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 OF AMICI CURIAE LAMBDA LEGAL

DEFENSE AND EDUCATION FUND, INC. £7 AL.

IN SUPPORT OF RESPONDENT

THOMAS A. ZACCARO JENNIFER C. PIZER

Counsel of Record LAMBDA LEGAL

PAUL HASTINGS LLP DEFENSE AND

515 8. Flower St., 25th Floor EDUCATION FUND, INC.

Los Angeles, CA 90071 42212 Wilshire Blvd.

T: (213) 683-6000 Los Angeles, CA 90010

thomaszaccaro@paulhastings

com

(Additional counsel listed on inside cover)

Counsel for Amici

March 31, 2022

GREGORY R. NEVINS

LAMBDA LEGAL

DEFENSE AND

EDUCATION FUND, INC.

1 West Court Sq., Ste. 105

Decatur, GA 30030

KYLE M. JONES

PAUL HASTINGS LLP

695 Town Center Dr.,

17th Floor

Costa Mesa, CA 92626

STEPHEN B. KINNAIRD

KECIA REYNOLDS

PAUL HASTINGS LLP

2050 M St. NW

Washington, D.C. 20036

RACHEL OFORI

PAUL HASTINGS LLP

200 Park Ave.

New York, NY 10166

1

TABLE OF CONTENTS

Page

TABLE OF CONTENTS 2.0... eccceseceeeceeeeeeeeeees 1

TABLE OF AUTHORITIES... ccc cecee ees 11

INTERESTS OF AMICT CURIAE A... ccccccccccccccceeetteees ]

SUMMARY OF THE ARGUMENT ..... ee 4

ARGUMENT ou... ccccsscccesesseeeeeessseeceseseeseeseseeseees 5

I. PETITIONERS CHOICE OF PUBLIC

RELIGIOUS CONDUCT WHILE IN HIs

PUBLIC SCHOOL ROLE WAS

INCONSISTENT WITH THE

ESTABLISHMENT CLAUSE AND

CREATED A PARTICULAR LIKELIHOOD

OF HARMFUL IMPACTS ON LGBTQ

STUDENTS. wo. ecccccccccccessssssssssssceeeesesseeees 5

A. Petitioner’s Public Conduct Created the

Appearance That Respondent

Unconstitutionally Endorsed His

PYAYELS......ccccccccccccccccccccccccsseeeseeessesssseseeeseseceseeees 9

B. Petitioner's Role as a Football Coach

Amplified the Unconstitutionally

Coercive Impact of His Public Prayer,

With a Particular Likelihood of Harmful

Coercive Impacts on LGBTQ Students. ...15

CONCLUSION ooo. ccccccesceceseeeeeneeesaeeeeaeeeeeeeeeeeeas 19

1

TABLE OF AUTHORITIES

Page(s)

Cases

Berry v. Dep’t of Soc. Servs.,

447 F.3d 642 (9th Cir. 2006)... cccccccccccccceeeeeeeeseeees 18

Borden vy. Sch. Dist. of Twp. of East

Brunswick,

523 F.3d 153 (3d Cir. 2008)... ecccecccsseesesstetteeees 9,17

Christian Legal Soc’y Chapter of the Univ. of

Cal., Hastings Coll. of the L. v. Martinez,

S61 U.S. 661 (2010) oc cccccccesssssesssssssseeeeeeeeeeeeees

EEOC vy. Abercrombie & Fitch Stores,

S75 U.S. 768 (2015) .o.ccccccccccccccccceeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees

Edwards yv. Aguillard,

A82 U.S. 578 (1987) .....ccececcccccsseesssssstccceeeeeeeeeeeees 7, 15,17

Engel v. Vitale,

370 U.S. 421 (1962) ooo. eeeeeeccccccecccccccceeeeseesessseessssssaaaees 6

Fulton vy. City of Philadelphia,

141 S. Ct. 1868 (2021) woo. ccccccccceeeeseessssssssssssaaaes

Kennedy v. Bremerton Sch. Dist.,

No. 16-cv-05694 (W.D. Wash. Nov. 13,

OA) re 19

Lawrence v. Texas,

539 U.S. 558 (2003) ....ccccccccccccccseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees

Lee v. Weisman,

SOS U.S. 577 (1992) ooo cccccssssssseccceececeeeseseeecceeeeeeeas passim

iil

Masterpiece Cakeshop v. Colo. Civ. Rts.

Comm’n,

138 S. Ct. 1719 (2018) woe eeeeeeeeeeeeeee

McCreary Cnty. v. Am. Civ. Liberties Union,

545 U.S. 844 (2005) cecccccseecseecsessseesseesseesseesseen

Nabozny v. Podlesny,

92 F.3d 446 (7th Cir. 1996) veccecscecssssssessseeseeen

Obergefell v. Hodges,

576 U.S. 644 (2015) cecseccseecseecseesseesseessessseesseen

Our Lady of Guadalupe Sch. v. Morrissey-

Berru,

140 S. Ct. 2049 (2020) oo eee eeeeeeeeeeeeeeees

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

530 U.S. 290 (2000) veccccseecseecsessseesseesseesseeseeen

Town of Greece v. Galloway,

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

Wallace v. Jaftree,

AT2 U.S. 38 (1985) voeecccccccccccssscccccecessseees

Secondary Authorities

Meredith Cash, JuJ/u Smith-Schuster

Got Beat Up and Bullied by the Bengals

to ‘Let Him Know Where He Stands’

After He Danced on Their Logo for

TikTok, INSIDER (Dec. 22, 2020) ......cccceeeeeees

HIST. Soc’y OF PA., /nterethnic

Relations, Nativism, Primary Sources,

1V

HRC Foundation, Faith Positions, HUM.

RTS. CAMPAIGN. ...........ccccceccecceccecceccccecceccecceceece

HRC Foundation, Stances of Faiths on

LGBTQ Issues: Evangelical Lutheran

Church in America, HUM. RTS.

CAMPAIGN, ........ccceceecececececccececececscsccsescecececeens

HRC Foundation, Stances of Faiths on

LGBTQ Issues: Presbytyrian Church,

HUM. RTS. CAMPAIGN, .............cecececeecececececeeees

JOSEPH G. KOSCIW ET AL., GLSEN, THE

2019 NATIONAL SCHOOL CLIMATE

SURVEY: THE EXPERIENCES OF LESBIAN,

GAY, BISEXUAL, TRANS-GENDER, AND

QUEER YOUTH IN OUR NATION’S SCHOOLS

(QO19) ceccecccccccccssssccccccccesscscccesecessssccceeeeesssasecs

ILAN H. MEYER ET AL., LGBTQ PEOPLE

IN THE US: SELECT FINDINGS FROM THE

GENERATIONS AND TRANSPOP STUDIES

(QOD) vecccccccccccccssscccccccceessscccccececstssssccececeestsasees

Mickey Guyton Sings the National

Anthem at Super Bowl LVI, YOUTUBE

(Feb. 13, 2022) .....cccccccccccsssscccccccceceeesstscscceeeeees

RELIGIOUS EXEMPTION ACCOUNTABILITY

PROJECT, THE LGBTQ STUDENT DIVIDE:

THE STATE OF SEXUAL AND GENDER

MINORITY STUDENTS AT TAXPAYER-

FUNDED CHRISTIAN COLLEGES (2021) .........05.

Vv

Zachary M. Schrag, Nativist Riots of

1844, THE ENCYCLOPEDIA OF GREATER

PHILA, ...ccccccccecececcecececcecscnccccscesecescesesescusesescusesescuseseeeuss 6

Terrell Owens Celebrates on Dallas

Star and Gets HIT. YOUTUBE (Nov. 13,

DOL) ...cecccccccccccccceesesseeceeecececcececccceccecceeuaaateeeeeeeeeeeeeecs 11

VILL. UNIV. FALVEY MEM’L LIB.,

Philadelphia Ri0ts oc cccccccccccc ccc ccc cess eccesceececueseeseesesceeees 6

1

INTERESTS OF AMICI CURIAE

Amici Curiae are Lambda Legal Defense and

Education Fund, Inc. (“Lambda Legal”), the Human

Rights Campaign (“HRC”), COLAGE, Family

Equality, GLSEN, Keshet, PFLAG, and Equality

California (“EQCA”), national and _ statewide

organizations advocating to reduce discrimination

and to increase safety, acceptance, and inclusion of

lesbian, gay, bisexual, transgender, and queer

(“LGBTQ”) people and their families, especially

including students and other young people. Amuicus

People For the American Way (““PFAW”) is a national

organization that shares these objectives as well as

related concerns about preventing discrimination and

promoting religious liberty.

Amicus Lambda Legal is the Nation’s oldest

and largest legal organization advocating for full

recognition of the civil rights of LGBTQ people and

everyone living with HIV, through impact litigation,

education, and policy advocacy. Lambda Legal has

participated as party counsel or amicus curiae in

many cases navigating issues of religious liberties and

rights to freedom from discrimination. See, e.g,

Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021);

Masterpiece Cakeshop v. Colo. Civ. Rts. Comm'n,

138 S. Ct. 1719 (2018); EEOC v. Abercrombie & Fitch

Stores, 575 U.S. 768 (2015); Obergefell v. Hodges, 576

U.S. 644 (2015); Christian Legal Soc’y Chapter of the

Univ. of Cal, Hastings Coll. of the L. v. Martinez, 561

U.S. 661 (2010); Lawrence v. Texas, 539 U.S. 558

(2003); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir.

1996).

2

The Human Rights Campaign (“HRC”),

representing more than three million members and

supporters, strives to end discrimination against

LGBTQ people and realize a world in which LGBTQ

people are ensured of their basic equal rights and can

be open, honest, and safe at home, at work, in school,

and in every community.

COLAGE is the only national organization

expressly dedicated to supporting people with one or

more LGBTQ parents or other caregivers, uniting

them for more than thirty years into a network of

peers and supporting them as they nurture and

empower each other to be skilled, self-confident, and

just leaders in their communities.

Family Equality is a national organization

committed to ensuring legal and lived equality for

LGBTQ families, and for those who wish to form them,

through building community, changing hearts and

minds, and driving policy change. For over 40 years,

Family Equality has cultivated connections between

LGBTQ family members, parents, children,

erandparents, and grandchildren, reaching across the

country and raising voices toward fairness for all

families. The organization 1s committed to changing

attitudes and policies to ensure that all families are

respected, loved, and celebrated. Family Equality's

work includes a focus on supporting and empowering

LGBTQ families in schools, by developing and

distributing school-related resources, building

community amongst LGBTQ families, and advancing

legal protections to make schools safer for LGBTQ

families nationwide.

3

GLSEN was founded by a group of teachers in

1990 who knew that educators play key roles in

creating affirming learning environments for LGBTQ

youth. Today, GLSEN’s national network comprises

students, families, educators, and education

advocates working to create safe schools to ensure

that LGBTQ students can learn and grow in school

environments free from bullying and harassment.

GLSEN conducts extensive, original research to

inform evidence-based policies and developmentally

appropriate resources for protecting LGBTQ students

and all students of marginalized identities.

Keshet is a national organization working for a

world in which all LGBTQ Jews and their families can

live with full equality, justice, and dignity. By

strengthening Jewish communities and equipping

Jewish organizations with the skills and knowledge to

make all LGBTQ Jews feel welcome, Keshet seeks to

ensure the full equality of all LGBTQ Jews and their

families in Jewish life, including by advocating for

LGBTQ civil rights nationwide. With particular

relevance to this case, Keshet prioritizes creation of

spaces in which all queer Jewish youth feel seen and

valued and can develop their leadership, training

Jewish educators to prevent anti-LGBTQ bullying,

and mobilizing Jewish communities to protect LGBTQ

civil rights while celebrating LGBTQ Jewish identity.

PFLAG was founded in 1973 after the simple

act of a mother publicly supporting her gay son. It

now is the nation's largest organization for LGBTQ

people, their parents and families, and allies. With

nearly 400 chapters and 250,000 members and

supporters crossing multiple generations of families

4

in major urban centers, small cities, and rural areas

across America, PFLAG is committed to creating a

world where diversity is celebrated and all people are

respected, valued, and affirmed.

Founded in 1999, EQCA is the nation’s largest

statewide LGBTQ civil rights organization. It brings

the voices of LGBTQ people and allies to institutions

of power in California and across the United States,

striving to create a world that is healthy, just, and

fully equal for all LGBTQ people. EQCA advances

civil rights and social justice by inspiring, advocating,

and mobilizing through an inclusive movement that

works tirelessly on behalf of those it serves, such as by

participating frequently in litigation in support of the

rights of LGBTQ persons, including the organization's

members in California and across the United States.

PFAW is a nonpartisan civic organization

established to promote and _ protect civil and

constitutional rights and values, including religious

liberty and freedom from discrimination. Founded in

1981 by a group of civic, educational, and religious

leaders, PFAW now has 1.5 million members and

supporters nationwide. Over its history, PFAW has

conducted extensive education, outreach, litigation,

and other activities to promote these values. PFAW

strongly supports LGBTQ rights and the principle

that public schools should be open and welcoming to

all students without regard to LGBTQ status or

religious beliefs.

Amici submit this brief in support of

Respondent.!

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

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

in part, and no party or counsel for a party, or any other person

other than amici curiae or its counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. The parties have filed blanket consents to the filing of

amicus curiae briefs. See Sup. Ct. R. 37.3.

6

SUMMARY OF THE ARGUMENT

Public schools bring together young people from

various backgrounds and traditions, including some

LGBTQ students who are religious, some who may not

be, and some who are still figuring out their

spirituality or identity. This Court has long

scrutinized the involvement of school officials in

prayer on school grounds—not only to reach a careful

balance among First Amendment equities—but also

to avoid enmeshing the government in _ interdenominational disputes or exacerbating sectarian

conflict in schools. Historically, this proved to be a

serious concern, for example in the so-called

Philadelphia “prayer riots” of 1844. To this day,

public schools play a critical role in our pluralistic

society and during a formative (and often susceptible)

period in the lives of students.

The Court should be equally attentive to these

values in the case at bar. Prayer practices—like

Petitioner's—on public school grounds by public

school employees in their official capacity contravene

the Establishment Clause’s mandates _ that

sovernment neither insert itself into religious debate

nor create an impression that particular religious

beliefs and communities’ receive preferential

treatment. Allowing public religious practices like

Petitioner’s sends the unmistakable message that

only those who conform and participate will enjoy full

advantage of all the benefits that the public school

offers.

Such practices not only erode Establishment

Clause values, but also are likely to burden the Free

7

Exercise rights of people with different religious

beliefs and traditions, specifically including many

LGBTQ people of various faiths, as well as people who

do not identify as religious, all of whom must be free

to believe as they wish, without government-endorsed

pressure or interference.

ARGUMENT

I. PETITIONER'S CHOICE OF PUBLIC

RELIGIOUS CONDUCT WHILE IN HIS

PUBLIC SCHOOL ROLE #£WAS

INCONSISTENT WITH THE

ESTABLISHMENT CLAUSE AND

CREATED A PARTICULAR

LIKELIHOOD OF HARMFUL IMPACTS

ON LGBTQ STUDENTS.

Amici write to provide a voice for LGBTQ

students, and students with LGBTQ family members

and other family members, impacted by particular

forms of religious speech at public schools. Their

perspective is critical to this matter because these

students are at particular risk of suffering from the

insider-outsider dynamic propagated by _ schoolsanctioned public prayer. See, e.g., Santa Ke Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000).

Historically, many LGBTQ students and_ their

families have both struggled with their painful

rejection by certain religious denominations and yet

experienced spiritual fulfillment in the religious

journey they charted. Because of this history, many

LGBTQ people are especially alert and wary of

situations in which the government appears to

endorse particular religious exercise or where

8

circumstances indicate religious coercion in a

sovernment-controlled context.

Students who identify as LGBTQ and their

families have directly felt the impact of 75 years of

Supreme Court precedent interpreting the

Establishment Clause to require “governmental

neutrality between religion and religion, and between

religion and nonreligion.” McCreary Cnty. v. Aim. Civ.

Liberties Union, 545 U.S. 844, 860 (2005) Gnternal

citations omitted); see also Engel v. Vitale, 370 U.S.

421, 429 (1962) (the Founders knew “one of the

sreatest dangers to the freedom of the individual to

worship in his own way lay in the Government's

placing its official stamp of approval upon one

particular kind of prayer or one particular form of

religious services.”). Our Nation’s history provides

many examples of the Founders’ wisdom on this

point.2. Accordingly, the Establishment Clause

“precludels] government from conveying or

attempting to convey a message that religion or a

particular religious belief is favored or preferred.”

2 The Philadelphia “prayer riots,’ which refers to the wave of

anti-Catholic and nativist violence which erupted from an interdenominational dispute about which version of the Bible to read

for Catholic versus Protestant students, is but one of the early

cautionary examples. See generally Zachary M. Schrag, Nativist

Riots of 1844, THE ENCYCLOPEDIA OF GREATER PHILA.,

https://philadelphiaencyclopedia.org/essays/nativist-riots-of-

1844/ (last visited March 29, 2022); see also Interethnic

Relations, Nativism, Primary Sources, THE HIST. SOC’Y OF PA.,

https://web.archive.org/web/20061004181326/http://www.hsp.or

e/default.aspx?id=394 (last visited March 29, 2022); Philadelphia

Fiots, VILL. UNIV. FALVEY MEM’L LIB., https://digital.library.

villanova.edu/Item/vudl:255898 (last visited March 29, 2022).

9

Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O’Connor,

J., concurring); see also Lee v. Weisman, 505 U.S. 577,

587 (1992) (“{A]lt a minimum, the Constitution

cuarantees that government may not coerce anyone to

support or participate in religion or its exercise.”).

This Court is “particularly vigilant in

monitoring compliance with the Establishment

Clause in elementary and secondary schools” because

of the “great authority and coercive power’ the state

exerts on students. Hdwards v. Aguillard, 482 U.S.

578, 583-84 (1987); Lee, 505U.S. at 593-94.

Specifically, this Court has been concerned that public

prayer on school grounds by school officials creates an

insider-outsider dynamic among the student body,

faculty, and school staff, where the religious majority

may receive, or be perceived to receive, benefits that

nonconforming religious minorities do not. Santa Fe,

530 U.S. at 309. The clear hierarchy of authority (e.,

between coaches and teachers, on the one hand, and

students, on the other) and need for peer acceptance

among children and adolescents reinforces and

amplifies this dynamic in schools. As a result, this

Court has been unpersuaded by overly formalistic

arguments that student participation in prayer is

“voluntary” and non-coercive when led by school

leaders during school-sponsored events. See Santa

Fe, 5380 U.S. at 312.

3 This Court has further recognized that “[rlesearch in

psychology supports the common assumption that adolescents

are often susceptible to pressure from their peers towards

conformity, and that the influence is strongest in matters of

social convention.” Lee, 505 U.S. at 593 (citing studies).

10

Beyond the perilous dilemma between coercion

and exclusion, LGBTQ students, whatever their own

faith beliefs, often see their identity, existence, and

place in particular religious worldviews debated

fiercely among religious’ sects that disagree

vehemently about how LGBTQ persons are to be

treated.4 Whether they take place in religious spaces

or the community as a whole, these disagreements

create anxiety if not fear for many LGBTQ young

people. But when the government appears to endorse

religious beliefs that fault or exclude LGBTQ people,

it is both gravely problematic and unconstitutional.

Accord Santa Fe, 530 U.S. at 311 (explaining that

“divisiveness along religious lines in a public school

setting’ 1s “a result at odds with the Establishment

clause”); Lee, 505 U.S. at 589 (“The design of the

Constitution is that preservation and transmission of

4 Perceptions and treatment of LGBTQ persons and their

families have certainly improved, but by no means universally.

As an example, some faiths allow LGBTQ persons to serve as

leaders of congregations. See, e.g., HRC Foundation, Stances of

Faiths on LGBTQ Issues: Evangelical Lutheran Church in

America, HUM. RTS. CAMPAIGN, https://www.hrc.org/resources/

stances-of-faiths-on-lgbt-issues-evangelical-lutheran-church-inamerica (last visited Mar. 29, 2022) (The Evangelical Lutheran

Church in America has ordained “LGBTQ ministers . . . since

2010”); HRC Foundation, Stances of Faiths on LGBTQ Issues:

Presbyterian Church, HUM. RTS. CAMPAIGN https://www.hrc.org/

resources/stances-of-faiths-on-lgbt-issues-presbyterian-churchusa (last visited Mar. 29, 2022) (“In 2010 the [Presbyterian

Church (USA)] approved an amendment that allows ordination

of openly LGBTQ ministers.”). Others, however, do not. See

generally HRC Foundation, Faith Positions HUM. RTS.

CAMPAIGN, https://www.hrc.org/resources/faith-positions (last

visited Mar. 29, 2022).

11

religious beliefs and worship 1s a responsibility and a

choice committed to the private sphere.”).5

This Court applies two tests to determine

whether an Establishment Clause violation has

occurred: (1) the Endorsement Test, and (2) the

Coercion Test. Either test is sufficient to prove a

violation. Borden v. Sch. Dist. of Twp. of East

Brunswick, 523 F.3d 158, 175 (8d Cir. 2008).

Petitioner’s religious conduct here is impermissible

under both of them.

A. Petitioner’s Public Conduct Created

the Appearance That Respondent

Unconstitutionally Endorsed Huis

Prayers.

The Endorsement Test “precludels]

sovernment from conveying or attempting to convey a

message that religion or a particular religious belief is

favored or preferred.” Wallace, 472U.S. at 70

(O’Connor, J., concurring). Under the test, if an

objective observer, with “knowledge of the history and

context of the display,” “would perceive it as a state

endorsement of prayer in public schools,” then the

prayer violates the Establishment Clause. Borden,

523 F.8d at 177-78; Wallace, 472 U.S. at 76. The

Endorsement Test analysis is thus factually driven

and highly dependent on context, and the purported

5 See also Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049, 2060 (2020) (“State interference in that sphere

[ze religion] would obviously violate the free exercise of

religion.”).

12

intention of the government actor to conduct a private

prayer is not dispositive.

In this case, Petitioner chose to pray on the 50-

yard line immediately following public schoolsponsored games during which he had played a key

adult leadership role, while still wearing the school

insignia and surrounded by public school students.

Pet. App-245-46. The timing and location of

Petitioner’s conduct is particularly important because

it highlights the public nature of Petitioner’s worship

and the likelihood that Respondent would be

perceived as endorsing this conduct if Respondent

allowed it to continue given the nexus between

Petitioner’s prayers and his role as a football coach.

See Pet. App-20 (“At issue was—in every sense of the

word—a demonstration, and, because Kennedy

demanded that it take place immediately after the

final whistle, it was a demonstration necessarily

directed at students and the attending public.”).

Petitioner chose to pray at the 50-yard line—

not only hallowed ground on the gridiron but also the

most prominent location in the stadium. Before every

game, players meet and shake hands at the 50-yard

line in a show of sportsmanship, and referees conduct

a coin toss for kickoff at this prominent location. At

many stadiums, including Bremerton High School,

the 50-yard line depicts the school insignia signifying

that this is the home team’s domain.® Reprisals may

6 See Picture of Bremerton School District Football Field,

BREMERTONSCHOOLS.ORG, https://www.bremertonschools.org/c

ms/lib/WA01001541/Centricity/Domain/4/Turf%20Dedication%2

OPromo.jpg (last visited March 29, 2022).

13

occur over an opposing team’s disrespect to a home

team’s emblem on the 50-yard line.” And in the 2022

Super Bowl (as in many others), the national anthem

was performed in front of the American flag on the 50-

yard line, which further underscores the centrality of

the location to players and spectators alike.®

Had Petitioner truly desired to “sayll a brief,

quiet prayer by himself’ (Pet. i), he obviously could

have chosen a less conspicuous place, including any of

the reasonable accommodations’ offered by

Respondent, without involving student-athletes and

other participants at the most prominent and

symbolic place to do so (ze, the 50-yard line

immediately after the game). Instead, the timing and

location selected for the prayer was “clothed in the

traditional indicia of school sporting events’ that the

Santa Fe Court held to create “[tlhe actual or

perceived endorsement of the message.” 530 U.S. at

7 The experiences of National Football League wide receivers

Terrell Owens and JuJu Smith Schuster are infamous examples

of this phenomenon. See Terrell Owens Celebrates on Dallas

Star and Gets HIT. YouTUBE (Nov. 13, 2017),

https://m.youtube.com/watch?v=cshHg sWyVo (showing an

angry reaction to Owens’s touchdown celebration on opposing

team’s logo on the 50-yard line); Meredith Cash, JuJu Smith-

Schuster Got Beat Up and Bullied by the Bengals to ‘Let Him

Know Where He Stands’ After He Danced on Their Logo for

TikTok, INSIDER (Dec. 22, 2020), https://news.yahoo.com/

juju-smith-schuster-got-beat-190803166.html (discussing angry

responses of Smith-Schuster’s opponents to his “disrespectful”

practice of dancing on rival teams’ logos,

including those on the 50-yard line).

8 See Mickey Guyton Sings the National Anthem at Super Bowl

LVI, YOUTUBE (Feb. 13, 2022), https://www.youtube.com/watch

°v=ucr-OJoOlig.

14

307. “School sponsorship of a religious message is

impermissible because it sends the ancillary message

to members of the audience who are non-adherents

that they are outsiders, not full members of the

political community, and an accompanying message to

adherents that they are insiders, favored members of

the political community.” /d. at 309. Accordingly, the

timing and location of Petitioner’s conspicuous

religious conduct would lead any objective and

reasonable observer to conclude that the school

district endorsed Petitioner’s religious beliefs at the

expense of persons who hold other religious beliefs

and who identify as nonreligious.

For many students who identify as LGBTQ or

who have LGBTQ family members, such perceived

endorsement creates particular risks of adding to

their sense of marginalization and alienation from the

larger public school community. More specifically, the

perceived or real government endorsement of

religious practices that include religious rejection of

minority sexual or gender identities is likely to have

the effect of making these students feel like outsiders

who are not entitled to the full privileges of true

members of their school communities.!° Such feelings

9 In fact, reasonable observers did believe the school district

endorsed Petitioner’s on-field prayers. See, eg., JA 229

(Transcript Excerpts from July 12, 2019, Deposition of J. Polm)

(testifying that an opposing coach told him that “it was pretty

cool how [the District] would allow our coaches [ie., Petitioner]

to go ahead and invite other teams’ coaches and players to pray

after a game.”).

10 See, e.g., RELIGIOUS EXEMPTION ACCOUNTABILITY PROJECT,

THE LGBTQ STUDENT DIVIDE: THE STATE OF SEXUAL AND

GENDER MINORITY STUDENTS AT TAXPAYER-FUNDED CHRISTIAN

COLLEGES 2—4 (2021), https://www.thereap.org/_files/ugd/

15

of marginalization or alienation in turn can lead to

negative scholastic outcomes.!!

Although many LGBTQ people of all ages are

religious,!2, some large and influential religious

denominations still exclude individuals who

acknowledge their LGBTQ identity. While religious

institutions of course are free to make their own

theological and doctrinal determinations, that fact

brightly spotlights the importance of the

Establishment Clause’s promise to prevent both the

actuality and the appearance of government

endorsement of religious doctrines on these subjects.

For all people of faith who hold their own beliefs as

precious and core to their identity, feeling pressured

Oae2d2_9b01481f670f45819315aac806b14336.pdf (noting,

among other things, that “[slexual and gender minority students

are 15 times more likely to report that their sexuality or gender

identity has prevented them from feeling accepted by others on

their college campus compared to their peers”).

11 See, e.g, JOSEPH G. KOSCIW ET AL., GLSEN, THE 2019

NATIONAL SCHOOL CLIMATE SURVEY: THE EXPERIENCES OF

LESBIAN, GAY, BISEXUAL, TRANS-GENDER, AND QUEER YOUTH IN

OuR NATION’S SCHOOLS 46-47 (2019), https://www.glsen.org/

sites/default/files/2021-04/NSCS19-FullReport-032421-

Web_0.pdf (discussing survey results and related research about

LGBTQ students who indicated they may not complete high

school due to alienating conditions in their schools).

12 See id. 11 tbl. M.1 (finding approximately one third of survey

participants identified with a religion); ILAN H. MEYER ET AL.,

LGBTQ PEOPLE IN THE US: SELECT FINDINGS FROM THE

GENERATIONS AND TRANSPOP STUDIES 3, 16-17 (2021),

https://wilhamsinstitute.law.ucla.edu/wp-content/uploads/

Generations-TransPop-Toplines-Jun-2021.pdf (reporting

approximately 55% of LGBTQ adults “identified with some

religion’).

16

to accept and participate in a public religious practice

that appears to have government endorsement easily

can run against not only their own religious beliefs,

but also their deeply-held perception of themselves.

For LGBTQ students in particular, many of whom

already feel themselves to be on the outskirts of their

community, such pressure to conform and participate

in religious activity may cause them to feel doubly

ostracized if their own public school is permitted to

lend its official imprimatur to sectarian beliefs and

worship practices. This result is unacceptable, no

matter the apparent intent behind the religious

expression at issue. See Santa Fe, 530 U.S. at

307-09.

Even if Petitioner’s prayers steered clear of

sensitive social issues, they still offend the

Establishment Clause. According to Petitioner, his

postgame ritual was aeprayer of “thanks,”

“thanksgiving,” or “gratitude” (Br. for Pet. at 1, 4, 8.

12, 14, 21, 27); specifically, it was a “prayer of

thanksgiving for player safety, sportsmanship, and

spirited competition.” /d. at 4. This seeming attempt

to depict the prayers as harmless expressions of

cratitude is unavailing. Religious creeds have

profoundly different perspectives on which

occurrences are and are not the work of God. One of

the great chasms that exists along the vast spectrum

of religious traditions is the extent to which humans

are understood to have free will to control all or some

aspects of their destiny, or whether a divine being has

predetermined or will determine each event. People

of different faiths on a team—or even within a

coaching staff—might well disagree strongly about

whether gratitude should be expressed about the

17

number and severity of injuries suffered by each of the

competing teams, whether particular scores were due

to skill, effort, luck, or a Divine assist, and the quality

of cohesion and sportsmanship each of the teams

displayed. As such, a public postgame prayer cannot

be endorsed by the government without violating the

Establishment clause.

B. Petitioner’s Role as a Football Coach

Amplified the Unconstitutionally

Coercive Impact of His Public

Prayer, With a Particular Likelihood

of Harmful Coercive Impacts on

LGBTQ Students.

The other applicable test is the Coercion Test.

This Court has long recognized that “public pressure,

as well as peer pressure... though subtle and

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

that “for the dissenter of high school age, who has a

reasonable perception that she 1s being forced by the

State to pray in a manner her conscience will not

allow, the injury is no less real.” Lee, 505 U.S. at 593—

94; see also Edwards, 482 U.S. at 583-84 (noting that

in the public school context, this Court has been

“particularly vigilant” about coercion concerns

because “the classroom [may] not purposely be used to

advance religious views” yet “[sltudents in such

institutions are impressionable and their attendance

is involuntary.”); see also Town of Greece v. Galloway,

572 U.S. 565, 590 (2014) (recognizing that young

people are “readily susceptible to religious

indoctrination or peer pressure’ in ways that mature

adults are not.). Under the Coercion Test, “the State

may not, consistent with the Establishment Clause,

18

place primary and secondary school children” in the

dilemma of “participating, with all that implies, or

protesting” a religious exercise at public school. Lee,

505 U.S. at 593-94.

The story of Jessamyn Morales, an active

participant in the programs of Amicus COLAGE,

encapsulates the concerns at the heart of this Court’s

public school Establishment Clause decisions.!2 Ms.

Morales was raised in Midland, Texas. She grew up

the daughter of not one, but two gay couples after both

of her parents came out as LGBTQ and entered into

same-sex relationships. When she _ attended

elementary school, her school district required a

minute of silent prayer each morning. Ms. Morales’s

decision not to participate in these prayers had a

tangible, negative effect on her time in school. Her

teachers informed her that her non-participation was

disrespectful, punished her for her choice not to

participate, and, giving effect to their personal anti-

LGBTQ views, encouraged her to use this prayer to

counteract the ill effects of her parents’ sexual

orientation. Her peers, following the lead of these

teachers, isolated her from social activities.

Ms. Morales endured similar difficulties in high

school, where the adult leaders of her swim team

required students to participate in prayers before

competitions. In response to Ms. Morales’s decision

not to participate in these prayers, her coaches

threatened to remove her from the swim team. Her

13 Ms. Morales’s experiences described here are among those

detailed in a forthcoming COLAGE publication addressing the

challenges facing and providing guidance for families with

LGBTQ family members.

19

peers, acting on the example set by the authority

figures at the school, again ostracized her. These

events not only made her life as an adolescent more

difficult, but also placed burdens on her own spiritual

srowth. Only years later did she understand how

harmful the religious coercion she experienced during

her formative years had been to her ability to develop

the deep faith she now nurtures.

Here, Petitioner’s decision to engage in

religious activity on the 50-yard line, in his official

garb as one of the school’s football coaches, and often

surrounded by student-athletes, implicates the

coercion—‘subtle and indirect” or otherwise—warned

of by this Court and suffered by Ms. Morales. See Lee,

505 U.S. at 593; Edwards, 482 U.S. at 584 (“The State

exerts great authority and coercive power through

mandatory attendance requirements, and because of

the students’ emulation of teachers as role models and

the children’s susceptibility to peer pressure.”).

Petitioner’s status as a coach, not to mention his

publicity campaign, further amplifies the classic

concerns regarding coercion at a public school due to

the unique, powerful relationship between student:

athletes and their coaches. See Borden, 523 F.3d at

182 (McKee, J., concurring) (“Given the uproar this

issue visited on the community, the players must have

known how important prayer was to their coach—and

no high school athlete would want to disappoint the

coach....”).

Indeed, Petitioner and his counsel embraced

the substantial mentoring component of his coaching

role. Petitioner stated that he was “helping these kids

be better people.” JA 69-74. He also recognized that

20

“for some kids, the coach might even be the most

important person they encounter in their overall life.”

JA 323. And his counsel emphasized to the district

court: “[A] coach is a role model, right? The coach is

visible. The young men on the team are looking up to

the coach. There is no dispute about that. That’s

precisely why Coach Kennedy wants to do what he

does.” JA 3868; see also Pet. App-14 (noting

Petitioner’s testimony that coaches are “one of those

especially respected persons chosen to teach on the

field, in the locker room, and at the stadium.”)

(internal citations omitted). The coercive power of

Petitioner’s conduct does not stop with his team. High

school football games serve as a touchstone of many

schools’ and local communities’ cultural lives. As a

result, many students feel compelled to participate in

these events “as part of a complete educational

experience.” Santa Fe, 539 U.S. at 311 (noting further

that students other than athletes “such as

cheerleaders land] members of the band” are required

to attend).

In short, the authority and influence that

school officials, and coaches in particular, wield is

powerful and easily can lead students “to seek ways to

ingratiate themselves” to that authority, Berry v.

Dep't of Soc. Servs., 447 F.3d 642, 650-51 (9th Cir.

2006), even if it means conflict with and betrayal of

the students’ own deeply held beliefs concerning

identity, religion, or spirituality. Accordingly, given

the public nature of his religious exercise and its

nexus to the authority of his role as a football coach,

Petitioner’s prayer practice cannot be considered free

21

of coercion, no matter his intentions.!4 It is neither

right nor constitutional under the decisions of this

Court to force upon students—especially those

LGBTQ students who may have had to grapple with

religious disapproval of their identity while

developing their own personal relationships with

religion and_= spirituality—the choice between

conforming to the religious practice of a public school

authority figure who is the adult leader of their team,

or holding tightly to their own identities and values at

the risk of further marginalization. 15

CONCLUSION

For students in their formative years, who are

in the midst of discovering their religious and sexual

identities, school-sponsored religious activity engaged

14 Indeed, multiple parents confirmed that their children

participated due to such social pressure ranging from fear of

reprisal to a wish not to be separated from or at odds with their

teammates. See JA 234 (Transcript Excerpts from July 12, 2019,

Deposition of J. Polm) (testifying regarding a parent whose son,

a student-athlete on the football team, “felt compelled to

participate” in Petitioner’s prayers because he “felt he wouldn't

get to play as much if he didn’t”); JA 356 (Decl. of A. Leavell in

Support of Motion for Summary Judgment, Kennedy vy.

Bremerton Sch. Dist., No. 16-cv-05694 (W.D. Wash. Nov. 13,

2019)) (describing communications from parents who informed

Respondent that their children “participated in the team prayers

only because they did not wish to separate themselves from the

team”).

15 See, e.g, KOSCIW ET AL., supran.11, 18 (over 70% of LGBTQ

students surveyed reported avoiding school functions and

extracurricular activities to some extent, and over 25% avoided

them often, due to concerns about personal safety or social

rejection); id. 46-47 (discussing adverse impacts on LGBTQ

students resulting from alienating conditions in their schools).

22

in by their role models and peers in the public school

setting can create coercive pressure to conform to the

religious majority, especially if such religious

practices are in conflict with their own religious

identity and commitments, or their identity as a

nonbeliever. Such coercive pressures can weigh

particularly heavily on LGTBQ students and students

with LGBTQ family members, given the intensity of

current debates among many faiths = and

denominations about LGBTQ people and their place

within faith communities. Because public schools are

not the appropriate forum for divisive religious

debates, and young people seeking public education

must be protected from dilemmas requiring them to

pick between conformity with their peers and

instructors, on the one hand, and honoring their

deeply held beliefs, on the other, it has been wellsettled that school-sanctioned religious activity is

unconstitutional.

The Court should apply longstanding precedent

and affirm the decision of the Court of Appeals.

Dated: March 31, 2022

Respectfully Submitted,

/s/ Thomas A. Zaccaro

Thomas A. Zaccaro