KENNEDY v. BREMERTON SCHOOL DIST.

597 U. S. ____ (2022)

(Case Syllabus edited by Author)

Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer. Mr. Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. He also moved for a preliminary injunction requiring the District to reinstate him. The District Court denied that motion and the Ninth Circuit affirmed. After the parties engaged in discovery, they filed cross-motions for summary judgment. The District Court found that the “ ‘sole reason ” for the District’s decision to suspend Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after three games in October 2015. 443 F. Supp. 3d 1223, 1231. The District Court granted summary judgment to the District and the Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges. 4 F. 4th 910, 911. Several dissenters argued that the panel applied a flawed understanding of the Establishment Clause reflected in Lemon v. Kurtzman, 403 U. S. 602, and that this Court has abandoned Lemon’s “ahistorical, atextual” approach to discerning Establishment Clause violations. 4 F. 4th, at 911, and n. 3.

Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

(a) Mr. Kennedy contends that the District’s conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. Where the Free Exercise Clause protects religious exercises, the Free Speech Clause provides overlapping protection for expressive religious activities. See, e.g., Widmar v. Vincent, 454 U. S. 263, 269, n. 6. A plaintiff must demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries his or her burden, the defendant must show that its actions were nonetheless justified and appropriately tailored.

(1) Mr. Kennedy discharged his burden under the Free Exercise Clause. The Court’s precedents permit a plaintiff to demonstrate a free exercise violation multiple ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879–881. Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny, under which the government must demonstrate its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546.

Here, no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving “thanks through prayer” briefly “on the playing field” at the conclusion of each game he coaches. App. 168, 171. The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned “object.” The District explained that it could not allow an on-duty employee to engage in religious conduct even though it allowed other on-duty employees to engage in personal secular conduct. The District’s performance evaluation after the 2015 football season also advised against rehiring Mr. Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement was not applied in an evenhanded way. The District thus conceded that its policies were neither neutral nor generally applicable.

(2) Mr. Kennedy also discharged his burden under the Free Speech Clause. The First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506. But teachers and coaches are also government employees paid in part to speak on the government’s behalf and to convey its intended messages. To account for the complexity associated with the interplay between free speech rights and government employment, this Court’s decisions in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Garcetti v. Ceballos, 547 U. S. 410, and related cases suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. When an employee “speaks as a citizen addressing a matter of public concern,” the Court’s cases indicate that the First Amendment may be implicated and courts should proceed to a second step. Id., at 423. At this step, courts should engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Ibid. At the first step of the Pickering–Garcetti inquiry, the parties’ disagreement centers on one question: Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?

When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. Lane v. Franks, 573 U. S. 228, 240. He did not speak pursuant to government policy and was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee. Garcetti, 547 U. S., at 421. The timing and circumstances of Mr. Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirms that Mr. Kennedy did not offer his prayers while acting within the scope of his duties as a coach. It is not dispositive that Coach Kennedy served as a role model and remained on duty after games. To hold otherwise is to posit an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control. Garcetti, 547 U. S., at 424. That Mr. Kennedy used available time to pray does not transform his speech into government speech. Acknowledging that Mr. Kennedy’s prayers represented his own private speech means he has carried his threshold burden. Under the Pickering–Garcetti framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee’s private speech on a matter of public concern. See Lane, 573 U. S., at 242.

(3) Whether one views the case through the lens of the Free Exercise or Free Speech Clause, at this point the burden shifts to the District. Under the Free Exercise Clause, a government entity normally must satisfy at least “strict scrutiny,” showing that its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end. See Lukumi, 508 U. S., at 533. A similar standard generally obtains under the Free Speech Clause. See Reed v. Town of Gilbert, 576 U. S. 155, 171. The District asks the Court to apply to Mr. Kennedy’s claims the more lenient second-step Pickering–Garcetti test, or alternatively, intermediate scrutiny. The Court concludes, however, that the District cannot sustain its burden under any standard.

i. The District, like the Ninth Circuit below, insists Mr. Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny. The Lemon approach called for an examination of a law’s purposes, effects, and potential for entanglement with religion. Lemon, 403 U. S., at 612–613. In time, that approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593. But—given the apparent “shortcomings” associated with Lemon’s “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause—this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion v. American Humanist Assn., 588 U. S. ___, ___ (plurality opinion).

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ ” Town of Greece v. Galloway, 572 U. S. 565, 576. A natural reading of the First Amendment suggests that the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13, 15. An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.” Town of Greece, at 575. The District and the Ninth Circuit erred by failing to heed this guidance.

ii. The District next attempts to justify its suppression of Mr. Kennedy’s religious activity by arguing that doing otherwise would coerce students to pray. The Ninth Circuit did not adopt this theory in proceedings below and evidence of coercion in this record is absent. The District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law—impermissibly coercive on students. A rule that the only acceptable government role models for students are those who eschew any visible religious expression would undermine a long constitutional tradition in which learning how to tolerate diverse expressive activities has always been “part of learning how to live in a pluralistic society.” Lee v. Wesiman, 505 U. S. 577, 590. No historically sound understanding of the Establishment Clause begins to “mak[e] it necessary for government to be hostile to religion” in this way. Zorach v. Clauson, 343 U. S. 306, 314.

iii. There is no conflict between the constitutional commands of the First Amendment in this case. There is only the “mere shadow” of a conflict, a false choice premised on a misconstruction of the Establishment Clause. School Dist. of Abington Township v. Schempp, 374 U. S. 203, 308 (Goldberg, J., concurring). A government entity’s concerns about phantom constitutional violations do not justify actual violations of an individual’s First Amendment rights.

(c) Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims.

991 F. 3d 1004, reversed.

Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Barrett, JJ., joined, and in which Kavanaugh, J., joined, except as to Part III–B. THOMAS, J., and Alito, J., filed concurring opinions. Sotomayor, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined.