannot be

expected to opt out of Petitioner’s worship. As Mr. Peterson explained:

Mr. Kennedy’s post-game prayers, replete

with Christian religious overtones, were delivered by a leader, mentor, and coach to whom

the children looked to for advice, training, and

counsel. . . . [A]s a parent I believe that these

prayers would be viewed by the students as

coercive in nature, regardless of whether they

were explicitly coerced to participate, as any

players who chose not to attend would be

looked upon by their teammates (and potentially by the coaches themselves) as non-team

players.

Ms. Kost verified that “[n]on-religious students felt

compelled to join in prayer on the field after games. . . .

This is simply wrong. No student should feel pressured

or coerced to join in worship with a team. . . . [I]t

should never be the goal of educators to promote conformity of belief.”

18

Several amici explained that while, perhaps, an

adult would have been more comfortable declining to

participate in the highly public team prayer, students

who are “easily susceptible to shame,” would not. See

Lee, 550 U.S. at 593. Ms. McLemore understands from

her 35 years of teaching that

young people want to respect the adults in

their lives and follow their examples. They

also want to be accepted by their peers. When

an adult pushes a student to do something,

such as praying in front of a grandstand of

people on their school football field while in

school uniforms, it shames and embarrasses

those who do not want to participate

In the end, F.P. was persecuted for mustering the

courage not to conform. The coaches were unfriendly

towards him and only “tolerated [him] because [he]

was a good player and had the respect of [his] team.”

“When a person is required to submit to some religious

rite or instruction or is deprived or threatened with

deprivation of his freedom for resisting such unconstitutional requirement[,] [w]e may then set him free or

enjoin his prosecution.” McCollum, 333 U.S. at 232

(Jackson, J., concurring). A ruling in Petitioner’s favor

would enjoin the prosecution of F.P. for his refusal to

“perform a compulsory ritual which offended his convictions.” Id. As Mr. Peterson stated:

The students of our public schools should be

made to feel safe as individuals, without any

fear of coercion or rejection within the greater

societal groups to which they belong. I believe

19

that Mr. Kennedy’s practice of post-game

prayer neglected concern for the belief or nonbelief of all students. . . . People of many

faiths, and no faith at all, live in the Bremerton community and send their children to the

Bremerton public schools; the schools must be

welcoming and inclusive to all.

Six years later, F.P. remains traumatized and believes additional players have declined to come forward with their stories because, like him, “they would

rather forget about that time of their life.” “Coach Kennedy has crippled [his] love for the sport of football.”

Petitioner’s conduct has also deprived F.P. of the lifelong friendships team sports are designed to encourage: “My relationship with [my former] teammate[s]

. . . is forever fractured[.] [W]hatever sense of legacy,

love, pride, and enjoyment we felt playing together is

left behind in Joe K. and his tireless tirade to prove he

is right in continuing to pray among children.”

C. Petitioner’s Self-Interest Demoted Community Members and Students from

Stars to Understudies.

A significant concern of all amici is that Petitioner’s

evangelizing—and this Court’s possible endorsement

of it—relegates many community members to an underclass. Cf. Sigmund Freud, Group Psychology and the

Analysis of the Ego 51 (1922) (“[A] religion, even if it

calls itself the religion of love, must be hard and unloving to those who do not belong to it.”). James Madison—in drafting the First Amendment—understood

20

that coercive state support of religion “degrades from

the equal rank of Citizens all those whose opinions in

Religion do not bend to those of the Legislative authority.” James Madison, Memorial and Remonstrance

Against Religious Assessments (1785); see also Lee, 505

U.S. at 622 (Souter, J., concurring) (“Madison saw that

. . . an official endorsement of religion can impair religious liberty.”).

This sense of “otherness” parallels the religious

persecution enshrined in our nation’s history. Rabbi

Newmark recalls one emblematic incident of being a

religious minority that “paints the backdrop of why her

community is more sensitive” to the risks of othering

created by Petitioner:

A congregant told me that he took his kids to

a local family antique auction. They were

greeted by a huge Nazi banner behind the

auction stand and realized the items being

sold were Nazi and Confederate memorabilia. . . . His twelve-year old shared what

happened in our [religion class]. I then suspended the lesson that was planned for that

day to have a discussion about antisemitism.

I was shocked to learn that all the students

had experienced antisemitism in Bremerton.

Students in elementary and middle school

had pennies thrown at them while walking

down the hall, others said they had been

yelled at in school for “killing Jesus,” and were

called overt slurs. Even a kindergarten student said she had a friend in class tell her that

21

his mom said he couldn’t play with her because she was Jewish.

This experience is why Rabbi Newmark finds it

“alarming that this case has been accepted by the Supreme Court,” because she is “concerned that we’re

headed backwards on the progress that has been made

on the boundaries between church and state[.]” From

her perspective, “if a Jewish student were to choose not

to participate in prayer, with the current political climate, he could be attacked.” There is a long history of

Jewish parents in America instructing their children

to participate in Christian prayer in publicly-funded

settings—because declining to participate creates the

risk of being cast as a second-class citizen or ostracized

by the majority. Moreover, with the existence of social

media, “there is now so many more ways to ostracize a

child.”

Because of students’ susceptibility to peer pressure, there is a likelihood of being “othered” if they decline to participate in the activity of a majority, chilling

their free exercise rights. Ms. Kost and other members

of her social support groups also had concerns about

the ostracization of their own children if they spoke out

against Petitioner’s group prayer:

As a matter of course, I was extremely

worried that if I were seen on television or on

the internet, that my likeness would be connected with my son who was entering Bremerton High School the next year, and he would

subsequently be bullied the way that [other]

member’s children and other atheist students

22

at Bremerton High School were bullied. The

vitriol seen on [comments on] the Kitsap Sun

Facebook page as well as their website was

frightening.

Indeed, “the thought of . . . threats being communicated to [her] son or him being danger was unbearable.

[She] did not feel that [she] could adequately defend

[her] strong belief in the separation of church and state

as long as [her] job or [her] son were in danger.” See

Lee, 550 U.S. at 597–98 (“We know too that sometimes

to endure social isolation or even anger may be the

price of conscience or nonconformity.”). As Mr. Peterson

shared, “The biggest nightmare for a parent” is that his

children will be treated as an outcast—a risk that ran

high because of Petitioner’s conduct.

Had the District allowed Petitioner’s actions to

continue, it would reinforce the fears of amici because

it would have “sen[t] a message to nonadherents that

they [were] outsiders, not full members of the political

community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688

(1984) (O’Connor, J., concurring). The fears of amici

were indeed reasonable.

When Ms. Chamberlin took a public stance in support of the District—her employer—she became “a social pariah.” The situation “forced [her] to come out as

atheist,” something she hadn’t previously done because she was afraid of being ostracized, and resulted

in “one of the most difficult times in her life[.]” Her son

23

also suffered and was “constantly having to defend” his

mother from classmates and community members. The

District’s disapproval of Petitioner’s conduct while accommodating his personal beliefs was a message to

amici that they, too, were valued members of the community. See Lynch, 465 U.S. at 688.

Amici believe that “school football games should

be an opportunity to come together,” but Petitioner’s

group-led prayer instead cultivated “a feeling of separatism” that “sharpen[ed] the consciousness of religious differences at least among some of the children

committed to [his] care.” McCollum, 333 U.S. at 228.

The feelings of “othering” that Petitioner’s actions fostered “are precisely the consequences against which

the Constitution was directed when it prohibited the

Government . . . from becoming embroiled, however innocently, in the destructive religious conflicts of which

the history of even this country records some dark

pages.” Id.; see also id. at n.19 (acknowledging that the

“divergent views” expressed by a variety of amici religious organizations “suggest[ed] that the movement

ha[d] been a divisive . . . influence in the community”).

II.

Petitioner’s Efforts to Steal the Spotlight

Created the Very Divisiveness Establishment

Clause Jurisprudence Counsels Against.

A fundamental role of the Establishment Clause

is to protect communities from the divisive conflicts Petitioner created. McCollum, 333 U.S. at 216–17 (holding that because the public school was “[d]esigned to

24

serve as the most powerful agency for promoting cohesion among a heterogeneous democratic people, the

public school must keep scrupulously free from entanglement in the strife of sects”). Petitioner usurped

Bremerton schools from its community peace-keeping

function. See also id. at 231 (“In no activity of the State

is it more vital to keep out divisive forces than in its

schools[.]”).

Prior to the fall of 2015, Amici admit they “didn’t

feel the polarization that much of the country was experiencing.” Ms. Hight-Breach returned to Bremerton

in 2010 for that reason. Ms. Chamberlin explained that

despite having left her hometown of Bremerton in high

school, she “moved back there as soon as she could”

because it was a community where she “felt safe,

everyone got along, and people accepted everyone’s differences.” That changed when the “Joe Kennedy situation” arose.

Petitioner’s “grandstanding” invited media attention and “outsiders”—people with no interest in the

school district and who were only interested in the division and fear broiling in the community sparked by

Petitioner’s flame. Amici maintain that “most people in

Bremerton understood that the school district did the

right thing.” As Ms. Rebelowski explained, it was clear

to the community that the issue was not about Bremerton High School, but rather a political group that had

“found their perfect poster boy” to bring a case to this

Court. The divisiveness was indeed exacerbated by political interest groups “pumping money into the issue.”

25

Compare Peter O’Cain, Football coach won’t be fired;

can’t participate in post-game prayers, Kitsap Daily

News (Sept. 18, 2015) (quoting Petitioner as stating

that he “was unaware of the amount of legislation [and

Supreme court precedent] regarding student athletics

and religion” and that he would “never want to jeopardize that”)5 with Christine Clarridge, Crowd prays

with coach as he defies school district, Seattle Times

(Oct. 16, 2015) (“Kennedy initially agreed to stop his

postgame prayers, but earlier this week said he

changed his mind after the Texas-based Liberty Institute took up his cause.”).6 Mr. Peterson feels that the

First Liberty Institute is using his former colleague

and has ridden on the coat tails of the 2015 high school

football season to take Petitioner “on a national media

blitz” for the past seven years.

Ms. Rebelowski said that once “Joe started campaigning,” people from outside of Bremerton began

parking in front of her house, waving signs and prayer

flags supporting Petitioner, and erupting the town in

chaos.

Politicians and organizations started fundraising in Kennedy’s name the minute this all

started. First Liberty started a “Support Joe”

Facebook page with one fundraising post after

the next. I wonder where all this money is going. Politicians that don’t even represent this

5

https://www.kitsapdailynews.com/news/football-coach-wontbe-fired-cant-participate-in-post-game-prayers/.

6

https://www.seattletimes.com/seattle-news/education/scoresjoin-coach-in-postgame-prayer/.

26

community came to grandstand about supporting Kennedy just to get more votes in

their own—more religious—districts. Satanists came in to make a point, too. It’s unsettling how quickly it all became so divisive.

And there was just no need for it, he was able

to pray without involving students in the middle of our public football field.

Ms. Hight-Breach similarly recalls that she had

planned to attend the homecoming game in fall of

2015, but when she pulled into the parking lot she saw

“a complete circus.” The Satanists—in from Seattle—

were on one side of the fence; on the other, students

were yelling, throwing rocks and water bottles, and

screaming “F*ck you, Jesus Loves you.” Fearing the inevitable escalation, she returned to the safety of her

home.

During the homecoming game, “the school district

office was ‘phone bombed’ by supporters of school

prayer, thus tying up all the phone lines.”7 Those

fielding calls were called the “spawn of Satan.” Ms.

Chamberlin, who, like many people, spoke out about

the divisiveness online, was falsely accused of being

responsible for Petitioner’s firing. She decided to

write a letter to the editor of the local paper in support

of the District because she saw “something [was] bubbling” that “detracted from the compassionate and

7

Chris Tucker, Satanists’ presence riles up crowd at Bremerton football game, Kitsap Daily News (Oct. 30, 2015) https://www.

kitsapdailynews.com/news/satanists-presence-riles-up-crowd-atbremerton-football-game/.

27

community building culture surrounding Bremerton

High School.”8 Soon thereafter she began receiving

threatening letters, public attacks, and escalating

online harassment, including comments like “I’ll pray

for your house to burn down. I’ll pray for the brakes to

be cut on your car” and “atheists should be rounded up

and killed.” She received a letter on Ku Klux Klan letterhead from a self-described “God fearing white supremacist” warning her to stop her activism: “[B]e very

careful of the trail of horsesh*t you are treading on because it is very . . . dangerous. One might give very

strong thought to abandon such bullsh*t.” As she recalls, “Within a couple weeks, everyone knew my name.

It was a lot, and very scary.” Ms. Kost stated that the

fear of similar violence resulted in suppression of

voices from Bremerton’s non-theist advocacy groups.

The broader polarization in the country continues

to fuel the divisiveness in Bremerton sparked by Petitioner’s actions. As this Court has observed, “the potential for seriously divisive political consequences . . . is

certainly a ‘warning signal’ not to be ignored.” Comm.

for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.

756, 798 (1973) (citation omitted). Thirty years ago,

this Court believed that the “ ‘fears and political problems’ that gave rise to the Religion Clauses in the 18th

century [were] of far less concern,” Lynch, 465 U.S. at

8

Jennifer Chamberlin, My Turn: Schools without pressure

to pray, Kitsap Sun (Oct. 21, 2015), https://archive.kitsapsun.com/

opinion/my-turn—schools-without-pressure-to-pray-ep-1283814315354461301.html/.

28

686 (citation omitted), but such “fears and political

problems” have returned.

“[T]oday, as many have noted, our nation is more

polarized than it has been at any time since the Civil

War.” Judge Thomas B. Griffith, The Degradation of

Civic Charity, 134 Harv. L. Rev. F. 119, 121 (2020) (internal quotation marks omitted). Religion is a central

component of the polarity. Samuel L. Perry, American

Religion in the Era of Increasing Polarization, Ann.

Rev. of Soc., Vol. 48 (Forthcoming July 2022). While

“[o]rdinarily political debate and division . . . are normal and healthy manifestations of our democratic system of government, . . . political division along

religious lines was one of the principal evils against

which the First Amendment was intended to protect.”

Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).

Rabbi Newmark is concerned that given this increased polarization—and a national rise of antisemitism—a decision favoring Petitioner could embolden

hate groups that have traditionally targeted her faith:

“Anytime the rights of someone of a minority religion

feel compromised, when their First Amendment rights

are chipped way, it gives power to those who are looking for ways to promote hateful agendas. I think a ruling in favor of Kennedy would make antisemitism in

this nation worse.” She rightfully fears for her congregants’ safety:

We know what happens when people who are

hate-filled are given oxygen, the flame gets

bigger. Even though the act in this case seems

29

small, if Kennedy is allowed to infringe on the

rights of our community, those that revel in

decreasing our rights will feel empowered to

ask for more—to push the limit further. Hate

is very contagious. Anything that promotes

one religion over another—instead of promoting tolerance and understanding of boundaries—gives fuel to this very ugly time in our

country.

See also Van Orden v. Perry, 545 U.S. 677, 703 (2005)

(Breyer, J., concurring in the judgment) (plurality opinion) (“And, in today’s world, in a Nation of so many

different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to

focus attention [on prayer] is certainly likely to prove

divisive[.]”).

“When the government puts its imprimatur on a

particular religion, it conveys a message of exclusion

to all those who do not adhere to the favored beliefs.”

Lee, 505 U.S. at 606 (Blackmun, J., concurring) (“Only

‘[a]nguish, hardship and bitter strife’ result ‘when zealous religious groups struggl[e] with one another to

obtain the Government’s stamp of approval.’ ” (Quoting Engel v. Vitale, 370 U.S. 421, 429 (1962))). Such a

struggle can “strain a political system to the breaking

point.” Walz, 397 U.S. at 694. Indeed, amici now fear

“the can of worms” that would be opened by a ruling in

Kennedy’s favor, and do not believe Bremerton “can afford” to deal with further political division as a result

of such a ruling.

---------------------------------♦---------------------------------

30

CONCLUSION

“Our constitutional system” is designed so that

“unities among our people [are] stronger than our diversities.” McCollum, 333 U.S. at 231. In his self-proclaimed search for personal spiritual enlightenment,

Petitioner disregarded the rights of his fellow community members in favor of his own. In the words of one

of the players Petitioner was paid to lead: “Kennedy

has used the Bremerton Knights Football for seven

years to push his own religious agenda and lie to the

American Public that he did so privately . . . and [for]

four years I knelt for him in solidarity as he prayed so

there would be no objection to me playing football.” A

ruling in Petitioner’s favor would send a message to

community members that their rights are secondary to

his, and it would condone the mistreatment of those

who do not conform with Petitioner’s personal views.

This is the very result that the First Amendment was

designed to prevent. Lee, 505 U.S. at 592 (“[I]f citizens

are subjected to state-sponsored religious exercises,

the State disavows its own duty to guard and respect

that sphere of inviolable conscience and belief which is

the mark of a free people.”). Members of the Bremerton

community respectfully ask that this Court affirm the

Ruling of the Ninth Circuit and uphold that “the delivery of a [postgame] prayer has the improper effect of

31

coercing those present to participate in an act of religious worship.” Santa Fe, 530 U.S. at 312.

Respectfully submitted,

ANDREW D. LEVY

Counsel of Record

ANTHONY J. MAY

LAUREN A. DIMARTINO

BROWN, GOLDSTEIN & LEVY, LLP

120 E. Baltimore Street,

Suite 2500

Baltimore, Maryland 21202

Tel: (410) 962-1030

Fax: (410) 385-0869

adl@browngold.com

amay@browngold.com

ldimartino@browngold.com

Counsel for Amici Curiae