{"id":520,"date":"2022-06-29T11:44:22","date_gmt":"2022-06-29T11:44:22","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/?post_type=chapter&p=520"},"modified":"2022-06-29T11:53:48","modified_gmt":"2022-06-29T11:53:48","slug":"kennedy-v-bremerton-school-dist","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/chapter\/kennedy-v-bremerton-school-dist\/","title":{"raw":"KENNEDY v. BREMERTON SCHOOL DIST.","rendered":"KENNEDY v. BREMERTON SCHOOL DIST."},"content":{"raw":"

KENNEDY v. BREMERTON SCHOOL DIST.<\/strong><\/p>\r\n

597 U. S. ____ (2022)<\/strong><\/p>\r\n

(Case Syllabus edited by Author)<\/p>\r\n

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\u2019s actions violated the\u00a0First Amendment\u2019s 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 \u201c\u00a0\u2018sole reason\u00a0\u201d for the District\u2019s decision to suspend Mr. Kennedy was its perceived \u201crisk of constitutional liability\u201d under the Establishment Clause for his \u201creligious conduct\u201d after three games in October 2015. 443 F.\u00a0Supp. 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\u00a0Lemon\u00a0<\/em>v.\u00a0Kurtzman<\/em>,\u00a0403 U.\u00a0S. 602, and that this Court has abandoned\u00a0Lemon<\/em>\u2019s \u201cahistorical, atextual\u201d approach to discerning Establishment Clause violations. 4 F. 4th, at 911, and\u00a0<\/em>n. 3.<\/p>\r\n

Held<\/em><\/strong>:<\/strong>\u00a0The Free Exercise and Free Speech Clauses of the\u00a0First Amendment\u00a0protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.<\/p>\r\n

(a)\u00a0Mr. Kennedy contends that the District\u2019s conduct violated both the Free Exercise and Free Speech Clauses of the\u00a0First Amendment. Where the Free Exercise Clause protects religious exercises, the Free Speech Clause provides overlapping protection for expressive religious activities. See,\u00a0e.g.<\/em>,\u00a0Widmar\u00a0<\/em>v.\u00a0Vincent<\/em>,\u00a0454 U.\u00a0S. 263, 269, n.\u00a06. 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.<\/p>\r\n

(1)\u00a0Mr. Kennedy discharged his burden under the Free Exercise Clause. The Court\u2019s 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 \u201cneutral\u201d or \u201cgenerally applicable.\u201d\u00a0Employment Div.<\/em>,\u00a0Dept. of Human Resources of Ore.<\/em>\u00a0v.\u00a0Smith<\/em>,\u00a0494 U.\u00a0S. 872, 879\u2013881. 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.\u00a0S<\/em>ee,\u00a0e.g.,<\/em>\u00a0Church of Lukumi Babalu Aye<\/em>,\u00a0Inc.\u00a0<\/em>v.\u00a0Hialeah<\/em>,\u00a0508 U.\u00a0S. 520, 546.<\/p>\r\n

Here, no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving \u201cthanks through prayer\u201d briefly \u201con the playing field\u201d 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\u00a0only<\/em>\u00a0for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy\u2019s brief prayer, the District\u2019s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy\u2019s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District\u2019s unquestioned \u201cobject.\u201d The District explained that it could not allow an on-duty employee to engage in\u00a0religious<\/em>\u00a0conduct even though it allowed other on-duty employees to engage in personal secular conduct. The District\u2019s 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.<\/p>\r\n

(2)\u00a0Mr. Kennedy also discharged his burden under the Free Speech Clause. The\u00a0First Amendment\u2019s protections extend to \u201cteachers and students,\u201d neither of whom \u201cshed their constitutional rights to freedom of speech or expression at the schoolhouse gate.\u201d\u00a0Tinker\u00a0<\/em>v.\u00a0Des Moines Independent Community School Dist.<\/em>,\u00a0393 U.\u00a0S. 503, 506. But teachers and coaches are also government employees paid in part to speak on the government\u2019s 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\u2019s decisions in\u00a0Pickering\u00a0<\/em>v.\u00a0Board of Ed. of Township High School Dist. 205<\/em>,\u00a0Will Cty.<\/em>,\u00a0391 U.\u00a0S. 563, and\u00a0Garcetti<\/em>\u00a0v.\u00a0Ceballos<\/em>,\u00a0547 U.\u00a0S. 410, and related cases\u00a0<\/em>suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. When an employee \u201cspeaks as a citizen addressing a matter of public concern,\u201d the Court\u2019s cases indicate that the\u00a0First Amendment\u00a0may be implicated and courts should proceed to a second step.\u00a0Id.<\/em>, at 423. At this step, courts should engage in \u201ca delicate balancing of the competing interests surrounding the speech and its consequences.\u201d\u00a0Ibid<\/em>. At the first step of the\u00a0Pickering<\/em>\u2013Garcetti\u00a0<\/em>inquiry, the parties\u2019 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?<\/p>\r\n

When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech \u201cordinarily within the scope\u201d of his duties as a coach.\u00a0Lane\u00a0<\/em>v.\u00a0Franks<\/em>,\u00a0573 U.\u00a0S. 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\u2019s prayers did not \u201cow[e their] existence\u201d to Mr. Kennedy\u2019s responsibilities as a public employee.\u00a0Garcetti<\/em>, 547 U.\u00a0S., at 421. The timing and circumstances of Mr. Kennedy\u2019s prayers\u2014during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities\u2014confirms 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 \u201cexcessively broad job descriptio[n]\u201d by treating everything teachers and coaches say in the workplace as government speech subject to government control.\u00a0Garcetti<\/em>, 547 U.\u00a0S., at 424. That Mr. Kennedy used available time to pray does not transform his speech into government speech. Acknowledging that Mr. Kennedy\u2019s prayers represented his own private speech means he has carried his threshold burden. Under the\u00a0Pickering\u2013Garcetti<\/em>\u00a0framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee\u2019s private speech on a matter of public concern. See\u00a0Lane<\/em>, 573 U.\u00a0S., at 242.<\/p>\r\n

(3)\u00a0Whether 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 \u201cstrict scrutiny,\u201d showing that its restrictions on the plaintiff\u2019s protected rights serve a compelling interest and are narrowly tailored to that end. See\u00a0Lukumi<\/em>, 508 U.\u00a0S., at 533. A similar standard generally obtains under the Free Speech Clause. See\u00a0Reed\u00a0<\/em>v.\u00a0Town of Gilbert<\/em>,\u00a0576 U.\u00a0S. 155, 171. The District asks the Court to apply to Mr. Kennedy\u2019s claims the more lenient second-step\u00a0Pickering<\/em>\u2013Garcetti<\/em>\u00a0test, or alternatively, intermediate scrutiny. The Court concludes, however, that the District cannot sustain its burden under any standard.<\/p>\r\n

i.\u00a0The District, like the Ninth Circuit below, insists Mr. Kennedy\u2019s rights to religious exercise and free speech must yield to the District\u2019s interest in avoiding an Establishment Clause violation under\u00a0Lemon\u00a0<\/em>and its progeny. The\u00a0Lemon<\/em>\u00a0approach called for an examination of a law\u2019s purposes, effects, and potential for entanglement with religion.\u00a0Lemon<\/em>, 403 U.\u00a0S., at 612\u2013613. In time, that approach also came to involve estimations about whether a \u201creasonable observer\u201d would consider the government\u2019s challenged action an \u201cendorsement\u201d of religion. See,\u00a0e.g.<\/em>,\u00a0County of Allegheny<\/em>\u00a0v.\u00a0American Civil Liberties Union<\/em>,\u00a0Greater Pittsburgh Chapter<\/em>,\u00a0492 U.\u00a0S. 573, 593. But\u2014given the apparent \u201cshortcomings\u201d associated with\u00a0Lemon\u2019<\/em>s \u201cambitiou[s],\u201d abstract, and ahistorical approach to the Establishment Clause\u2014this Court long ago abandoned\u00a0Lemon<\/em>\u00a0and its endorsement test offshoot.\u00a0American Legion<\/em>\u00a0v.\u00a0American Humanist Assn.<\/em>, 588 U.\u00a0S. ___, ___ (plurality opinion).<\/p>\r\n

In place of\u00a0Lemon<\/em>\u00a0and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by \u201c\u2018reference to historical practices and understandings.\u2019 \u201d\u00a0Town of Greece\u00a0<\/em>v.\u00a0Galloway<\/em>,\u00a0572 U.\u00a0S. 565, 576. A natural reading of the\u00a0First Amendment\u00a0suggests that the Clauses have \u201ccomplementary\u201d purposes, not warring ones where one Clause is always sure to prevail over the others.\u00a0Everson\u00a0<\/em>v.\u00a0Board of Ed. of Ewing<\/em>,\u00a0330 U.\u00a0S. 1, 13, 15. An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some \u201c\u00a0\u2018exception\u2019\u00a0\u201d within the \u201cCourt\u2019s Establishment Clause jurisprudence.\u201d\u00a0Town of Greece<\/em>, at 575. The District and the Ninth Circuit erred by failing to heed this guidance.<\/p>\r\n

ii.\u00a0The District next attempts to justify its suppression of Mr. Kennedy\u2019s 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\u00a0any<\/em>\u00a0visible religious conduct by a teacher or coach should be deemed\u2014without more and as a matter of law\u2014impermissibly 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 \u201cpart of learning how to live in a pluralistic society.\u201d\u00a0Lee\u00a0<\/em>v.\u00a0Wesiman<\/em>,\u00a0505 U.\u00a0S. 577, 590. No historically sound understanding of the Establishment Clause begins to \u201cmak[e] it necessary for government to be hostile to religion\u201d in this way.\u00a0Zorach\u00a0<\/em>v.\u00a0Clauson,\u00a0<\/em>343 U.\u00a0S. 306, 314.<\/p>\r\n

iii. There is no conflict between the constitutional commands of the\u00a0First Amendment\u00a0in this case. There is only the \u201cmere shadow\u201d of a conflict, a false choice premised on a misconstruction of the Establishment Clause.\u00a0School Dist. of Abington Township<\/em>\u00a0v.\u00a0Schempp<\/em>,\u00a0374 U.\u00a0S. 203, 308 (Goldberg, J., concurring). A government entity\u2019s concerns about phantom constitutional violations do not justify actual\u00a0<\/em>violations of an individual\u2019s\u00a0First Amendment\u00a0rights.<\/p>\r\n

(c)\u00a0Respect 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.<\/p>\r\n991 F. 3d 1004, reversed.\r\n

Gorsuch, J., delivered the opinion of the Court, in which\u00a0Roberts, C.\u00a0J., and\u00a0Thomas, Alito, and\u00a0Barrett, JJ., joined, and in which\u00a0Kavanaugh,\u00a0J., joined, except as to Part III\u2013B.\u00a0THOMAS, J., and\u00a0Alito, J., filed concurring opinions.\u00a0Sotomayor, J., filed a dissenting opinion, in which\u00a0Breyer\u00a0and\u00a0Kagan, JJ., joined.<\/p>","rendered":"

KENNEDY v. BREMERTON SCHOOL DIST.<\/strong><\/p>\n

597 U. S. ____ (2022)<\/strong><\/p>\n

(Case Syllabus edited by Author)<\/p>\n

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\u2019s actions violated the\u00a0First Amendment\u2019s 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 \u201c\u00a0\u2018sole reason\u00a0\u201d for the District\u2019s decision to suspend Mr. Kennedy was its perceived \u201crisk of constitutional liability\u201d under the Establishment Clause for his \u201creligious conduct\u201d after three games in October 2015. 443 F.\u00a0Supp. 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\u00a0Lemon\u00a0<\/em>v.\u00a0Kurtzman<\/em>,\u00a0403 U.\u00a0S. 602, and that this Court has abandoned\u00a0Lemon<\/em>\u2019s \u201cahistorical, atextual\u201d approach to discerning Establishment Clause violations. 4 F. 4th, at 911, and\u00a0<\/em>n. 3.<\/p>\n

Held<\/em><\/strong>:<\/strong>\u00a0The Free Exercise and Free Speech Clauses of the\u00a0First Amendment\u00a0protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.<\/p>\n

(a)\u00a0Mr. Kennedy contends that the District\u2019s conduct violated both the Free Exercise and Free Speech Clauses of the\u00a0First Amendment. Where the Free Exercise Clause protects religious exercises, the Free Speech Clause provides overlapping protection for expressive religious activities. See,\u00a0e.g.<\/em>,\u00a0Widmar\u00a0<\/em>v.\u00a0Vincent<\/em>,\u00a0454 U.\u00a0S. 263, 269, n.\u00a06. 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.<\/p>\n

(1)\u00a0Mr. Kennedy discharged his burden under the Free Exercise Clause. The Court\u2019s 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 \u201cneutral\u201d or \u201cgenerally applicable.\u201d\u00a0Employment Div.<\/em>,\u00a0Dept. of Human Resources of Ore.<\/em>\u00a0v.\u00a0Smith<\/em>,\u00a0494 U.\u00a0S. 872, 879\u2013881. 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.\u00a0S<\/em>ee,\u00a0e.g.,<\/em>\u00a0Church of Lukumi Babalu Aye<\/em>,\u00a0Inc.\u00a0<\/em>v.\u00a0Hialeah<\/em>,\u00a0508 U.\u00a0S. 520, 546.<\/p>\n

Here, no one questions that Mr. Kennedy seeks to engage in a sincerely motivated religious exercise involving giving \u201cthanks through prayer\u201d briefly \u201con the playing field\u201d 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\u00a0only<\/em>\u00a0for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy\u2019s brief prayer, the District\u2019s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy\u2019s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District\u2019s unquestioned \u201cobject.\u201d The District explained that it could not allow an on-duty employee to engage in\u00a0religious<\/em>\u00a0conduct even though it allowed other on-duty employees to engage in personal secular conduct. The District\u2019s 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.<\/p>\n

(2)\u00a0Mr. Kennedy also discharged his burden under the Free Speech Clause. The\u00a0First Amendment\u2019s protections extend to \u201cteachers and students,\u201d neither of whom \u201cshed their constitutional rights to freedom of speech or expression at the schoolhouse gate.\u201d\u00a0Tinker\u00a0<\/em>v.\u00a0Des Moines Independent Community School Dist.<\/em>,\u00a0393 U.\u00a0S. 503, 506. But teachers and coaches are also government employees paid in part to speak on the government\u2019s 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\u2019s decisions in\u00a0Pickering\u00a0<\/em>v.\u00a0Board of Ed. of Township High School Dist. 205<\/em>,\u00a0Will Cty.<\/em>,\u00a0391 U.\u00a0S. 563, and\u00a0Garcetti<\/em>\u00a0v.\u00a0Ceballos<\/em>,\u00a0547 U.\u00a0S. 410, and related cases\u00a0<\/em>suggest proceeding in two steps. The first step involves a threshold inquiry into the nature of the speech at issue. When an employee \u201cspeaks as a citizen addressing a matter of public concern,\u201d the Court\u2019s cases indicate that the\u00a0First Amendment\u00a0may be implicated and courts should proceed to a second step.\u00a0Id.<\/em>, at 423. At this step, courts should engage in \u201ca delicate balancing of the competing interests surrounding the speech and its consequences.\u201d\u00a0Ibid<\/em>. At the first step of the\u00a0Pickering<\/em>\u2013Garcetti\u00a0<\/em>inquiry, the parties\u2019 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?<\/p>\n

When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech \u201cordinarily within the scope\u201d of his duties as a coach.\u00a0Lane\u00a0<\/em>v.\u00a0Franks<\/em>,\u00a0573 U.\u00a0S. 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\u2019s prayers did not \u201cow[e their] existence\u201d to Mr. Kennedy\u2019s responsibilities as a public employee.\u00a0Garcetti<\/em>, 547 U.\u00a0S., at 421. The timing and circumstances of Mr. Kennedy\u2019s prayers\u2014during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities\u2014confirms 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 \u201cexcessively broad job descriptio[n]\u201d by treating everything teachers and coaches say in the workplace as government speech subject to government control.\u00a0Garcetti<\/em>, 547 U.\u00a0S., at 424. That Mr. Kennedy used available time to pray does not transform his speech into government speech. Acknowledging that Mr. Kennedy\u2019s prayers represented his own private speech means he has carried his threshold burden. Under the\u00a0Pickering\u2013Garcetti<\/em>\u00a0framework, a second step remains where the government may seek to prove that its interests as employer outweigh even an employee\u2019s private speech on a matter of public concern. See\u00a0Lane<\/em>, 573 U.\u00a0S., at 242.<\/p>\n

(3)\u00a0Whether 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 \u201cstrict scrutiny,\u201d showing that its restrictions on the plaintiff\u2019s protected rights serve a compelling interest and are narrowly tailored to that end. See\u00a0Lukumi<\/em>, 508 U.\u00a0S., at 533. A similar standard generally obtains under the Free Speech Clause. See\u00a0Reed\u00a0<\/em>v.\u00a0Town of Gilbert<\/em>,\u00a0576 U.\u00a0S. 155, 171. The District asks the Court to apply to Mr. Kennedy\u2019s claims the more lenient second-step\u00a0Pickering<\/em>\u2013Garcetti<\/em>\u00a0test, or alternatively, intermediate scrutiny. The Court concludes, however, that the District cannot sustain its burden under any standard.<\/p>\n

i.\u00a0The District, like the Ninth Circuit below, insists Mr. Kennedy\u2019s rights to religious exercise and free speech must yield to the District\u2019s interest in avoiding an Establishment Clause violation under\u00a0Lemon\u00a0<\/em>and its progeny. The\u00a0Lemon<\/em>\u00a0approach called for an examination of a law\u2019s purposes, effects, and potential for entanglement with religion.\u00a0Lemon<\/em>, 403 U.\u00a0S., at 612\u2013613. In time, that approach also came to involve estimations about whether a \u201creasonable observer\u201d would consider the government\u2019s challenged action an \u201cendorsement\u201d of religion. See,\u00a0e.g.<\/em>,\u00a0County of Allegheny<\/em>\u00a0v.\u00a0American Civil Liberties Union<\/em>,\u00a0Greater Pittsburgh Chapter<\/em>,\u00a0492 U.\u00a0S. 573, 593. But\u2014given the apparent \u201cshortcomings\u201d associated with\u00a0Lemon\u2019<\/em>s \u201cambitiou[s],\u201d abstract, and ahistorical approach to the Establishment Clause\u2014this Court long ago abandoned\u00a0Lemon<\/em>\u00a0and its endorsement test offshoot.\u00a0American Legion<\/em>\u00a0v.\u00a0American Humanist Assn.<\/em>, 588 U.\u00a0S. ___, ___ (plurality opinion).<\/p>\n

In place of\u00a0Lemon<\/em>\u00a0and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by \u201c\u2018reference to historical practices and understandings.\u2019 \u201d\u00a0Town of Greece\u00a0<\/em>v.\u00a0Galloway<\/em>,\u00a0572 U.\u00a0S. 565, 576. A natural reading of the\u00a0First Amendment\u00a0suggests that the Clauses have \u201ccomplementary\u201d purposes, not warring ones where one Clause is always sure to prevail over the others.\u00a0Everson\u00a0<\/em>v.\u00a0Board of Ed. of Ewing<\/em>,\u00a0330 U.\u00a0S. 1, 13, 15. An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some \u201c\u00a0\u2018exception\u2019\u00a0\u201d within the \u201cCourt\u2019s Establishment Clause jurisprudence.\u201d\u00a0Town of Greece<\/em>, at 575. The District and the Ninth Circuit erred by failing to heed this guidance.<\/p>\n

ii.\u00a0The District next attempts to justify its suppression of Mr. Kennedy\u2019s 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\u00a0any<\/em>\u00a0visible religious conduct by a teacher or coach should be deemed\u2014without more and as a matter of law\u2014impermissibly 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 \u201cpart of learning how to live in a pluralistic society.\u201d\u00a0Lee\u00a0<\/em>v.\u00a0Wesiman<\/em>,\u00a0505 U.\u00a0S. 577, 590. No historically sound understanding of the Establishment Clause begins to \u201cmak[e] it necessary for government to be hostile to religion\u201d in this way.\u00a0Zorach\u00a0<\/em>v.\u00a0Clauson,\u00a0<\/em>343 U.\u00a0S. 306, 314.<\/p>\n

iii. There is no conflict between the constitutional commands of the\u00a0First Amendment\u00a0in this case. There is only the \u201cmere shadow\u201d of a conflict, a false choice premised on a misconstruction of the Establishment Clause.\u00a0School Dist. of Abington Township<\/em>\u00a0v.\u00a0Schempp<\/em>,\u00a0374 U.\u00a0S. 203, 308 (Goldberg, J., concurring). A government entity\u2019s concerns about phantom constitutional violations do not justify actual\u00a0<\/em>violations of an individual\u2019s\u00a0First Amendment\u00a0rights.<\/p>\n

(c)\u00a0Respect 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.<\/p>\n

991 F. 3d 1004, reversed.<\/p>\n

Gorsuch, J., delivered the opinion of the Court, in which\u00a0Roberts, C.\u00a0J., and\u00a0Thomas, Alito, and\u00a0Barrett, JJ., joined, and in which\u00a0Kavanaugh,\u00a0J., joined, except as to Part III\u2013B.\u00a0THOMAS, J., and\u00a0Alito, J., filed concurring opinions.\u00a0Sotomayor, J., filed a dissenting opinion, in which\u00a0Breyer\u00a0and\u00a0Kagan, JJ., joined.<\/p>\n","protected":false},"author":99639,"menu_order":13,"template":"","meta":{"_candela_citation":"[]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-520","chapter","type-chapter","status-publish","hentry"],"part":158,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapters\/520","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/wp\/v2\/users\/99639"}],"version-history":[{"count":4,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapters\/520\/revisions"}],"predecessor-version":[{"id":524,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapters\/520\/revisions\/524"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/parts\/158"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapters\/520\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/wp\/v2\/media?parent=520"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/pressbooks\/v2\/chapter-type?post=520"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/wp\/v2\/contributor?post=520"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/wp-json\/wp\/v2\/license?post=520"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}