142 S. Ct. 2407 (2022)
Joseph Kennedy began working as a football coach at Bremerton High School in 2008 after nearly two decades of service in the Marine Corps.1
Mr. Kennedy made it a practice to give thanks through prayer on the playing field at the conclusion of each game he coaches. He offered his prayers after the players and coaches had shaken hands, by taking a knee at the 50-yard line and praying quietly for approximately 30 seconds.2 Initially Kennedy prayed on his own. Over time some players asked whether they could pray alongside him. The number of players who joined him eventually grew to include most of the team after some games.3
In September 2015 the District's superintendent first learned of these practices after an employee from another school commented positively on them to Bremerton's principal.4 On September 17 the superintendent sent Kennedy a letter identifying two problematic practices in which Kennedy had engaged. These included providing inspirational talks with overtly religious references likely constituting prayer with students at midfield following games. They also included leading students and coaching staff in a prayer in the locker-room tradition that predated his involvement.5 The District instructed Kennedy to avoid any motivational talks with students that included religious expression including prayer. It also instructed him to avoid suggesting encouraging or discouraging or supervising any prayers of students.6
After receiving the letter Kennedy ended the tradition of offering locker-room prayers. He ended his practice of incorporating religious references or prayer into his postgame motivational talks to his team on the field.7 On October 14 through counsel 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.8 He asked the District to allow him to continue that private religious expression alone. He emphasized that he sought only the opportunity to wait until the game is over and the players have left the field and then walk to mid-field to say a short private personal prayer.9
On October 16 shortly before the game that day the District responded with another letter. It acknowledged that Kennedy had complied with the directives in its September 17 letter. Yet it forbade him from engaging in any overt actions that could appear to a reasonable observer to endorse prayer while he is on duty as a District-paid coach.10 After receiving this letter Kennedy offered a brief prayer following the October 16 game when most Bremerton players were engaged in the traditional singing of the school fight song to the audience.11 Though Kennedy was alone when he began to pray players from the other team and members of the community joined him before he finished.12
After the October 23 game ended Kennedy knelt at the 50-yard line where no one joined him and bowed his head for a brief quiet prayer.13 After the final relevant football game on October 26 Kennedy again knelt alone to offer a brief prayer as the players engaged in postgame traditions while other adults gathered around him on the field.14 Shortly after the October 26 game the District placed Kennedy on paid administrative leave and prohibited him from participating in any capacity in football program activities.15 In a letter explaining the reasons for this disciplinary action the superintendent criticized Kennedy for engaging in public and demonstrative religious conduct while still on duty as an assistant coach by offering a prayer following the games on October 16 23 and 26.16
While Kennedy received uniformly positive evaluations every other year of his coaching career after the 2015 season ended in November the District gave him a poor performance evaluation advising against rehiring him on the grounds that he failed to follow district policy regarding religious expression and failed to supervise student-athletes after games.17 Kennedy did not return for the next season.18 After these events Kennedy sued in federal court alleging that the District's actions violated the First Amendment's Free Speech and Free Exercise Clauses and moved for a preliminary injunction requiring the District to reinstate him.19 The District Court denied that motion and the Ninth Circuit affirmed.20 After the parties engaged in discovery they filed cross-motions for summary judgment.21 The District Court granted summary judgment to the District and the Ninth Circuit affirmed.22 The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges.23 The Supreme Court granted certiorari.24
Whether the Bremerton School District violated Joseph Kennedy's rights under the Free Exercise Clause by restricting his postgame prayers?25
The Free Exercise Clause of the First Amendment, applicable to the States through the Fourteenth Amendment, protects against government burdens on sincere religious exercise imposed pursuant to policies that are not neutral or generally applicable. Such policies trigger strict scrutiny requiring a compelling interest and narrow tailoring.26
Yes. Joseph Kennedy engaged in a sincere religious exercise by offering brief, quiet prayers of thanks at midfield after games. He maintained this practice consistently and without leading students after the District's initial directives.27 The District burdened this practice through policies that were not neutral. Its September 17 and October 16 letters explicitly targeted religious conduct by prohibiting overt actions appearing to endorse prayer while permitting comparable secular personal activities by on-duty staff.28 The policies also failed general applicability. The postgame supervisory requirement cited in Kennedy's poor evaluation was applied only to his religious exercise and not to other coaches who briefly attended to personal matters after games.29
These facts establish that the District's actions were not neutral or generally applicable. This shifted the burden to the District to satisfy strict scrutiny. The District could not meet that burden under any standard because its sole justification rested on a mistaken view of Establishment Clause obligations.30
The Bremerton School District violated Joseph Kennedy's rights under the Free Exercise Clause.31
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Justice Thomas joined the Court's opinion because it correctly holds that Bremerton School District violated Joseph Kennedy's First Amendment rights.32 He wrote separately to emphasize that the Court's opinion does not resolve two issues related to Kennedy's free-exercise claim.33 First, the Court refrains from deciding whether or how public employees' rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public.34
In striking the appropriate balance between public employees' constitutional rights and the realities of the employment context, the Court has often considered whether the asserted employee right implicates the basic concerns of the relevant constitutional provision. It has also considered whether the claimed right can more readily give way to the requirements of the government as employer.35 Second, the Court also does not decide what burden a government employer must shoulder to justify restricting an employee's religious expression. This is because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny.36 While the Court has many public-employee precedents addressing how the interest-balancing test set out in Pickering applies under the Free Speech Clause, the Court has never before applied Pickering balancing to a claim brought under the Free Exercise Clause.37
A government employer's burden therefore might differ depending on which First Amendment guarantee a public employee invokes.38
Whether Joseph Kennedy offered his postgame prayers in his capacity as a private citizen or as government speech attributable to the District?39
Under the Pickering-Garcetti framework, public employee speech receives First Amendment protection when the employee speaks as a private citizen on a matter of public concern rather than pursuant to official duties. The inquiry focuses practically on whether the speech is ordinarily within the scope of employment and owes its existence to job responsibilities.40
Yes. Kennedy offered his three prayers during the postgame period when coaches were free to attend to personal matters such as checking phones or greeting family. The prayers did not involve instructing players, discussing strategy, or conveying any government-created message.41 The prayers occurred while students were occupied with other activities like singing the fight song.
Kennedy did not speak pursuant to District policy or seek to fulfill any responsibility for which he was paid.42 Although Kennedy remained on duty and served as a role model, treating all workplace speech by teachers and coaches as government speech would rely on an excessively broad job description that the precedents reject. The timing, circumstances, and content confirm the prayers constituted private speech on a matter of public concern.43
Joseph Kennedy offered his postgame prayers in his capacity as a private citizen rather than as government speech attributable to the District.44
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Justice Alito joined the opinion on the understanding that it addresses expression occurring while at work but during a time when a brief lull in duties apparently gave the employee a few free moments to engage in private activities.45 When he engaged in this expression, he acted in a purely private capacity.46 The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed.47
On that understanding, Justice Alito joined the opinion in full, highlighting the unique factual setting of private speech during a momentary break from coaching duties.48
Whether the Bremerton School District violated Joseph Kennedy's rights under the Free Speech Clause by restricting his postgame prayers?49
The Free Speech Clause protects public employees speaking as private citizens on matters of public concern. After that showing the government must justify restrictions by showing its interests as employer outweigh the employee's speech interests under the second step of the Pickering-Garcetti framework or a comparable standard of scrutiny.50
Yes. After establishing that Kennedy spoke as a private citizen on a matter of public concern, the burden shifted to the District to justify its restrictions.51 The District could not satisfy this burden under strict scrutiny, intermediate scrutiny, or the more lenient Pickering-Garcetti balancing test. Its sole asserted interest was avoiding an Establishment Clause violation that did not exist under a proper historical understanding of that Clause.
The District's policies suppressed Kennedy's private religious speech while allowing other personal secular conduct. No evidence supported claims of actual coercion or disruption sufficient to outweigh the protected speech.52
The Bremerton School District violated Joseph Kennedy's rights under the Free Speech Clause.53
Whether the District's interest in avoiding an Establishment Clause violation justified its restrictions on Kennedy's religious exercise and speech?54
The Establishment Clause must be interpreted by reference to historical practices and understandings rather than the Lemon test or endorsement inquiry. Government concerns about phantom violations do not justify actual infringements of Free Exercise or Free Speech rights. There is no conflict between the Clauses when private religious observance is at issue.55
No. The District relied on a mistaken view that the Establishment Clause required suppression of Kennedy's private prayers to avoid perceived endorsement by a reasonable observer. This is an approach the Court has abandoned in favor of history and tradition.56 No evidence in the record showed coercion of students. Kennedy prayed alone or with non-students during the relevant games.
Students were otherwise engaged. The District itself conceded the absence of direct coercion.57 The District's policies created a false choice between Clauses by treating Kennedy's private speech as government endorsement. The Constitution protects such personal observance and does not require hostility to religion or demand that religious speech receive second-class treatment compared to secular activity.5859
The District's interest in avoiding an Establishment Clause violation did not justify its restrictions on Kennedy's religious exercise and speech.60
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Joined by Justices Breyer And Kagan
Justice Sotomayor dissented, joined by Justices Breyer and Kagan, arguing that the majority misread the record by isolating Kennedy's final prayers from his years-long practice of leading students in prayer at the same time and place.61 She contended that the Establishment Clause prohibits incorporating public religious displays into school events under longstanding precedents addressing endorsement and coercion in the school context, including Engel, Schempp, Lee, and Santa Fe.62 The dissent emphasized that Kennedy's conduct created a longstanding pattern of demonstrative prayer visible to students and the public. Students faced social pressure to participate. The decision weakens the separation of church and state by elevating one employee's religious exercise over students' rights and institutional neutrality.63
Justice Sotomayor stressed that the majority's approach disregards the unique vulnerabilities of students and the need for government neutrality in public schools.64