Amicus Curiae Brief — Cambridge Christian School, Inc., Petitioner v. Florida High School Athletic Association, Inc.

No. 24-1261

IN THE

Supreme Court

of the United States

___________

CAMBRIDGE CHRISTIAN SCHOOL, INC.,

Petitioner,

v.

FLORIDA HIGH SCHOOL ATHLETIC

ASSOCIATION, INC.,

Respondent.

_________________________________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

_________________________________

BRIEF OF AMICUS CURIAE

JOSEPH KENNEDY

IN SUPPORT OF PETITIONER

_________________________________

GORDON D. TODD *

C. LEVI BROWN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736- 8760

gtodd@sidley.com

PHILIP H. DEVOE

JASON D. GODELMAN

SIDLEY AUSTIN LLP

787 Seventh Avenue,

New York, NY 10019

JORGE R. PEREIRA

SIDLEY AUSTIN LLP

1001 Brickell Bay Drive,

Suite 900

Miami, FL 33131

Attorneys for Amici Curiae

July 10, 2025

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF CONTENTS......................................

i

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

iii

INTEREST OF THE AMICUS CURIAE ............

1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT .....................................................

2

ARGUMENT ........................................................

3

I. THE ELEVENTH CIRCUIT MISAPPLIED

THIS COURT’S GOVERNMENT SPEECH

PRECEDENTS, LEADING IT TO THE

WRONG RESULT. .......................................

3

A. Under This Court’s Precedents, a Rigid,

Multi-Factorial Test Does Not Drive the

Government Speech Analysis. .................

3

B. Instead, the Eleventh Circuit Applied a

Rigid, Multi-Factor Test. .........................

6

C. When

Reviewed

Holistically,

the

FHSAA’s PA Announcements Are

Clearly Private Speech. ...........................

10

II. THE ELEVENTH CIRCUIT SHOULD

HAVE ANALYZED THE BURDEN ON

CAMBRIDGE CHRISTIAN’S RELIGIOUS

EXERCISE. ..................................................

11

A. Labeling the Speech “Government

Speech” Does Not End the Free Exercise

Inquiry. .....................................................

12

B. The

FHSAA

Unconstitutionally

Burdened

Cambridge

Christian’s

Religious Exercise. ...................................

14

ii

1. The FHSAA’s Policy Is Not Neutral

or Generally Applicable. ............ 15

2. The FHSAA’s Policy Fails Strict

Scrutiny. ..................................... 17

CONCLUSION ....................................................

19

iii

TABLE OF AUTHORITIES

CASES

Page

Bd. of Educ. v. Mergens, 496 U.S. 226

(1990) .........................................................

18

Church of Lukumi Babalu Aye, Inc., v. City

of Hialeah, 508 U.S. 520 (1993) ................ 15, 16

Edwards v. Aguillard, 482 U.S. 578

(1987) .........................................................

13

Emp. Div., Dept. of Human Res. v.

Smith, 494 U.S. 872 (1990) .......................

15

Fulton v. City of Philadelphia, 593 U.S. 522

(2021) ......................................................... 15, 17

Johanns v. Livestock Mktg. Ass’n, 544 U.S.

550 (2005) ..................................... 4, 5, 6, 8, 9, 11

Kennedy v. Bremerton Sch. Dist., 597 U.S.

507 (2022) .............

1, 2, 8, 14, 15, 17, 18, 19

Lehman v. City of Shaker Heights, 418 U.S.

298 (1974) .................................................. 4, 10

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

8

Locke v. Davey, 540 U.S. 712 (2004) ............

18

Matal

v.

Tam,

582

U.S.

218

(2017) ........................................ 5, 6, 7, 9, 10, 13

McCreary Cnty. v. ACLU, 545 U.S. 844

(2005) .........................................................

12

Mech v. Sch. Bd. of Palm Beach Cnty., 806

F.3d 1070 (11th Cir. 2015) ........................

7

Perry Educ. Ass’n v. Perry Loc. Educs. Ass’n,

460 U.S. 37 (1983) .....................................

4

Pleasant Grove City v. Summum, 555 U.S.

460 (2009) .....................................

3, 4, 5, 7, 9

Roman Catholic Diocese of Brooklyn v.

Cuomo, 592 U.S. 14 (2020) .......... 15, 16, 17, 19

S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (2020) ..............

16

iv

Shurtleff v. City of Boston, 596 U.S. 243

(2022) ............... 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13

Walker v. Tex. Division, Sons of Confederate

Veterans,

Inc.,

576

U.S.

200

(2015) .................................... 3, 4, 5, 8, 9, 10, 12

Wooley v. Maynard, 430 U.S. 705 (1977).....

12

OTHER AUTHORITIES

Stephanie H. Barclay, The Religion Clauses

After Kennedy v. Bremerton School

District, 108 Iowa L. Rev. 2097 (2023) .....

Helen Norton, The Equal Protection

Implications of Government’s Hateful

Speech, 54 Wm. & Mary L. Rev. 159

(2012) .........................................................

14

13

INTEREST OF THE AMICUS CURIAE 1

Joseph Kennedy is a former high school football

coach and was the petitioner in Kennedy v. Bremerton

School District, 597 U.S. 507 (2022), a landmark ruling

of this Court that reaffirmed the rights of public

employees to engage in religious expression. Coach

Kennedy has a strong interest in this case because it

presents similar constitutional stakes.

The Eleventh Circuit upheld the Florida High School

Athletic Association’s (“FHSAA’s”) decision to prohibit

Cambridge Christian School (“Cambridge Christian”)

from offering a pregame prayer over the public address

system before a state championship football game,

holding that the public address announcements were

government speech and that therefore Cambridge

Christian’s Free Exercise Clause claim failed. In so

doing, the Eleventh Circuit ignored the core lesson of

Kennedy: that government entities may not single out

religious expression for exclusion simply because it is

religious.

As someone who has personally experienced the

consequences of government efforts to suppress

religious expression in the name of neutrality, Coach

Kennedy is uniquely positioned to underscore the

dangers of the Eleventh Circuit’s approach.

Accordingly, Amicus urges the Court to grant

certiorari and reaffirm that respect for religious

exercise is not a constitutional violation, but a

constitutional command.

1 Counsel obtained consent of all parties. No counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amici and their counsel, made any monetary

contribution toward the preparation or submission of this brief.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

In its zeal to protect high school football from any

taint of religion, the Eleventh Circuit made two errors.

First, it applied a rigid three-factor test to decide that

the FHSAA was speaking during the PA

announcements. And second, once it concluded that

the FHSAA was speaking, the Eleventh Circuit held

that the FHSAA could promote and exclude whatever

viewpoints it wished.

Both steps contradict this Court’s precedents. First,

this Court has instructed lower courts that whether

particular expression constitutes government speech

follows a “holistic inquiry,” not a rigid test. Shurtleff v.

City of Boston, 596 U.S. 243, 252 (2022). The object of

this inquiry is the nature of the message—in other

words, is the government speaking for itself, or is the

message a private party’s? The Eleventh Circuit

reached the wrong result because it focused on

cramped and isolated factors, controlled by irrelevant

facts, missing the proverbial forest for the trees.

Second, while the Free Speech Clause does not

constrain the government’s own speech, other

Constitutional provisions still do. Yet, the Eleventh

Circuit summarily disposed of Cambridge Christian’s

Free Exercise claim on the basis that the PA

announcements were government speech. But the

FHSAA did violate the Free Exercise Clause by

“ferret[ing] out and suppress[ing]” Cambridge

Christian’s “religious observance[] even as [FHSAA]

allow[ed] comparable secular speech.” Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 543–44 (2022).

The Eleventh Circuit’s decision undercuts this

Court’s recent holdings in Shurtleff and Kennedy. The

3

Court should grant and reverse to reaffirm those

important decisions.

ARGUMENT

I. THE ELEVENTH CIRCUIT MISAPPLIED

THIS COURT’S GOVERNMENT SPEECH

PRECEDENTS, LEADING IT TO THE

WRONG RESULT.

Despite this Court’s unbroken line of precedent

evaluating government speech cases holistically, the

Eleventh Circuit carved up Cambridge Christian’s

case and forced the pieces into three buckets—history,

endorsement, and control. In so doing, it misapplied

blackletter government speech law, cited facts

unrelated to who was actually speaking at the State

Championship game, and wrongfully concluded that

the PA announcements were government speech.

A. Under This Court’s Precedents, a Rigid,

Multi-Factorial Test Does Not Drive the

Government Speech Analysis.

This Court has never established a firm test for

analyzing whether a speaker is a private party or the

government. To the contrary, it has used a different

methodology in nearly all its government speech cases,

because the analysis “is driven by a case's context

rather than the rote application of rigid factors.”

Shurtleff, 596 U.S. at 252.

Context matters in such cases because the

government speech analysis centers on the message.

The key question is whether the government is

“speaking on its own behalf.” Pleasant Grove City v.

Summum, 555 U.S. 460, 470 (2009); Walker v. Tex.

Div., Sons of Confederate Veterans, Inc., 576 U.S. 200,

216 (2015). To determine who is speaking, this Court

4

looks to the message that is communicated. If the

message is “governmentally determined” and

delivered “purposeful[ly] . . . by a person exercising a

power to speak for a government,” then the

government is speaking. Shurtleff, 596 U.S. at 268

(Alito, J., concurring); see Johanns v. Livestock Mktg.

Ass’n, 544 U.S. 550, 560 (2005). If any part of the

message is not, the government is instead “providing a

forum for private speech.” Summum, 555 U.S. at 470.

In so doing, the government is acting as a regulator.

And speaking and regulating are related—when the

message is not the government’s, the government is by

default allowing some private parties to speak and

excluding others. See Walker, 576 U.S. at 214;

Summum, 555 U.S. at 464. For example, the state of

Ohio provided a nonpublic forum when it opened a city

bus for advertisements, Lehman v. City of Shaker

Heights, 418 U.S. 298, 302 (1974), but the Walker

Court observed that the advertising space also “bore

no indicia that the speech was owned or conveyed by

the government,” Walker, 576 U.S. at 218. And an

Indiana school district provided a nonpublic forum

when it allowed private parties to access an

interschool mail system, Perry Educ. Ass’n v. Perry

Loc. Educs. Ass’n, 460 U.S. 37, 49 (1983), but, again,

the Walker Court observed that “[i]t was [also]

therefore clear that private parties, and not only the

government, used the system to communicate.”

Walker, 576 U.S. at 218.

Thus, to determine the character of the message and,

ultimately, whether the government is providing a

forum for private speech or speaking for itself, this

Court has always analyzed the government speech

question holistically. And it has adopted different

methodological approaches as warranted by the facts

5

of each case. See Shurtleff, 596 U.S. at 263 (Alito, J.,

concurring) (“[This Court] has never attempted to

specify a general method for deciding” whether “the

government is actually expressing its own views or the

real speaker is a private party.”).

Sometimes, this Court considers a wide variety of

facts. In Walker, for example, this Court evaluated

several types of evidence to determine whether license

plates are government speech. It considered whether

governments traditionally speak through license

plates, how much control the state had over the plates’

design, what type of forum a license plate would be,

and various other facts relating to a license plate’s

nature. 576 U.S. at 213–14. This was not a rigid boxchecking exercise but an effort to reason by analogy to

the facts of Pleasant Grove City v. Summum, 555 U.S.

460 (2009). Walker, 576 U.S. at 208–09 (“Our

reasoning rests primarily on our analysis in Summum,

a recent case that presented a similar problem.”); see

also Matal v. Tam, 582 U.S. 218, 237–39 (2017)

(resting holding on analogical reasoning to facts of

prior government speech cases). Of course, not “every

element of [the Court’s] discussion in Summum [wa]s

relevant” to the facts in Walker—the permanence of

the monuments in Summum was out of place in

Walker, for example—as they were different cases

warranting different analyses. Walker, 576 U.S. at

213.

The circumstances of still other cases have

warranted a different focus. For instance, in Johanns

v. Livestock Marketing Ass’n, 544 U.S. 550 (2005), this

Court held that beef advertising funded by a federal

program constituted government speech. Id. at 560–

61. The Court’s conclusion centered on a single fact:

The government “effectively controlled” the message

6

from “beginning to end.” Id. The unique posture of

Johanns meant few other factual issues affected its

analysis. For example, it did not consider “whether the

. . . reasonable viewer would identify the speech as the

government’s,” see id. at 564 n.7, and it addressed

facts relating to the funding structure but determined

they were out of scope, see id. at 562.

And in Matal, holding that trademarks are not

government speech, this Court considered several

facts in addition to history, public perception, and

governmental control: the government approves

trademarks adopting a wide variety of contradictory

positions, the Patent and Trademark Office (“PTO”)

expressly disclaims approval of a trademark’s

message, and the PTO does not consider a trademark’s

viewpoint when deciding whether to register it. 582

U.S. at 236–38.

These cases present fact-intensive questions, for

which a rigid multi-factor test is a poor fit. Instead,

this Court considers each case on its facts, reasoning

by analogy to past cases, to determine whether the

government is speaking on its own behalf or providing

a platform for a private party.

B. Instead, the Eleventh Circuit Applied a

Rigid, Multi-Factor Test.

The Eleventh Circuit misread this Court’s

precedents as mandating a formal three-part test. By

forcing the facts of this case into one of those three

buckets, the Eleventh Circuit compounded its error—

many of the facts it claimed support its conclusion do

not aid in the government speech analysis or in fact

point the other direction.

At the outset, the Eleventh Circuit stated that it

would “consider three factors”—history, public

7

perception, and control. Pet. App. 34a. While it

recognized that these factors “are not exhaustive and

may not all be relevant in every case,” it did not

consider any facts outside these three narrow

categories. Id. at 53a.

What is more, not all the facts in Cambridge

Christian’s case fit neatly into one of the three factors

or bore on the government speech question.

Committed to its multi-factor test, not only did the

Eleventh Circuit fail to consider several relevant facts

outside the three categories, as discussed below at

Section I.C., but also considered irrelevant facts

simply because they touched on a factor.

First, the Eleventh Circuit placed decisive weight on

the fact that the record contains only one example of a

“private speaker using the PA system.” Pet. App. at

37a. But the “speaker” is not necessarily the

mouthpiece. Compare Matal, 582 U.S. at 239

(government trademarks are not government speech),

with Summum, 555 U.S. at 472 (privately donated

monuments are government speech). What matters is

whether the FHSAA broadcast a private message. See,

e.g., Summum, 555 U.S. at 472–73 (monuments are

privately donated but government delivers the

message); see also Shurtleff, 596 U.S. at 268 (Alito, J.,

concurring) (“Governments are not natural persons

and can only communicate through human agents who

have been given the power to speak for the

government.”).

Second, the Eleventh Circuit considered evidence of

whether “observers reasonably believe the government

has endorsed” the PA announcements. Pet App. 39a

(cleaned up); see Mech v. Sch. Bd. of Palm Beach Cnty.,

806 F.3d 1070, 1076 (11th Cir. 2015). But such

evidence has no place in the government speech

8

analysis. For one, this subjective framework conjures

the specter of Lemon v. Kurtzman, 403 U.S. 602 (1971),

and “its endorsement test offshoot,” which “this Court

long ago abandoned.” Kennedy, 597 U.S. at 534. And

further, “public perception cannot be relevant to

whether the government is speaking, as opposed

merely appearing to speak.” Shurtleff, 596 U.S. at 265

(Alito, J., concurring); see Johanns, 544 U.S. at

564 n.7.

Third, the Eleventh Circuit concluded that by

limiting PA announcements to paying advertisers,

FHSAA took ownership of the messages. Because

advertisers paid FHSAA to place their copy in the

announcements, the Eleventh Circuit explained, the

FHSAA had “advance notice of . . . which entities

[would] be submitting sponsor messages.” Pet App.

49a. But if “familiar[ity] with the kinds of messages

the [government] would deem appropriate,” id., were

enough, one wonders why the Court needed more than

a few sentences to decide Johanns. See 544 U.S. at 553

(only beef producers and importers invited to develop

beef advertising campaign); see also Walker, 576 U.S.

at 205 (only nonprofits invited to submit specialty

license plate designs). This Court’s cases are clear—a

government must do more than limit access to the

venue to take ownership of the message.

Fourth, and relatedly, the Eleventh Circuit

attempted to distinguish the flag-raising program in

Shurtleff as a free offering, whereas FHSAA charged

its corporate-sponsor speakers. Pet. App. 48a–49a.

Charging a fee cannot suffice to transform a private

message into the government’s, as this Court made

clear when rejecting a similar argument in Walker.

576 U.S. at 217–18.

9

Fifth, the Eleventh Circuit considered it relevant

that the announcements included the national

anthem, presentation of colors, and pledge of

allegiance, as all are “inseparably associated with

ideas of government.” Pet. App. 76a (internal

quotations omitted). But the fact that the government

might agree with some of the message does not make

the entire message the government’s own. Shurtleff,

596 U.S. at 256.

Sixth, the Eleventh Circuit stated that FHSAA’s role

as organizer of the championship game was a “fact[]”

that “favor[s] government speech.” Pet. App. 40a. But

the government’s provision of a venue for speech does

not mean that the government has determined the

message and empowered a speaker to deliver it. See,

e.g., Johanns, 544 U.S. at 562 (federally funded

promotional campaign); Summum, 555 U.S. at 472

(monument in a public park); Walker, 576 U.S. at 208

(specialty license plates); Matal, 582 U.S. at 235

(federally registered trademark); Shurtleff, 596 U.S. at

251 (flagpole).

Seventh, the Eleventh Circuit acknowledged three

examples of private messages in past FHSAA playoff

games—two instances of “introductory remarks” on

behalf of the school and the aforementioned private

speaker’s Christian prayer. Pet. App. 37a n.8.

Focusing nearly exclusively on the Christian prayer, it

brushed the prayer aside as insufficient, declaring that

“[o]ne instance does not a history make.” Id. at 37a.

But this Court does “not settle [a] dispute by counting

noses.” Shurtleff, 596 U.S. at 256. A Christian prayer

in a past FHSAA playoff game is a strong sign FHSAA

is regulating private access to the PA announcements,

not speaking for itself.

10

The Eleventh Circuit’s decision to follow a strict

three-factor test not only defied this Court’s

precedents but also led it down the wrong analytical

path.

C. When

Reviewed

Holistically,

the

FHSAA’s PA Announcements Are Clearly

Private Speech.

Had the Eleventh Circuit considered this case

holistically, it would have recognized that the FHSAA

was not speaking for itself throughout the entirety of

the PA announcements. Like in Matal and Shurtleff,

the wide variety of viewpoints expressed during the

PA announcements and the lack of review by FHSAA

are facts strongly supporting the conclusion that the

PA announcements are more akin to a forum for

private and public speech than a purely government

message.

At past state championship football games, the

FHSAA has permitted a wide variety of speech,

including corporate advertisements and prayer. See

Pet. App. 37a–39a. Those who read promotional

copy—including the government—do not necessarily

assume ownership of the message by doing so.

Particularly so for the government, which otherwise

would be “unashamedly endorsing a vast array of

commercial products and services[,] . . . providing

Delphic advice to the consuming public.” Matal, 582

U.S. at 236. Matal is not the only case in which this

Court has rejected the Eleventh Circuit’s corporateadvertisements-are-government-speech maxim. Take

one example: When an Ohio city displayed an

advertisement on the side of a bus, this Court

determined the government had opened a nonpublic

forum, not spoken for itself. See Lehman, 418 U.S. at

304; Walker, 576 U.S. at 218. So too here.

11

What is more, the prayer at the 2012 state

championship game shows that the FHSAA is not

speaking for itself during the PA announcements.

Shurtleff, 596 U.S. at 256 (“[W]e do not settle [a]

dispute by counting noses.”). As discussed above, the

FHSAA is instead acting as a regulator, permitting

prayer in one year and denying it in another.

Further, the FHSAA plays a muted role in the

writing of the corporate advertisements. Indeed, it

reads the copy “without revision,” and has no “policies

or procedures for reviewing the text.” Pet. App. 48a;

see Shurtleff, 596 U.S. at 257 (“[Boston] had nothing—

no written policies or clear internal guidance—about

what flags groups could fly.”). Just as in Shurtleff,

there is no evidence that FHSAA “actively shaped [the

messages]” sent by the corporate sponsors. 596 U.S. at

256; see also Johanns, 544 U.S. at 560–61.

Thus, not only did the Eleventh Circuit err by

shoehorning Cambridge Christian’s case into ill-forged

shackles, but also, through this exercise, the court

incorrectly determined that prayer and corporate

sponsorships are government speech. They are not.

This Court should grant certiorari to fix this profound

error.

II. THE ELEVENTH CIRCUIT SHOULD HAVE

ANALYZED THE BURDEN ON CAMBRIDGE

CHRISTIAN’S RELIGIOUS EXERCISE.

The Eleventh Circuit held that “the government’s

own speech cannot support a claim that the

government has interfered with a private individual’s

free exercise rights.” Pet. App. 51a. But when the

government uses its own expressive power to

selectively exclude or suppress religious exercise, it

12

engages in constitutionally suspect behavior—

regardless of how the speech is labeled. When

properly analyzed, it is apparent that the FHSAA

violated Cambridge Christian’s free exercise rights.

A. Labeling the Speech “Government

Speech” Does Not End the Free Exercise

Inquiry.

As explained supra Part I, the FHSAA was not

speaking for itself by using the PA system. But

assuming arguendo that it was, this Court has

recognized that the government must not infringe on

constitutional rights even when the government is

speaking.

Examples abound. In Walker, this Court held that

“[t]he Free Speech Clause itself may constrain the

government’s speech if, for example, the government

seeks to compel private persons to convey the

government’s speech.” 576 U.S. at 208. Similarly, in

Wooley v. Maynard, 430 U.S. 705 (1977), this Court

recognized that New Hampshire’s state motto “Live

Free or Die” was “the State’s ideological message,” yet

still evaluated whether compelling citizens to drive

with license plates displaying the motto violated their

First Amendment right “to hold a point of view

different from the majority and to refuse to foster . . .

an idea they find morally objectionable.” Id. at 715; see

Shurtleff, 596 U.S. at 268 (Alito, J., concurring) (“[N]ot

all governmental activity that qualifies as ‘government

speech’ in [the] literal and factual sense is exempt from

First Amendment scrutiny.”).

This is true of other parts of the First Amendment.

This Court has also held that government speech may

violate the Establishment Clause. See, e.g., McCreary

Cnty. v. ACLU, 545 U.S. 844, 867–74, 881 (2005)

13

(striking down Ten Commandment displays in

Kentucky courthouses as an Establishment Clause

violation); Edwards v. Aguillard, 482 U.S. 578, 593–94

(1987) (striking down public school district’s required

teaching of creation science as Establishment Clause

violation). So too in the Equal Protection context. See

Helen Norton, The Equal Protection Implications of

Government’s Hateful Speech, 54 Wm. & Mary L. Rev.

159, 183–84 (2012) (collecting this Court’s cases

recognizing that government speech “might deny its

targets ‘the equal protection of the laws’”).

Government speech may violate the Constitution

under the Free Exercise Clause, just as it can under

the Free Speech Clause, Establishment Clause, and

Equal Protection Clause. Were it otherwise, “the

government-speech

doctrine

[would]

become[]

‘susceptible to dangerous misuse.’” Shurtleff 596 U.S.

at 262 (Alito, J., concurring) (quoting Matal, 582 U.S.

at 235). Censorship of religious speech on the basis

that the speech is religious violates the Free Exercise

Clause whether or not the government is “speaking”

through its censorship. See id. at 269 (“Naked

censorship of a speaker based on viewpoint . . . might

well constitute [government] ‘expression’ in the thin

sense that it conveys the government’s disapproval of

the speaker’s message. But plainly that kind of action

cannot fall beyond the reach of the First

Amendment.”).

The Eleventh Circuit failed to grasp this point,

largely because it regarded the Establishment Clause

as being in tension with the Free Exercise Clause. The

Eleventh Circuit relied, in part, on the argument that

“[i]f the Free Exercise Clause required the government

to accommodate religion in its own expression in some

circumstances, then compliance with the Free

14

Exercise Clause could itself lead to a violation of the

Establishment Clause.” Pet. App. 51a n.12 (emphasis

omitted). But that fundamentally misunderstands the

relationship between the Free Exercise and

Establishment clauses. The two clauses “have

‘complementary’ purposes, not warring ones where one

Clause is always sure to prevail over the others.”

Kennedy, 597 U.S. at 533; see Stephanie H. Barclay,

The Religion Clauses After Kennedy v. Bremerton

School District, 108 Iowa L. Rev. 2097, 2109 (2023)

(“Perhaps one of the most important implications of

Kennedy is that it rejects the idea that the

Establishment Clause and Free Exercise Clause are

conceptually in ‘direct tension’ with one another.”).

Accordingly, the government cannot escape a Free

Exercise

challenge merely

by labeling its

discrimination “government speech.” While the

government speech doctrine protects governmental

expression in some circumstances, the doctrine is not

a blank check for infringing on the Constitution’s

guarantee of the right to freely exercise religion.

B. The

FHSAA

Unconstitutionally

Burdened

Cambridge

Christian’s

Religious Exercise.

Thus, the Eleventh Circuit should have evaluated

the burden on Cambridge Christian’s sincere religious

exercise. It did not. The FHSAA’s refusal to allow

Cambridge Christian to pray over the PA system was

not neutral or generally applicable, was not justified

by a compelling state interest, and was not narrowly

tailored. This Court should grant certiorari to make

clear that policies like the FHSAA’s fail strict scrutiny.

15

1.

The FHSAA’s Policy Is Not Neutral or

Generally Applicable.

A plaintiff “may carry the burden of proving a free

exercise violation [] by showing that a government

entity has burdened his sincere religious practice

pursuant to a policy that is not ‘neutral’ or ‘generally

applicable.’” Kennedy, 597 U.S. at 525 (quoting Emp.

Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 879–

881 (1990)). No one disputes that Cambridge Christian

seeks to engage in sincerely religiously motivated

exercise. A government policy that is “specifically

directed at [] religious practice,” “discriminate[s] on its

face” against religion, or otherwise has religion as its

“object” is not neutral. Emp. Div., Dept. of Human Res.

v. Smith, 494 U.S. 872, 878 (1990); Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533

(1993). Similarly, government policies that “prohibit[]

religious conduct while permitting secular conduct

that undermine[] the government’s asserted interests

in a similar way” or that provide “a mechanism for

individualized exemptions” are not generally

applicable. Fulton v. City of Philadelphia, 593 U.S.

522, 533–34 (2021).

The cases involving religious exercise that this Court

decided during the COVID-19 pandemic provide a

useful illustration of why government policies that

allow commercial enterprises to engage in categories

of activity while restricting religious entities from

doing the same are not neutral or generally applicable.

In Roman Catholic Diocese of Brooklyn v. Cuomo, 592

U.S. 14 (2020) (per curiam), the Court evaluated

whether New York’s COVID-19-era rules restricting

gatherings at houses of worship to either 10 or 25

persons, while allowing businesses in those areas to

“admit as many people as they wish” “violate[d] ‘the

16

minimum requirement of neutrality to’ religion.” Id. at

16–17 (quoting Lukumi, 508 U.S. at 533). New York’s

restrictions, the Court held, were not neutral or

generally applicable because “a large store in

Brooklyn” could have “literally hundreds of people

shopping there on any given day,” while “a nearby

church or synagogue would be prohibited from

allowing more than 10 or 25 people inside for a worship

service.” Id. at 17; see S. Bay United Pentecostal

Church v. Newsom, 140 S. Ct. 1613, 1614 (2020)

(mem.) (Kavanaugh, J., dissenting) (“California’s

latest safety guidelines discriminate against places of

worship and in favor of comparable secular businesses.

Such discrimination violates the First Amendment.”).

The FHSAA offered a microphone to corporate

advertisers but silenced Cambridge Christian

because its message was prayerful, rather than

promotional. As the Eleventh Circuit acknowledged,

the FHSAA “periodically often” allowed schools to use

the PA system for unscripted secular welcoming

remarks. See Pet. App. 9a n.3. The FHSAA also

allowed private sponsor advertisements to be read

over the PA system. Id. at 43a. The FHSAA, however,

refused to allow Cambridge Christian to use the very

same PA system for welcoming remarks. In so doing,

the FHSAA allowed private commercial entities to

speak, but prohibited religious entities from engaging

in the same activity. FHSAA’s sole reason for their

policy banning Cambridge Christian from using the

PA system was that Cambridge Christian’s speech

was religious. Pet. App. 12a.

FHSAA’s policy was thus not neutral because it

“discriminate[d] on its face” against religious speech.

Lukumi, 508 U.S. at 533; Cuomo, 592 U.S. at 16–17

(restriction that applied to religious establishments

17

but not businesses was not neutral). And because

FHSAA’s policy allowed nonreligious schools to give

welcoming remarks and private sponsor

advertisements to be read over the PA system, the

policy was not generally applicable. Fulton, 593 U.S.

at 534; Cuomo, 592 U.S. at 17–18 (restriction that

applied to religious entities but not “factories and

schools” when both “have contributed to the spread of

COVID-19” was not generally applicable). FHSAA’s

policy therefore impermissibly “ferret[ed] out and

suppress[ed] religious observances even as it

allow[ed] comparable secular speech.” Kennedy, 597

U.S. at 543–44.

2.

The FHSAA’s Policy Fails Strict

Scrutiny.

Because the FHSAA burdened Cambridge

Christian’s rights under the Free Exercise Clause,

FHSAA must show that its policy was “justified by a

compelling state interest and was narrowly tailored in

pursuit of that interest.” Kennedy, 597 U.S. at 525.

FHSAA cannot meet that high burden.

FHSAA’s sole justification for denying Cambridge

Christian use of the public address system for its pregame prayer was FHSAA’s belief that the prayer

would “establish[ ] a religion.” Pet. App. 200a. As this

Court made clear in Kennedy, however, “there is no

conflict between” the Free Exercise Clause and the

Establishment Clause, and a government’s concerns

about “phantom constitutional violations” never

“justify actual violations of an individual’s First

Amendment rights.” Kennedy, 597 U.S. at 543. Indeed,

the fears of endorsement espoused by the FHSAA echo

Lemon’s “reasonable observer” standard, which, as

discussed supra at 8, this Court “long ago abandoned.”

Kennedy, 597 U.S. at 534. And, although a state may

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have an interest in avoiding an actual violation of the

Establishment Clause, this Court “[has] never inferred

. . . that a State has a constitutionally sufficient

interest in discriminating against religion in whatever

other context it pleases, so long as it claims some

connection, however attenuated, to establishment

concerns.” Locke v. Davey, 540 U.S. 712, 730 n.2 (2004)

(Scalia, J., dissenting); see Bd. of Educ. v. Mergens,

496 U.S. 226, 251 (1990) (“[The] fear of a mistaken

inference of endorsement is largely self-imposed,

because the [government] itself has control over any

impressions it gives.”). The FHSAA thus does not have

a compelling interest in denying Cambridge Christian

use of the PA system.

Even were avoiding the appearance of government

endorsement of religion a compelling state interest,

the means FHSAA uses to achieve that interest must

be narrowly tailored. Kennedy, 597 U.S. at 532. They

were not. Blanket suppression of prayer over the

loudspeaker is not the least restrictive means FHSAA

could have used to avoid the appearance of

endorsement. FHSAA could have achieved its goal

through disclaimers that the views expressed are

those of the schools and not the state, or through

neutral access policies allowing every participating

school a certain allotted amount of time to engage in

speech, religious or otherwise. Attendees of the game

would “reasonably understand” that FHSAA allowing

Cambridge Christian and other schools to pray over

the PA system “evinces neutrality toward, rather than

endorsement of, religious speech.” Mergens, 496 U.S.

at 251. Indeed, the FHSAA in 2023 adopted exactly

that policy, demonstrating that that less restrictive

approach was reasonable.

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Cambridge Christian has a longstanding tradition

of, and deeply held belief in, opening games with a

prayer over the stadium loudspeaker. In 2012, two

Christian schools had been allowed to pray over the

loudspeaker during the same type of game—the

FHSAA state championship football game—and at the

same stadium as in this case. Pet. App. 8a–9a. Yet

when Cambridge Christian participated in the state

championship game, FHSAA refused to allow

Cambridge Christian to broadcast the same type of

prayer FHSAA had allowed only three years earlier.

FHSAA does not have a compelling interest in

banning Cambridge Christian from using the PA

system, nor is its policy narrowly tailored to achieve

that interest. As the Court observed in Cuomo, “[e]ven

in a pandemic, the Constitution cannot be put away

and forgotten.” 592 U.S. at 19. Nor can it be suspended

at kickoff. If corporate sponsors and other secular

entities are allowed to speak, then religious schools

must be allowed to pray.

The Court should grant certiorari to make clear that

the Establishment Clause does not “‘compel the

government to purge from the public sphere’ anything

an objective observer could reasonably infer endorses

or ‘partakes of the religious.’” Kennedy, 597 U.S. at 535

(citation omitted).

CONCLUSION

The decision below should be reversed.

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Respectfully submitted,

July 10, 2025

GORDON TODD *

C. LEVI BROWN

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

gtodd@sidley.com

(202) 736-8760

PHILIP H. DEVOE

JASON D. GODELMAN

SIDLEY AUSTIN LLP

787 Seventh Avenue, New

York, NY 10019

JORGE R. PEREIRA

SIDLEY AUSTIN LLP

1001 Brickell Bay Drive,

Suite 900

Miami, FL 33131

* Counsel of Record