Kennedy v. Bremerton Sch. Dist.

• Decision Date: 27 June 2022
• Docket Number: 21-418
• Parties: Joseph A. KENNEDY, Petitioner v. BREMERTON SCHOOL DISTRICT
• Court: U.S. Supreme Court

142 S.Ct. 2407

213 L.Ed.2d 755

Joseph A. KENNEDY, Petitioner

v.BREMERTON SCHOOL DISTRICT

No. 21-418

Supreme Court of the United States.

Argued April 25, 2022

Decided June 27, 2022

Paul D. Clement, Washington, DC, for petitioner.

Richard B. Katskee, Washington, DC, for respondent.

Kelly J. Shackelford, Jeffrey C. Mateer, Hiram S. Sasser, III, David J. Hacker, Michael D. Berry, Stephanie N. Taub, First Liberty, Institute, Piano, TX, Anthony J. Ferate, Spencer Fane LLP, Oklahoma City, OK, Paul D. Clement, Counsel of Record, Erin E. Murphy, Devin S. Anderson, Andrew C. Lawrence, Mariel A. Brookins, Chadwick J. Harper, Kirkland & Ellis LLP, Washington, DC, Jeffrey Paul Helsdon, The Helsdon, Law Firm, PLLC, Tacoma, WA, Counsel for Petitioner.

Michael B. Tierney, Tierney, Correa & Zeinemann, P.C.,Mercer Island, WA, Richard B. Katskee, Counsel of Record, Bradley Girard, Gabriela Hybel, Americans United for Separation of Church and State, Washington, DC, for respondent.

Justice GORSUCH delivered the opinion of the Court.

[142 S.Ct. 2415]

Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It

[142 S.Ct. 2416]

did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy's religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy's. Nor does a proper understanding of the Amendment's Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

I

A

Joseph Kennedy began working as a football coach at Bremerton High School in 2008 after nearly two decades of service in the Marine Corps. App. 167. Like many other football players and coaches across the country, Mr. Kennedy made it a practice to give "thanks through prayer on the playing field" at the conclusion of each game. Id. , at 168, 171. In his prayers, Mr. Kennedy sought to express gratitude for "what the players had accomplished and for the opportunity to be part of their lives through the game of football." Id. , at 168. Mr. Kennedy offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying "quiet[ly]" for "approximately 30 seconds." Id. , at 168–169.

Initially, Mr. Kennedy prayed on his own. See ibid. But over time, some players asked whether they could pray alongside him. 991 F.3d 1004, 1010 (C.A.9 2021) ; App. 169. Mr. Kennedy responded by saying, " ‘This is a free country. You can do what you want.’ " Ibid. The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times Mr. Kennedy still prayed alone. See ibid . Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. See id. , at 170. Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a "school tradition" that predated Mr. Kennedy's tenure. Ibid . Mr. Kennedy explained that he "never told any student that it was important they participate in any religious activity." Ibid . In particular, he "never pressured or encouraged any student to join" his postgame midfield prayers. Ibid .

For over seven years, no one complained to the Bremerton School District (District) about these practices. See id. , at 63–64. It seems the District's superintendent first learned of them only in September 2015, after an employee from another school commented positively on the school's practices to Bremerton's principal. See id. , at 109, 229. At that point, the District reacted quickly. On September 17, the superintendent sent Mr. Kennedy a letter. In it, the superintendent identified "two problematic practices" in which Mr. Kennedy had engaged. App. 40. First, Mr. Kennedy had provided "inspirational talk[s]" that included "overtly religious references" likely constituting "prayer" with the students "at midfield following the completion of ... game[s]." Ibid. Second, he had led "students and coaching staff in a prayer" in the locker-room tradition that "predated [his] involvement with the program." Id. , at 41.

The District explained that it sought to establish "clear parameters" "going forward." Ibid . It instructed Mr. Kennedy to avoid any motivational "talks with students" that "include[d] religious expression, including prayer," and to avoid "suggest[ing], encourag[ing] (or discourag[ing]),

[142 S.Ct. 2417]

or supervis[ing]" any prayers of students, which students remained free to "engage in." Id. , at 44. The District also explained that any religious activity on Mr. Kennedy's part must be "nondemonstrative (i.e. , not outwardly discernible as religious activity)" if "students are also engaged in religious conduct" in order to "avoid the perception of endorsement." Id. , at 45. In offering these directives, the District appealed to what it called a "direct tension between" the "Establishment Clause" and "a school employee's [right to] free[ly] exercise" his religion. Id. , at 43. To resolve that "tension," the District explained, an employee's free exercise rights "must yield so far as necessary to avoid school endorsement of religious activities." Ibid.

After receiving the District's September 17 letter, Mr. Kennedy ended the tradition, predating him, of offering locker-room prayers. Id. , at 40–41, 77, 170–172. He also ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field. See ibid. Mr. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field postgame prayer. See id. , at 172. Driving home after a game, however, Mr. Kennedy felt upset that he had "broken [his] commitment to God" by not offering his own prayer, so he turned his car around and returned to the field. Ibid. By that point, everyone had left the stadium, and he walked to the 50-yard line and knelt to say a brief prayer of thanks. See ibid .

On October 14, through counsel, Mr. Kennedy sent a letter to school officials informing them that, because of his "sincerely-held religious beliefs," he felt "compelled" to offer a "post-game personal prayer" of thanks at midfield. Id. , at 62–63, 172. He asked the District to allow him to continue that "private religious expression" alone. Id. , at 62. Consistent with the District's policy, see id. , at 48, Mr. Kennedy explained that he "neither requests, encourages, nor discourages students from participating in" these prayers, id. , at 64. Mr. Kennedy emphasized that he sought only the opportunity to "wai[t] until the game is over and the players have left the field and then wal[k] to mid-field to say a short, private, personal prayer." Id. , at 69. He "told everybody" that it would be acceptable to him to pray "when the kids went away from [him]." Id. , at 292. He later clarified that this meant he was even willing to say his "prayer while the players were walking to the locker room" or "bus," and then catch up with his team. Id. , at 280–282; see also id. , at 59. However, Mr. Kennedy objected to the logical implication of the District's September 17 letter, which he understood as banning him "from bowing his head" in the vicinity of students, and as requiring him to "flee the scene if students voluntarily [came] to the same area" where he was praying. Id. , at 70. After all, District policy prohibited him from "discourag[ing]" independent student decisions to pray. Id. , at 44.

On October 16, shortly before the game that day, the District responded with another letter. See id. , at 76. The District acknowledged that Mr. Kennedy "ha[d] complied" with the "directives" in its September 17 letter. Id. , at 77. Yet instead of accommodating Mr. Kennedy's request to offer a brief prayer on the field while students were busy with other activities—whether heading to the locker room, boarding the bus, or perhaps singing the school fight song—the District issued an ultimatum. It forbade Mr. Kennedy from engaging in "any overt actions" that could "appea[r] to a reasonable observer to endorse ... prayer ... while he is on duty as a District-paid coach." Id. , at 81. The District did so because it judged that anything

[142 S.Ct. 2418]

less would lead it to violate the Establishment Clause. Ibid.

B

After receiving this letter, Mr. Kennedy offered a brief prayer following the October 16 game. See id. , at 90. When he bowed his head at midfield after the game, "most [Bremerton] players were ... engaged in the traditional singing of the school fight song to the audience." Ibid . Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. See id. , at 82, 297.

This event spurred media coverage of Mr. Kennedy's dilemma and a public response from the District. The District placed robocalls to parents to inform them that public access to the field is forbidden; it posted signs and made announcements at games saying the same thing; and it had the Bremerton Police secure the field in future games. Id. , at 100–101, 354–355. Subsequently, the District superintendent explained in an October 20 email to the leader of a state association of school administrators that "the coach moved on from leading prayer with kids, to taking...