Kennedy v. Bremerton School Dist.

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 2
Pages 507–579
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 27, 2022
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
OCTOBER
TERM, 2021
507
Syllabus
KENNEDY v. BREMERTON SCHOOL DISTRICT
certiorari
to the united states court of appeals for
the ninth circuit
No. 21–418. Argued April 25, 2022—Decided June 27, 2022
Petitioner Joseph Kennedy lost his job as a high school football coach in
the Bremerton School District after he knelt at midfeld after games to
offer a quiet personal prayer. Mr. Kennedy sued in federal court, alleg-
ing 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 affrmed. After the parties
engaged in discovery, they fled cross-motions for summary judgment.
The District Court found that the “ `sole reason' ” for the District's deci-
sion 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 affrmed. 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 fawed understanding of the
Establishment Clause refected in Lemon v. Kurtzman, 403 U. S. 602,
and that this Court has abandoned Lemon's “ahistorical, atextual” ap-
proach to discerning Establishment Clause violations. 4 F. 4th, at 945–
947, and n. 3.
Held: The Free Exercise and Free Speech Clauses of the First Amend-
ment protect an individual engaging in a personal religious observance
from government reprisal; the Constitution neither mandates nor per-
mits the government to suppress such religious expression. Pp. 523–544.
(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 justi-
fed and appropriately tailored. Pp. 523–542.
(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 govern-
ment entity has burdened his sincere religious practice pursuant to a

Page Proof Pending Publication
508 KENNEDY
v. BREMERTON SCHOOL DIST.
Syllabus
policy that is not “neutral” or “generally applicable.” Employment
D
iv., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879–881.
Failing either the neutrality or general applicability test is suffcient to
trigger strict scrutiny, under which the government must demonstrate
its course was justifed by a compelling state interest and was narrowly
tailored in pursuit of that interest. See, e. g., Church of Lukumi Ba-
balu Aye, Inc. v. Hialeah, 508 U. S. 520, 546.
Here, no one questions that Mr. Kennedy seeks to engage in a sin-
cerely motivated religious exercise involving giving “thanks through
prayer” briefy “on the playing feld” 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 gener-
ally applicable. By its own admission, the District sought to restrict
Mr. Kennedy's actions at least in part because of their religious charac-
ter. Prohibiting a religious practice was thus the District's unques-
tioned “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 ad-
vised against rehiring Mr. Kennedy on the ground that he failed to su-
pervise student-athletes after games, but any sort of postgame supervi-
sory requirement was not applied in an evenhanded way. The District
thus conceded that its policies were neither neutral nor generally appli-
cable. Pp. 524–527.
(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 frst 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

Cite
as: 597 U. S. 507 (2022)
509
Syllabus
and its consequences.” Ibid. At the frst step of the Pickering–
Garce
tti 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 gover nment speech attr ibut able 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, dis-
cussing strategy, encouraging better on-feld 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. Kenne-
dy'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 briefy to personal
matters and students were engaged in other activities—confrms 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. Id., 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 Picker-
ing–Garcetti framework, a second step remains where the government
may seek to prove that its interests as employer outweigh even an em-
ployee's private speech on a matter of public concern. See Lane, 573
U. S., at 242. Pp. 527–531.
(3) Whether one views the case through the lens of the Free Exer-
cise or Free Speech Clause, at this point the burden shifts to the Dis-
trict. 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 nar-
rowly 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 con-
cludes, however, that the District cannot sustain its burden under any
standard. Pp. 531–543.
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
Page Proof Pending Publication

Page Proof Pending Publication
510 KENNEDY
v. BREMERTON SCHOOL DIST.
Syllabus
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 in-
volve estimations about whether a “reasonable observer” would con-
sider 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 appar-
ent “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 Le-
gion 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 repre-
sented the rule rather than some “ `exception' ” within the “Court's Es-
tablishment Clause jurisprudence.” Town of Greece, at 575. The Dis-
trict and the Ninth Circuit erred by failing to heed this guidance.
Pp. 532–536.
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. Wesi-
man, 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. Pp. 536–542.
iii. There is no confict between the constitutional commands of
the First Amendment in this case. There is only the “mere shadow” of
a confict, a false choice premised on a misconstruction of the Establish-

Cite
as: 597 U. S. 507 (2022)
511
Syllabus
ment 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. Pp. 542–543.
(b) 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 man-
dates nor tolerates that kind of discrimination. Mr. Kennedy is entitled
to summary judgment on his religious exercise and free speech claims.
Pp. 543–544.
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 Kava-
naugh, J., joined, except as to Part III–B. Thomas, J., post, p. 544, and
Alito, J., post, p. 545, fled concurring opinions. Sotomayor, J., fled a
dissenting opinion, in which Breyer and Kagan, JJ., joined, post, p. 545.
Paul D. Clement argued the cause for petitioner. With
him on the briefs were Erin E. Murphy, Devin S. Anderson,
Andrew C. Lawrence, Jeffrey Paul Helsdon, Kelly J. Shack-
elford, Jeffrey C. Mateer, Hiram S. Sasser III, David J.
Hacker, Michael D. Berry, Stephanie N. Taub, and Anthony
J. Ferate.
Richard B. Katskee argued the cause for respondent.
With him on the briefs were Bradley Girard and Michael
B. Tierney.*
*Briefs of amici curiae urging reversal were fled for Arizona et al.
by Mark Brnovich, Attorney General of Arizona, Brunn W. Roysden
III, Solicitor General, Michael S. Catlett, Deputy Solicitor General, Kate
B. Sawyer, Assistant Solicitor General, and Katlyn J. Divis, Assistant At-
torney General, by Ken Paxton, Attorney General of Texas, Judd E. Stone
II, Solicitor General, and Natalie D. Thompson, Assistant Solicitor Gen-
eral, by Ashley Moody, Attorney General of Florida, Henry C. Whitaker,
Solicitor General, and Daniel W. Bell, Chief Deputy Solicitor General, by
Treg R. Taylor, Attorney General of Alaska, Jessica M. Alloway, Solicitor
General, and Katherine Demarest, Assistant Attorney General, and by the
Attorneys General for their respective States as follows: Steve Marshall
Page Proof Pending Publication

Page Proof Pending Publication
512 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
J
oseph Kennedy lost his job as a high school football coach
because he knelt at midfeld after games to offer a quiet
of Alabama, Leslie Rutledge of Arkansas, Christopher M. Carr of Georgia,
Lawrence G. Wasden of Idaho, Theodore E. Rokita of Indiana, Derek
Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of Louisi-
ana, Lynn Fitch of Mississippi, Eric S. Schmitt of Missouri, Austin Knud-
sen of Montana, Douglas J. Peterson of Nebraska, John M. Formella of
New Hampshire, Drew H. Wrigley of North Dakota, Dave Yost of Ohio,
John M. O'Connor of Oklahoma, Alan Wilson of South Carolina, Jason R.
Ravnsborg of South Dakota, Herbert H. Slatery III of Tennessee, Sean D.
Reyes of Utah, Jason Miyares of Virginia, Patrick Morrisey of West Vir-
ginia, and Bridget Hill of Wyoming; for Advancing American Freedom
et al. by Matthew J. Sheehan; for the Alabama Center for Law and Liberty
by Matthew J. Clark; for the America First Legal Foundation by Jonathan
F. Mitchell, Adam K. Mortara, and Gene P. Hamilton; for the America
First Policy Institute by James Baehr, Pamela Jo Bondi, Jessica Hart
Steinmann, and Rachel Jag; for the American Center for Law and Justice
by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and Laura B. Her-
nandez; for the American Constitutional Rights Union by John J. Park,
Jr.; for the American Cornerstone Institute by Edward M. Wenger; for
the American Legion by Noel J. Francisco, David T. Raimer, Christopher
DiPompeo, and Eric C. Rassbach; for the Americans for Prosperity Foun-
dation by Cynthia Fleming Crawford and Casey Mattox; for the Chaplain
Alliance for Religious Liberty by John P. Elwood, Michael A. Johnson,
Dirk C. Phillips, and Aaron P. Bowling; for the Christian Legal Society
by Thomas R. McCarthy; for Current State Legislators by Ryan Anthony
Krieghauser, Joshua Ney, and Alan Vester; for the Ethics and Religious
Liberty Commission of the Southern Baptist Convention et al. by Freder-
ick W. Claybrook, Jr., Steven W. Fitschen, and James A. Davids; for For-
mer Attorneys General Edwin Meese II et al. by Prerak Shah; for Former
Professional Football Players Steve Largent et al. by Gordon D. Todd; for
the Foundation for Individual Rights in Education by Darpana M. Sheth;
for the Foundation for Moral Law by John Eidsmoe; for the Jewish Coali-
tion for Religious Liberty et al. by Howard Slugh; for Liberty Counsel by
Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, and Roger K. Gan-
nam; for Members of Congress by Donald F. McGahn II, John M. Gore,
and Robert Luther III; for the Mountain States Legal Foundation et al.
by Cody J. Wisniewski; for the Notre Dame Law School Religious Liberty
Initiative by Steven A. Engel, Michael H. McGinley, and Richard W. Gar-
nett IV; for the Protect the First Foundation by Gene C. Schaerr, Erik S.

Cite
as: 597 U. S. 507 (2022)
513
Opinion of the Court
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
Jaffe, H. Christopher Bartolomucci, Hannah C. Smith, and Kathryn E.
Tarbert; for The Rutherford Institute by John W. Whitehead; for the
Thomas More Society by Maura K. Quinlan, Thomas Brejcha, and Joan
M. Mannix; for the United States Conference of Catholic Bishops by Lori
H. Windham and William J. Haun; for the World Faith Foundation et al.
by James L. Hirsen, Deborah J. Dewart, and Tami Fitzgerald; for Galen
Black by Steven T. Collis; for Tommy Bowden by Adam M. Foslid and
Daniel M. Samson; for Kirk Cousins et al. by Steffen N. Johnson, Michael
McConnell, John J. Bursch, David A. Cortman, and Tyson C. Langhofer;
for Elisabeth P. DeVos et al. by Matthew T. Martens; and for Darrell
Green by William Wagner and Erin Elizabeth Mersino.
Briefs of amici curiae urging affrmance were fled for the State of New
York et al. by Letitia James, Attorney General of New York, Barbara
D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor
General, and Ester Murdukhayeva, Assistant Deputy Solicitor General,
by Matthew J. Platkin, Acting Attorney General of New Jersey, and by
the Attorneys General for their respective jurisdictions as follows: Rob
Bonta of California, Kathleen Jennings of Delaware, Karl A. Racine of
the District of Columbia, Holly T. Shikada of Hawaii, Kwame Raoul of
Illinois, Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura
Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Min-
nesota, Hector Balderas of New Mexico, and Ellen F. Rosenblum of Ore-
gon; for AASA, The School Superintendents Association, et al. by Charles
A. Rothfeld, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly,
and Eugene R. Fidell; for American Atheists by Geoffrey T. Blackwell; for
the American Civil Liberties Union et al. by Kathleen R. Hartnett, Adam
S. Gershenson, David D. Cole, Daniel Mach, Heather L. Weaver, Cecillia
D. Wang, Nancy Talner, and Taryn M. Darling; for the Baptist Joint Com-
mittee for Religious Liberty et al. by Douglas Laycock, Christopher C.
Lund, K. Hollyn Hollman, Jennifer L. Hawks, Heather E. Kimmel, and
Marc Stern; for Bremerton Community Members et al. by Andrew D. Levy
and Anthony J. May; for the California School Boards Association et al.
by Mark Bresee and Marlon Wadlington; for Church-State Scholars by
Joshua Matz, Raymond P. Tolentino, and Amit R. Vora; for City, County,
and Local Public Employer Organizations by Michael R. Dreeben and Lisa
E. Soronen; for Former Professional Football Players Obafemi D. Ayanba-
dejo, Sr., et al. by David M. Gossett; for the Forum on the Military Chap-
Page Proof Pending Publication

Page Proof Pending Publication
514 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
while his students were otherwise occupied. Still, the
Bremer
ton School District disciplined him anyway. It did
so because it thought anything less could lead a reasonable
observer to conclude (mistakenly) that it endorsed Mr. Ken-
nedy'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 Establish-
ment 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 toler-
ance, not censorship and suppression, for religious and non-
religious 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
laincy et al. by Jonathan K. Youngwood and David Elbaum; for the Free-
dom From Religion Foundation et al. by Patrick Elliott; for the Lambda
Legal Defense and Education Fund, Inc., et al. by Thomas A. Zaccaro,
Jennifer C. Pizer, Stephen B. Kinnaird, and Gregory R. Nevins; for Mem-
bers of the U. S. House of Representatives by Asim M. Bhansali; for the
National Education Association et al. by Alice O'Brien, Jason Walta,
Rhonda Weingarten, and David J. Strom; for Psychology and Neurosci-
ence Scholars by Mark W. Mosier; for Religious and Denominational Orga-
nizations et al. by Gregory M. Lipper; for the Washington State Charter
Schools Association et al. by Christopher A. Brook; for the Washington
State School Directors' Association by Douglas Hallward-Driemeier and
Samuel L. Brenner; for Robert D. Kamenshine by Mr. Kamenshine, pro
se; and for Jo Ann Magistro et al. by Bruce P. Merenstein.
Briefs of amici curiae were fled for The Claremont Institute's Center
for Constitutional Jurisprudence by John C. Eastman and Anthony T.
Caso; for the Family Policy Alliance et al. by Randall L. Wenger and
Jeremy L. Samek; and for the Liberty Justice Center by Daniel R. Suhr.

Cite
as: 597 U. S. 507 (2022)
515
Opinion of the Court
playing feld” at the conclusion of each game. Id., at 168,
171.
In his prayers, Mr. Kennedy sought to express grati-
tude for “what the players had accomplished and for the op-
portunity to be part of their lives through the game of foot-
ball.” 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 “approxi-
mately 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 (CA9 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 i ncor porati ng shor t motivati onal
speeches with his prayer when others were present. See
App., at 170. Separately, the team at times engaged in pre-
game or postgame prayers in the locker room. It seems this
practice was a “school tradition” that predated Mr. Kenne-
dy'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 pres-
sured or encouraged any student to join” his postgame mid-
feld 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 frst learned
of them only in September 2015, after an employee from an-
other 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 super-
intendent identifed “two problematic practices” in which
Page Proof Pending Publication

516 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
Mr. Kennedy had engaged. Id., at 40. First, Mr. Kennedy
had
provided “inspirational talk[s]” that included “overtly re-
ligious references” likely constituting “prayer” with the stu-
dents “at midfeld 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. Ken-
nedy to avoid any motivational “talks with students” that
“include[d] religious expression, including prayer,” and to
avoid “suggest[ing], encourag[ing] (or discourag[ing]), or su-
pervis[ing]” any prayers of students, which students re-
mained 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 reli-
gious conduct” in order to “avoid the perception of endorse-
ment.” 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 en-
dorsement of religious activities.” Ibid.
Af ter receiv i ng the D istr ic t'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 feld. See ibid. Mr. Kennedy further felt pressured to
abandon his practice of saying his own quiet, on-feld post-
game 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 feld. Ibid. By
that point, everyone had left the stadium, and he walked to
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
517
Opinion of the Court
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 officia ls i nfor mi ng them that, because of h is
“sincerely-held religious beliefs,” he felt “compelled” to offer
a “post-game personal prayer” of thanks at midfeld. Id., at
62–63, 172. He asked the District to allow him to continue
that “private religious expression” alone. Id., at 62. Con-
sistent with the District's policy, see id., at 48, Mr. Kennedy
explained that he “neither requests, encourages, nor discour-
ages students from participating in” these prayers, id., at 64.
Mr. Kennedy emphasized that he sought only the opportu-
nity to “wai[t] until the game is over and the players have left
the feld and then wal[k] to mid-feld 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 clarifed that this
meant he was even willing to say his “prayer while the play-
ers 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 stu-
dents, and as requiring him to “fee 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 Dis-
trict 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 feld while students were busy with
other activities—whether heading to the locker room, board-
ing the bus, or perhaps singing the school fght song—the
District issued an ultimatum. It forbade Mr. Kennedy from

518 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
engaging in “any overt actions” that could “appea[r] to a rea-
sonable
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 less would lead it to vio-
late 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 midfeld after the game, “most
[Bremerton] players were . . . engaged in the traditional sing-
ing of the school fght 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 fnished his prayer. See id., at 82, 297.
This event spurred media coverage of Mr. Kennedy's di-
lemma and a public response from the District. The District
placed robocalls to parents to inform them that public access
to the feld is forbidden; it posted signs and made announce-
ments at games saying the same thing; and it had the Brem-
erton Police secure the feld 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 a silent prayer
at the 50 yard line.” Id., at 83. The offcial with whom the
superintendent corresponded acknowledged that the “use of
a silent prayer changes the equation a bit.” Ibid. On Octo-
ber 21, the superintendent further observed to a state offcial
that “[t]he issue is quickly changing as it has shifted from
leading prayer with student athletes, to a coaches [sic] right
to conduct” his own prayer “on the 50 yard line.” Id., at 88.
On October 23, shortly before that evening 's game, the
District wrote Mr. Kennedy again. It expressed “apprecia-
tion” for his “efforts to comply” with the District's directives,
including avoiding “on-the-job prayer with players in the . . .
football program, both in the locker room prior to games as
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
519
Opinion of the Court
well as on the feld immediately following games.” Id., at
90.
The letter also admitted that, during Mr. Kennedy's re-
cent October 16 postgame prayer, his students were other-
wise engaged and not praying with him, and that his prayer
was “feeting.” Id., at 90, 93. Still, the District explained
that a “reasonable observer” could think government en-
dorsement of religion had occurred when a “District em-
ployee, on the feld only by virtue of his employment with
the District, still on duty” engaged in “overtly religious con-
duct.” Id., at 91, 93. The District thus made clear that the
only option it would offer Mr. Kennedy was to allow him
to pray after a game in a “private location” behind closed
doors and “not observable to students or the public.” Id.,
at 93–94.
After the October 23 game ended, Mr. Kennedy knelt at
the 50-yard line, where “no one joined him,” and bowed his
head for a “brief, quiet prayer.” 991 F. 3d, at 1019; App. 173,
236–239. The superintendent informed the District's board
that this prayer “moved closer to what we want,” but never-
theless remained “unconstitutional.” Id., at 96. After the
fnal relevant football game on October 26, Mr. Kennedy
again knelt alone to offer a brief prayer as the players en-
gaged in postgame traditions. 443 F. Supp. 3d 1223, 1231
(WD Wash. 2020); App. to Pet. for Cert. 182. While he was
praying, other adults gathered around him on the feld. See
443 F. Supp. 3d, at 1231; App. 97. Later, Mr. Kennedy re-
joined his players for a postgame talk, after they had fnished
singing the school fght song. 443 F. Supp. 3d, at 1231;
App. 103.
C
Shortly after the October 26 game, the District placed
Mr. Kennedy on paid administrative leave and prohibited
him from “participat[ing], in any capacity, in . . . football pro-
gram activities.” Ibid. In a letter explaining the reasons
for this disciplinary action, the superintendent criticized
Mr. Kennedy for engaging in “public and demonstrative reli-
gious conduct while still on duty as an assistant coach” by
Page Proof Pending Publication

520 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
offering a prayer following the games on October 16, 23, and
26.
Id., at 102. The letter did not allege that Mr. Kennedy
performed these prayers with students, and it acknowledged
that his prayers took place while students were engaged in
unrelated postgame activities. Id., at 103. Additionally,
the letter faulted Mr. Kennedy for not being willing to pray
behind closed doors. Id., at 102.
In an October 28 Q&A document provided to the public,
the District admitted that it possessed “no evidence that stu-
dents have been directly coerced to pray with Kennedy.”
Id., at 105. The Q&A also acknowledged that Mr. Kennedy
“ha[d] complied” with the District's instruction to refrain
from his “prior practices of leading players in a pre-game
prayer in the locker room or leading players in a post-game
prayer immediately following games.” Ibid. But the Q&A
asserted that the District could not allow Mr. Kennedy to
“engage in a public religious display.” Id., at 105, 107, 110.
Otherwise, the District would “violat[e] the . . . Estab-
lishment Clause” because “reasonable . . . students and at-
tendees” might perceive the “district [as] endors[ing] . . .
religion.” Id., at 105.
While Mr. Kennedy received “uniformly positive evalua-
tions” every other year of his coaching career, after the 2015
season ended in November, the District gave him a poor per-
formance evaluation. Kennedy v. Bremerton School Dist.,
869 F. 3d 813, 820 (CA9 2017). The evaluation advised
against rehiring Mr. Kennedy on the grounds that he “ `failed
to follow district policy' ” regarding religious expression and
“ `failed to supervise student-athletes after games.' ” Ibid.
Mr. Kennedy did not return for the next season. Ibid.
II
A
After these events, Mr. Kennedy sued in federal court, al-
leging that the District's actions violated the First Amend-
ment's Free Speech and Free Exercise Clauses. App. 145,
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
521
Opinion of the Court
160–164. He also moved for a preliminary injunction requir-
i
ng the District to reinstate him. The District Court denied
that motion, concluding that a “reasonable observer . . .
would have seen him as . . . leading an orchestrated session
of faith.” App. to Pet. for Cert. 303. Indeed, if the District
had not suspended him, the court agreed, it might have vio-
lated the Constitution's Establishment Clause. See id., at
302–303. On appeal, the Ninth Circuit affrmed. Kennedy,
869 F. 3d, at 831.
Following the Ninth Circuit's ruling, Mr. Kennedy sought
certiorari in this Court. The Court denied the petition.
But Justice Alito, joined by three other Members of the
Court, issued a statement stressing that “denial of certiorari
does not signify that the Court necessarily agrees with the
decision . . . below.” Kennedy v. Bremerton School Dist.,
586 U. S. –––, ––– (2019). Justice Alito expressed con-
cerns with the lower courts' decisions, including the possibil-
ity that, under their reasoning, teachers might be “ordered
not to engage in any `demonstrative' conduct of a religious
nature” within view of students, even to the point of being
forbidden from “folding their hands or bowing their heads in
prayer” before lunch. Id., at –––.
B
After the case returned to the District Court, the parties
engaged in discovery and eventually brought cross-motions
for summary judgment. At the end of that process, the Dis-
trict 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 the October 16, 23, and 26
games. 443 F. Supp. 3d, at 1231.
The court found that reason persuasive too. Rejecting
Mr. Kennedy's free speech claim, the court concluded that
because Mr. Kennedy “was hired precisely to occupy” an “in-
fuential role for student athletes,” any speech he uttered
Page Proof Pending Publication

522 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
was offered in his capacity as a government employee and
unprotec
ted by the First Amendment. Id., at 1237. Alter-
natively, even if Mr. Kennedy's speech qualifed as private
speech, the District Court reasoned, the District properly
suppressed it. Had it done otherwise, the District would
have invited “an Establishment Clause violation.” Ibid.
Turning to Mr. Kennedy's free exercise claim, the District
Court held that, even if the District's policies restricting his
religious exercise were not neutral toward religion or gener-
ally applicable, the District had a compelling interest in pro-
hibiting his postgame prayers, because, once more, had it
“allow[ed]” them it “would have violated the Establishment
Clause.” Id., at 1240.
C
The Ninth Circuit affrmed. It agreed with the District
Court that Mr. Kennedy's speech qualifed as government
rather than private speech because “his expression on the
feld—a location that he only had access to because of his
employment—during a time when he was generally tasked
with communicating with students, was speech as a govern-
ment employee.” 991 F. 3d, at 1015. Like the District
Court, the Ninth Circuit further reasoned that, “even if we
were to assume . . . that Kennedy spoke as a private citizen,”
the District had an “adequate justifcation” for its actions.
Id., at 1016. According to the court, “Kennedy's on-feld re-
ligious activity,” coupled with what the court called “his pu-
gilistic efforts to generate publicity in order to gain ap-
proval of those on-feld religious activities,” were enough to
lead an “objective observer” to conclude that the District
“endorsed Kennedy's religious activity by not stopping
the practice.” Id., at 1017–1018. And that, the court held,
would amount to a violation of the Establishment Clause.
Ibid.
The Court of Appeals rejected Mr. Kennedy's free exercise
claim for similar reasons. The District “concede[d]” that its
policy that led to Mr. Kennedy's suspension was not “neutral
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
523
Opinion of the Court
and generally applicable” and instead “restrict[ed] Kennedy's
rel
igious conduct because the conduct [was] religious.” Id.,
at 1020. Still, the court ruled, the District “had a compel-
ling state interest to avoid violating the Establishment
Clause,” and its suspension was narrowly tailored to vindi-
cate that interest. Id., at 1020–1021.
Later, the Ninth Circuit denied a petition to rehear the
case en banc over the dissents of 11 judges. 4 F. 4th 910,
911 (2021). Among other things, the dissenters argued that
the panel erred by holding that a failure to discipline
Mr. Kennedy would have led the District to violate the Es-
tablishment Clause. Several dissenters noted that the pan-
el's analysis rested on Lemon v. Kurtzman, 403 U. S. 602
(1971), and its progeny for the proposition that the Establish-
ment Clause is implicated whenever a hypothetical reason-
able observer could conclude the government endorses reli-
gion. 4 F. 4th, at 945–947 (opinion of R. Nelson, J.). These
dissenters argued that this Court has long since abandoned
that “ahistorical, atextual” approach to discerning “Estab-
lishment Clause violations”; they observed that other courts
around the country have followed suit by renouncing it too;
and they contended that the panel should have likewise “rec-
ognized Lemon's demise and wisely left it dead.” Ibid., and
n. 3. We granted certiorari. 595 U. S. ––– (2022).
III
Now before us, Mr. Kennedy renews his argument that the
District's conduct violated both the Free Exercise and Free
Speech Clauses of the First Amendment. These Clauses
work in tandem. Where the Free Exercise Clause protects
religious exercises, whether communicative or not, the Free
Speech Clause provides overlapping protection for expres-
sive religious activities. See, e. g., Widmar v. Vincent, 454
U. S. 263, 269, n. 6 (1981); Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U. S. 819, 841 (1995). That the First
Amendment doubly protects religious speech is no accident.
Page Proof Pending Publication

524 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
It is a natural outgrowth of the framers' distrust of govern-
ment
attempts to regulate religion and suppress dissent.
See, e. g., A Memorial and Remonstrance Against Religious
Assessments, in Selected Writings of James Madison 21, 25
(R. Ketcham ed. 2006). “[I]n Anglo–American history, . . .
government suppression of speech has so commonly been di-
rected precisely at religious speech that a free-speech clause
w ithout relig i on wou ld be Hamlet w ithout the pr ince. ”
Capitol Square Review and Advisory Bd. v. Pinette, 515
U. S. 753, 760 (1995).
Under this Court's precedents, a plaintiff bears certain
burdens to demonstrate an infringement of his rights under
the Free Exercise and Free Speech Clauses. If the plaintiff
carries these burdens, the focus then shifts to the defendant
to show that its actions were nonetheless justifed and tai-
lored consistent with the demands of our case law. See, e. g.,
Fulton v. Philadelphia, 593 U. S. –––, ––– – –––, ––– (2021);
Reed v. Town of Gilbert, 576 U. S. 155, 171 (2015); Garcetti v.
Ceballos, 547 U. S. 410, 418 (2006); Church of Lukumi Ba-
balu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993); Sherbert
v. Verner, 374 U. S. 398, 403 (1963). We begin by examining
whether Mr. Kennedy has discharged his burdens, frst under
the Free Exercise Clause, then under the Free Speech
Clause.
A
The Free Exercise Clause provides that “Congress shall
make no law . . . prohibiting the free exercise” of religion.
Amdt. 1. This Court has held the Clause applicable to the
States under the terms of the Fourteenth Amendment.
Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). The
Clause protects not only the right to harbor religious beliefs
inwardly and secretly. It does perhaps its most important
work by protecting the ability of those who hold religious
beliefs of all kinds to live out their faiths in daily life through
“the performance of (or abstention from) physical acts.”
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872, 877 (1990).
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
525
Opinion of the Court
Under this Court's precedents, a plaintiff may carry the
burden
of proving a free exercise violation in various 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.” Id., at 879–881.
Should a plaintiff make a showing like that, this Court will
fnd a First Amendment violation unless the government can
satisfy “strict scrutiny” by demonstrating its course was jus-
tifed by a compelling state interest and was narrowly tai-
lored in pursuit of that interest. Lukumi, 508 U. S., at 546.
1
That Mr. Kennedy has discharged his burdens is effec-
tively undisputed. No one questions that he seeks to en-
gage in a sincerely motivated religious exercise. The exer-
cise in question involves, as Mr. Kennedy has put it, giving
“thanks through prayer” briefy and by himself “on the play-
ing feld” at the conclusion of each game he coaches. App.
168, 171. Mr. Kennedy has indicated repeatedly that he is
willing to “wai[t] until the game is over and the players have
left the feld” to “wal[k] to mid-feld to say [his] short, pri-
vate, personal prayer.” Id., at 69; see also id., at 280, 282.
The contested exercise before us does not involve leading
prayers with the team or before any other captive audience.
Mr. Kennedy's “religious beliefs do not require [him] to lead
any prayer . . . involving students.” Id., at 170. At the
District's request, he voluntarily discontinued the school tra-
dition of locker-room prayers and his postgame religious
talks to students. The District disciplined him only for his
decision to persist in praying quietly without his players
1
A plaintiff may also prove a free exercise violation by showing that
“offcial expressions of hostility” to religion accompany laws or policies
burdening religious exercise; in cases like that we have “set aside” such
policies without further inquiry. Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm'n, 584 U. S. –––, ––– (2018). To resolve today's case,
however, we have no need to consult that test. Likewise, while the test
we do apply today has been the subject of some criticism, see, e. g., Fulton
v. Philadelphia, 593 U. S. –––, ––– (2021), we have no need to engage with
that debate today because no party has asked us to do so.

526 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
after three games in October 2015. See Parts I–B and I–
C
, supra.
Nor does anyone question that, in forbidding Mr. Kenne-
dy's brief prayer, the District failed to act pursuant to a neu-
tral and generally applicable rule. A government policy will
not qualify as neutral if it is “specifcally directed at . . .
religious practice.” Smith, 494 U. S., at 878. A policy can
fail this test if it “discriminate[s] on its face,” or if a religious
exercise is otherwise its “object.” Lukumi, 508 U. S., at
533; see also Smith, 494 U. S., at 878. A government policy
will fail the general applicability requirement if it “pro-
hibits religious conduct while permitting secular conduct
that undermines the government's asserted interests in a
si mi lar way, ” or i f it prov ides “a mechanism for i ndi-
vidualized exemptions.” Fulton, 593 U. S., at –––. Failing
either the neutrality or general applicability test is suffcient
to trigger strict scrutiny. See Lukumi, 508 U. S., at
546.
In this case, 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. As it put it in its
September 17 letter, the District prohibited “any overt ac-
tions on Mr. Kennedy's part, appearing to a reasonable ob-
server to endorse even voluntary, student-initiated prayer.”
App. 81. The District further explained that it could not
allow “an employee, while still on duty, to engage in reli-
gious conduct.” Id., at 106 (emphasis added). Prohibiting
a religious practice was thus the District's unquestioned “ob-
ject.” The District candidly acknowledged as much below,
conceding that its policies were “not neutral” toward reli-
gion. 991 F. 3d, at 1020.
The District's challenged policies also fail the general ap-
plicability test. The District's performance evaluation after
the 2015 football season advised against rehiring Mr. Ken-
nedy on the ground that he “failed to supervise student-
athletes after games.” App. 114. But, in fact, this was a
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
527
Opinion of the Court
bespoke requirement specifcally addressed to Mr. Kennedy's
rel
igious exercise. The District permitted other members
of the coaching staff to forgo supervising students briefy
after the game to do things like visit with friends or take
personal phone calls. Id., at 205; see also Part I–B, supra.
Thus, any sort of postgame supervisory requirement was not
applied in an evenhanded, across-the-board way. Again rec-
ognizing as much, the District conceded before the Ninth
Circuit that its challenged directives were not “generally ap-
plicable.” 991 F. 3d, at 1020.
B
When it comes to Mr. Kennedy's free speech claim, our
precedents remind us that the First Amendment's protec-
tions extend to “teachers and students,” neither of whom
“shed their constitutional rights to freedom of speech or ex-
pression at the schoolhouse gate.” Tinker v. Des Moines
Independent Community School Dist., 393 U. S. 503, 506
(1969); see also Lane v. Franks, 573 U. S. 228, 231 (2014). Of
course, none of this means the speech rights of public school
employees are so boundless that they may deliver any mes-
sage to anyone anytime they wish. In addition to being pri-
vate citizens, teachers and coaches are also government em-
ployees paid in part to speak on the government's behalf and
convey its intended messages.
To account for the complexity associated with the inter-
play between free speech rights and government employ-
ment, this Court's decisions in Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty., 391 U. S. 563
(1968), Garcetti, 547 U. S. 410, and related cases suggest pro-
ceeding in two steps. The frst step involves a threshold
inquiry into the nature of the speech at issue. If a public
employee speaks “pursuant to [his or her] offcial duties,”
this Court has said the Free Speech Clause generally will
not shield the individual from an employer's control and dis-
cipline because that kind of speech is—for constitutional pur-
poses at least—the government's own speech. Id., at 421.
Page Proof Pending Publication

Page Proof Pending Publication
528 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
At the same time and at the other end of the spectrum,
when
an employee “speaks as a citizen addressing a matter
of public concern,” our cases indicate that the First Amend-
ment may be implicated and courts should proceed to a sec-
ond step. Id., at 423. At this second step, our cases sug-
gest that courts should attempt to engage in “a delicate
balancing of the competing interests surrounding the speech
and its consequences.” Ibid. Among other things, courts
at this second step have sometimes considered whether an
employee's speech interests are outweighed by “ `the inter-
est of the State, as an employer, in promoting the eff-
ciency of the public services it performs through its em-
ployees. ' ” Id., at 417 (quoting Picker ing, 391 U. S., at
568).
Both sides ask us to employ at least certain aspects of this
Pickering–Garcetti framework to resolve Mr. Kennedy's free
speech claim. They share additional common ground too.
They agree that Mr. Kennedy's speech implicates a matter
of public concern. See App. to Pet. for Cert. 183; Brief for
Respondent 44. They also appear to accept, at least for ar-
gument's sake, that Mr. Kennedy's speech does not raise
questions of academic freedom that may or may not involve
“additional” First Amendment “interests” beyond those cap-
tured by this framework. Garcetti, 547 U. S., at 425; see
also Keyishian v. Board of Regents of Univ. of State of N. Y.,
385 U. S. 589, 603 (1967); Brief for Petitioner 26, n. 2. At
the frst step of the Pickering–Garcetti inquiry, the parties'
disagreement thus turns out to center on one question alone:
Did Mr. Kennedy offer his prayers in his capacity as a pri-
vate citizen, or did they amount to government speech at-
tributable to the District?
Our cases offer some helpful guidance for resolving this
question. In Garcetti, the Court concluded that a prosecu-
tor's internal memorandum to a supervisor was made “pur-
suant to [his] offcial duties,” and thus ineligible for First

Cite
as: 597 U. S. 507 (2022)
529
Opinion of the Court
Amendment protection. 547 U. S., at 421. In reaching this
conclusi
on, the Court relied on the fact that the prosecutor's
speech “fulfll[ed] a responsibility to advise his supervisor
about how best to proceed with a pending case.” Ibid. In
other words, the prosecutor's memorandum was government
speech because it was speech the government “itself ha[d]
commissioned or created” and speech the employee was ex-
pected to deliver in the course of carrying out his job. Id.,
at 422.
By contrast, in Lane a public employer sought to termi-
nate an employee after he testifed at a criminal trial about
matters involving his government employment. 573 U. S.,
at 233. The Court held that the employee's speech was pro-
tected by the First Amendment. Id., at 231. In doing so,
the Court held that the fact the speech touched on matters
related to public employment was not enough to render it
government speech. Id., at 239–240. Instead, the Court
explained, the “critical question . . . is whether the speech at
issue is itself ordinarily within the scope of an employee's
duties.” Id., at 240. It is an inquiry this Court has said
should be undertaken “practical[ly],” rather than with a
blinkered focus on the terms of some formal and capacious
written job description. Garcetti, 547 U. S., at 424. To pro-
ceed otherwise would be to allow public employers to use
“excessively broad job descriptions” to subvert the Constitu-
tion's protections. Ibid.
Applying these lessons here, it seems clear to us that
Mr. Kennedy has demonstrated that his speech was private
speech, not government speech. When Mr. Kennedy ut-
tered 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, 573 U. S., at 240. He did not
speak pursuant to government policy. He was not seeking
to convey a government-created message. He was not in-
structing players, discussing strategy, encouraging better
Page Proof Pending Publication

530 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
on-feld performance, or engaged in any other speech the
D
istrict paid him to produce as a coach. See Part I–B,
supra. 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
confrm the point. During the postgame period when these
prayers occurred, coaches were free to attend briefy to per-
sonal matters—everything from checking sports scores on
their phones to greeting friends and family in the stands.
App. 205; see Part I–B, supra. We fnd it unlikely that
Mr. Kennedy was fulflling a responsibility imposed by his
employment by praying during a period in which the District
has acknowledged that its coaching staff was free to engage
in all manner of private speech. That Mr. Kennedy offered
his prayers when students were engaged in other activities
like singing the school fght song further suggests that those
prayers were not delivered as an address to the team, but
instead in his capacity as a private citizen. Nor is it disposi-
tive that Mr. Kennedy's prayers took place “within the offce”
environment—here, on the feld of play. Garcetti, 547 U. S.,
at 421. Instead, what matters is whether Mr. Kennedy of-
fered his prayers while acting within the scope of his duties
as a coach. And taken together, both the substance of
Mr. Kennedy's speech and the circumstances surrounding it
point to the conclusion that he did not.
In reaching its contrary conclusion, the Ninth Circuit
stressed that, as a coach, Mr. Kennedy served as a role model
“clothed with the mantle of one who imparts knowledge and
wisdom.” 991 F. 3d, at 1015. The court emphasized that
Mr. Kennedy remained on duty after games. Id., at 1016.
Before us, the District presses the same arguments. See
Brief for Respondent 24. And no doubt they have a point.
Teachers and coaches often serve as vital role models. But
this argument commits the error of positing an “excessively
broad job descriptio[n]” by treating everything teachers and
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
531
Opinion of the Court
coaches say in the workplace as government speech subject
to
government control. Garcetti, 547 U. S., at 424. On this
understanding, a school could fre a Muslim teacher for wear-
ing a headscarf in the classroom or prohibit a Christian aide
from praying quietly over her lunch in the cafeteria. Like-
wise, this argument ignores the District Court's conclusion
(and the District's concession) that Mr. Kennedy's actual job
description left time for a private moment after the game to
call home, check a text, socialize, or engage in any manner
of secular activities. Others working for the District were
free to engage briefy in personal speech and activity. App.
205; see Part I–B, supra. That Mr. Kennedy chose to use
the same time to pray does not transform his speech into
government speech. To hold differently would be to treat
religious expression as second-class speech and eviscerate
th is Cour t's repeated promise that teachers do not
“shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker, 393 U. S., at
506.
Of course, acknowledging that Mr. Kennedy's prayers rep-
resented his own private speech does not end the matter.
So far, we have recognized only that Mr. Kennedy has car-
ried 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 con-
cern. See Lane, 573 U. S., at 236, 242.
2
IV
Whether one views the case through the lens of the Free
Exercise or Free Speech Clause, at this point the burden
2
Because our analysis and the parties' concessions lead to the conclusion
that Mr. Kennedy's prayer constituted private speech on a matter of public
concern, we do not decide whether the Free Exercise Clause may
sometimes demand a different analysis at the frst step of the Pickering–
Garcetti framework.
Page Proof Pending Publication

Page Proof Pending Publication
532 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
shifts to the District. Under the Free Exercise Clause, a
gover
nment entity normally must satisfy at least “strict
scrutiny,” showing that its restrictions on the plaintiff 's pro-
tected rights serve a compelling interest and are narrowly
tailored to that end. See Lukumi, 508 U. S., at 533; n. 1,
supra. A similar standard generally obtains under the Free
Speech Clause. See Reed, 576 U. S., at 171. The District,
however, asks us to apply to Mr. Kennedy's claims the more
lenient second-step Pickering–Garcetti test, or alternatively
intermediate scrutiny. See Brief for Respondent 44– 48.
Ultimately, however, it does not matter which standard we
apply. The District cannot sustain its burden under any of
them.
3
A
As we have seen, the District argues that its suspension
of Mr. Kennedy was essential to avoid a violation of the
Establishment Clause. Id., at 35 – 42. On its account,
Mr. Kennedy's prayers might have been protected by the
Free Exercise and Free Speech Clauses. But his rights
were in “direct tension” with the competing demands of the
Establishment Clause. App. 43. To resolve that clash, the
District reasoned, Mr. Kennedy's rights had to “yield.”
Ibid. The Ninth Circuit pursued this same line of thinking,
insisting that the District's interest in avoiding an Establish-
ment Clause violation “ `trump[ed]' ” Mr. Kennedy's rights to
religious exercise and free speech. 991 F. 3d, at 1017; see
also id., at 1020–1021.
But how could that be? It is true that this Court and
others often refer to the “Establishment Clause,” the “Free
3
It seems, too, that it is only here where our disagreement with the
dissent begins in earnest. We do not understand our colleagues to con-
test that Mr. Kennedy has met his burdens under either the Free Exercise
or Free Speech Clause, but only to suggest the District has carried its
own burden “to establish that its policy prohibiting Kennedy's public pray-
ers was the least restrictive means of furthering a compelling state inter-
est.” Post, at 566 (opinion of Sotomayor, J.).

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
533
Opinion of the Court
Exercise Clause,” and the “Free Speech Clause” as separate
units.
But the three Clauses appear in the same sentence
of the same Amendment: “Congress shall make no law re-
specting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech.”
Amdt. 1. A natural reading of that sentence would seem
to suggest the Clauses have “complementary” purposes, not
warring ones where one Clause is always sure to prevail over
the others. See Everson v. Board of Ed. of Ewing, 330 U. S.
1, 13, 15 (1947).
The District arrived at a different understanding this way.
It began with the premise that the Establishment Clause is
offended whenever a “reasonable observer” could conclude
that the government has “endorse[d]” religion. App. 81.
The District then took the view that a “reasonable observer”
could think it “endorsed Kennedy's religious activity by not
stopping the practice.” 991 F. 3d, at 1018; see also App. 80–
81; Parts I and II, supra. On the District's account, it did
not matter whether the Free Exercise Clause protected
Mr. Kennedy's prayer. It did not matter if his expression
was private speech protected by the Free Speech Clause.
It did not matter that the District never actually endorsed
Mr. Kennedy's prayer, no one complained that it had, and a
strong public reaction only followed after the District sought
to ban Mr. Kennedy's prayer. Because a reasonable ob-
server could (mistakenly) infer that by allowing the prayer
the District endorsed Mr. Kennedy's message, the District
felt it had to act, even if that meant suppressing otherwise
protected First Amendment activities. In this way, the Dis-
trict effectively created its own “vise between the Establish-
ment Clause on one side and the Free Speech and Free Exer-
cise Clauses on the other,” placed itself in the middle, and
then chose its preferred way out of its self-imposed trap.
See Pinette, 515 U. S., at 768 (plurality opinion); Shurtleff v.
Boston, 596 U. S. 243, 279–280 (2022) (Gorsuch, J., concur-
ring in judgment).

Page Proof Pending Publication
534 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
To defend its approach, the District relied on Lemon and
its
progeny. See App. 43–45. In upholding the District's
actions, the Ninth Circuit followed the same course. See
Part II–C, supra. And, to be sure, in Lemon this Court
attempted a “grand unifed theory” for assessing Establish-
ment Clause claims. American Legion v. American Hu-
manist Assn., 588 U. S. –––, ––– (2019) (plurality opinion).
That approach called for an examination of a law's purposes,
effec ts, and potentia l for ent ang lement w ith rel ig i on.
Lemon, 403 U. S., at 612–613. In time, the approach also
came to involve estimations about whether a “reasonable ob-
server” would consider the government's challenged action
an “endorsement” of religion. See, e. g., County of Alle-
gheny v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U. S. 573, 593 (1989); id., at 630 (O'Con-
nor, J., concurring in part and concurring in judgment);
Shurtleff, 596 U. S., at 278 (opinion of Gorsuch, J.).
What the District and the Ninth Circuit overlooked, how-
ever, is that the “shortcomings” associated with this “ambi-
tiou[s],” abstract, and ahistorical approach to the Establish-
ment Clause became so “apparent” that this Court long
ago abandoned Lemon and its endorsement test offshoot.
American Legion, 588 U. S., at ––– – ––– (plurality opinion);
see also Town of Greece v. Galloway, 572 U. S. 565, 575–577
(2014). The Court has explained that these tests “invited
chaos” in lower courts, led to “differing results” in materially
identical cases, and created a “minefeld” for legislators. Pi-
nette, 515 U. S., at 768–769, n. 3 (plurality opinion) (emphasis
deleted). This Court has since made plain, too, that the Es-
tablishment Clause does not include anything like a “modi-
fed heckler's veto, in which . . . religious activity can be
proscribed” based on “ `perceptions' ” or “ `discomfort. ' ”
Good News Club v. Milford Central School, 533 U. S. 98, 119
(2001) (emphasis deleted). An Establishment Clause viola-
tion does not automatically follow whenever a public school
or other government entity “fail[s] to censor” private reli-

Cite
as: 597 U. S. 507 (2022)
535
Opinion of the Court
g i ous speech. Bo ard o f Ed. o f West si de Co mmun i ty
Scho
ols (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plu-
rality opinion). Nor does the Clause “compel the govern-
ment to purge from the public sphere” anything an objective
observer could reasonably infer endorses or “partakes of the
religious.” Van Orden v. Perry, 545 U. S. 677, 699 (2005)
(Breyer, J., concurring in judgment). In fact, just this
Term the Court unanimously rejected a city's attempt to cen-
sor religious speech based on Lemon and the endorsement
test. See Shurtleff, 596 U. S., at 247–248; id., at 261–262
(Alito, J., concurring in judgment); id., at 276, 279–280 (opin-
ion of Gorsuch, J.).
4
In place of Lemon and the endorsement test, this Court
has instructed that the Establishment Clause must be inter-
preted by “ `reference to historical practices and understand-
ings.' ” Town of Greece, 572 U. S., at 576; see also American
Legion, 588 U. S., at ––– (plurality opinion). “ `[T]he line' ”
4
Nor was that decision an outlier. In the last two decades, this Court
has often criticized or ignored Lemon and its endorsement test variation.
See, e. g., Espinoza v. Montana Dept. of Revenue, 591 U. S. ––– (2020);
American Legion v. American Humanist Assn., 588 U. S. ––– (2019);
Trump v. Hawaii, 585 U. S. ––– (2018); Trinity Lutheran Church of Co-
lumbia, Inc. v. Comer, 582 U. S. 449 (2017); Town of Greece v. Galloway,
572 U. S. 565 (2014); Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U. S. 171 (2012); Arizona Christian School Tuition
Organization v. Winn, 563 U. S. 125 (2011); Hein v. Freedom from Reli-
gion Foundation, Inc., 551 U. S. 587 (2007); id., at 618 (Scalia, J., concur-
ring in judgment); Van Orden v. Perry, 545 U. S. 677 (2005); id., at 698
(Breyer, J., concurring in judgment). A vast number of Justices have
criticized those tests over an even longer period. See Shurtleff v. Boston,
596 U. S. 243, 282–283, and nn. 9–10 (2022) (Gorsuch, J., concurring in
judgment) (collecting opinions authored or joined by Roberts and Rehn-
quist, C. J., and Thomas, Breyer, Alito, Kavanaugh, Stevens, O'Con-
nor, Scalia, and Kennedy, JJ.). The point has not been lost on our lower
court colleagues. See, e. g., 4 F. 4th 910, 939–941 (2021) (O'Scannlain, J.,
respecting denial of rehearing en banc); id., at 945 (R. Nelson, J., dissenting
from denial of rehearing en banc); id., at 947, n. 3 (collecting lower court
cases from “around the country” that “have recognized Lemon's demise”).
Page Proof Pending Publication

536 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
that courts and governments “ `must draw between the per-
missible
and the impermissible' ” has to “ `accor[d] with his-
tory and faithfully refec[t] the understanding of the Found-
ing Fathers.' ” Town of Greece, 572 U. S., at 577 (quoting
School Dist. of Abington Township v. Schempp, 374 U. S.
203, 294 (1963) (Brennan, J., concurring)). An analysis fo-
cused on or ig i na l meani ng and h istory, th is Cour t has
stressed, has long represented the rule rather than some
“ `exception' ” within the “Court's Establishment Clause ju-
risprudence.” 572 U. S., at 575; see American Legion, 588
U. S., at ––– (plurality opinion); Torcaso v. Watkins, 367 U. S.
488, 490 (1961) (analyzing certain historical elements of reli-
gious establishments); McGowan v. Maryland, 366 U. S. 420,
437–440 (1961) (analyzing Sunday closing laws by looking to
their “place . . . in the First Amendment's history”); Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 680 (1970)
(analyzing the “history and uninterrupted practice” of church
tax exemptions). The District and the Ninth Circuit erred
by failing to heed this guidance.
B
Perhaps sensing that the primary theory it pursued below
rests on a mistaken understanding of the Establishment
Clause, the District offers a backup argument in this Court.
It still contends that its Establishment Clause concerns
trump Mr. Kennedy's free exercise and free speech rights.
But the District now seeks to supply different reasoning for
that result. Now, it says, it was justifed in suppressing
Mr. Kennedy's religious activity because otherwise it would
have been guilty of coercing students to pray. See Brief for
Respondent 34–37. And, the District says, coercing wor-
ship amounts to an Establishment Clause violation on any-
one's account of the Clause's original meaning.
As it turns out, however, there is a pretty obvious reason
why the Ninth Circuit did not adopt this theory in proceed-
ings below: The evidence cannot sustain it. To be sure, this
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
537
Opinion of the Court
Court has long held that government may not, consistent
w
ith a historically sensitive understanding of the Establish-
ment Clause, “make a religious observance compulsory.”
Zorach v. Clauson, 343 U. S. 306, 314 (1952). Government
“may not coerce anyone to attend church,” ibid., nor may it
force citizens to engage in “a formal religious exercise,” Lee
v. Weisman, 505 U. S. 577, 589 (1992). No doubt, too, coer-
cion along these lines was among the foremost hallmarks of
religious establishments the framers sought to prohibit when
they adopted the First Amendment.
5
Members of this
Court have sometimes disagreed on what exactly qualifes as
impermissible coercion in light of the original meaning of the
Establishment Clause. Compare id., at 593, with id., at 640–
641 (Scalia, J., dissenting). But in this case Mr. Kennedy's
private religious exercise did not come close to crossing any
line one might imagine separating protected private expres-
sion from impermissible government coercion.
Begin with the District's own contemporaneous descrip-
tion of the facts. In its correspondence with Mr. Kennedy,
the District never raised coercion concerns. To the con-
trary, the District conceded in a public 2015 document that
there was “no evidence that students [were] directly coerced
to pray with Kennedy.” App. 105. This is consistent with
Mr. Kennedy's account too. He has repeatedly stated that
he “never coerced, required, or asked any student to pray,”
and that he never “told any student that it was important
that they par ticipate in any relig ious activity. ” Id., at
170.
5
See, e. g., Lee v. Weisman, 505 U. S. 577, 640–642 (1992) (Scalia, J. dis-
senting); Shurtleff, 596 U. S., at 285–286 (opinion of Gorsuch, J.) (discuss-
ing coercion and certain other historical hallmarks of an established reli-
gion); 1 Annals of Cong. 730–731 (1789) (Madison explaining that the First
Amendment aimed to prevent one or multiple sects from “establish[ing] a
religion to which they would compel others to conform”); M. McConnell,
Establishment and Disestablishment at the Founding, Part I: Establish-
ment of Religion, 44 Wm. & Mary L. Rev. 2105, 2144–2146 (2003).
Page Proof Pending Publication

Page Proof Pending Publication
538 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
Consider, too, the actual requests Mr. Kennedy made.
The
District did not discipline Mr. Kennedy for engaging in
prayer while presenting locker-room speeches to students.
That tradition predated Mr. Kennedy at the school. Ibid.
And he willingly ended it, as the District has acknowledged.
Id., at 77, 170. He also willingly ended his practice of post-
game religious talks with his team. Id., at 70, 77, 170–172.
The only prayer Mr. Kennedy sought to continue was the
kind he had “started out doing ” at the beginning of his ten-
ure—the prayer he gave alone. Id., at 293–294. He made
clear that he could pray “while the kids were doing the fght
song ” and “take a knee by [him]self and give thanks and
continue on.” Id., at 294. Mr. Kennedy even considered it
“acceptable” to say his “prayer while the players were walk-
ing to the locker room” or “bus,” and then catch up with his
team. Id., at 280, 282; see also id., at 59 (proposing the team
leave the feld for the prayer). In short, Mr. Kennedy did
not seek to direct any prayers to students or require anyone
else to participate. His plan was to wait to pray until ath-
letes were occupied, and he “told everybody” that's what he
wished “to do.” Id., at 292. It was for three prayers of this
sort alone in October 2015 that the District suspended him.
See Parts I–B and I–C, supra.
Naturally, Mr. Kennedy's proposal to pray quietly by him-
self on the feld would have meant some people would have
seen his religious exercise. Those close at hand might have
heard him too. But learning how to tolerate speech or
prayer of all kinds is “part of learning how to live in a plural-
istic society,” a trait of character essential to “a tolerant citi-
zenry.” Lee, 505 U. S., at 590. This Court has long recog-
nized as well that “secondary school students are mature
enough . . . to understand that a school does not endorse,”
let alone coerce them to participate in, “speech that it merely
permits on a nondiscriminatory basis.” Mergens, 496 U. S.,
at 250 (plurality opinion). Of course, some will take offense

Cite
as: 597 U. S. 507 (2022)
539
Opinion of the Court
to certain forms of speech or prayer they are sure to encoun-
ter
in a society where those activities enjoy such robust con-
stitutional protection. But “[o]ffense . . . does not equate
to coercion.” Town of Greece, 572 U. S., at 589 (plurality
opinion).
The D istr ic t responds that, as a coach, Mr. Kennedy
“wielded enormous authority and infuence over the stu-
dents,” and students might have felt compelled to pray
alongside him. Brief for Respondent 37. To support this
argument, the District submits that, after Mr. Kennedy's
suspension, a few parents told District employees that their
sons had “participated in the team prayers only because they
did not wish to separate themselves from the team.” App.
356.
This reply fails too. Not only does the District rely on
hearsay to advance it. For all we can tell, the concerns the
District says it heard from parents were occasioned by the
locker-room prayers that predated Mr. Kennedy's tenure or
his postgame religious talks, all of which he discontinued at
the District's request. There is no indication in the record
that anyone expressed any coercion concerns to the District
about the quiet, postgame prayers that Mr. Kennedy asked
to continue and that led to his suspension. Nor is there any
record evidence that students felt pressured to participate in
these prayers. To the contrary, and as we have seen, not a
single Bremerton student joined Mr. Kennedy's quiet pray-
ers following the three October 2015 games for which he
was disciplined. On October 16, those students who joined
Mr. Kennedy were “ `from the opposing team,' ” 991 F. 3d, at
1012–1013, and thus could not have “reasonably fear[ed]”
that he would decrease their “playing time” or destroy their
“opportunities” if they did not “participate,” Brief for Re-
spondent 43. As for the other two relevant games, “no
one joined” Mr. Kennedy on October 23. 991 F. 3d, at
1019. And only a few members of the public participated
Page Proof Pending Publication

540 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
on Oc tober 26. App. 97, 314 – 315; see a lso Par t I–B,
sup
ra.
6
The absence of evidence of coercion in this record leaves
the District to its fnal redoubt. Here, 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. In essence, the District
asks us to adopt the view that the only acceptable govern-
ment role models for students are those who eschew any visi-
ble religious expression. See also post, at 560–561 (Soto-
mayor, J., dissenting). If the argument sounds familiar, it
should. Really, it is just another way of repackaging the
District's earlier submission that government may script ev-
erything a teacher or coach says in the workplace. See Part
III–B, supra. The only added twist here is the District's
suggestion not only that it may prohibit teachers from en-
gaging in any demonstrative religious activity, but that it
must do so in order to conform to the Constitution.
Such a rule would be a sure sign that our Establishment
Clause jurisprudence had gone off the rails. In the name
of protecting religious liberty, the District would have us
suppress it. Rather than respect the First Amendment's
double protection for religious expression, it would have us
preference secular activity. Not only could schools fre
teachers for praying quietly over their lunch, for wearing a
yarmulke to school, or for offering a midday prayer during a
break before practice. Under the District's rule, a school
would be required to do so. It is a rule that would defy this
6
The dissent expresses concern that looking to “histor[y] an[d] tradi-
tion” to guide Establishment Clause inquiries will not afford “school ad-
ministrators” suffcient guidance. Post, at 573–574. But that concern
supplies no excuse to adorn the Constitution with rules not supported by
its terms and the traditions undergirding them. Nor, in any event, is
there any question that the District understands that coercion can be a
hallmark of an Establishment Clause violation. See App. 105. The Dis-
trict's problem isn't a failure to identify coercion as a crucial legal consider-
ation; it is a lack of evidence that coercion actually occurred.
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
541
Opinion of the Court
Court's traditional understanding that permitting private
speech
is not the same thing as coercing others to participate
in it. See Town of Greece, 572 U. S., at 589 (plurality opin-
ion). It is a rule, too, that would undermine a long constitu-
tional tradition under which learning how to tolerate diverse
expressive activities has always been “part of learning how
to live in a pluralistic society.” Lee, 505 U. S., at 590. We
are aware of no historically sound understanding of the Es-
tablishment Clause that begins to “mak[e] it necessary for
government to be hostile to religion” in this way. Zorach,
343 U. S., at 314.
Our judgments on all these scores fnd support in this
Court's prior cases too. In Zorach, for example, challengers
argued that a public school program permitting students to
spend time in private religious instruction off campus was
impermissibly coercive. Id., at 308, 311–312. The Court
rejected that challenge because students were not required
to attend religious instruction and there was no evidence
that any employee had “us[ed] their offce to persuade or
force students” to participate in religious activity. Id., at
311, and n. 6. What was clear there is even more obvious
here—where there is no evidence anyone sought to persuade
or force students to participate, and there is no formal school
program accommodating the religious activity at issue.
Meanwhile, this case looks very different from those in
which this Court has found prayer involving public school
students to be problematically coercive. In Lee, this Court
held that school offcials violated the Establishment Clause
by “including [a] clerical membe[r]” who publicly recited
prayers “as part of [an] offcial school graduation ceremony”
because the school had “in every practical sense compelled
attendance and participation in” a “religious exercise.” 505
U. S., at 580, 598. In Santa Fe Independent School Dist. v.
Doe, the Court held that a school district violated the Estab-
lishment Clause by broadcasting a prayer “over the public
address system” before each football game. 530 U. S. 290,
Page Proof Pending Publication

Page Proof Pending Publication
542 KENNEDY
v. BREMERTON SCHOOL DIST.
Opinion of the Court
294 (2000). The Court observed that, while students gener-
a
lly were not required to attend games, attendance was
required for “cheerleaders, members of the band, and, of
course, the team members themselves.” Id., at 311. None
of that is true here. The prayers for which Mr. Kennedy
was disciplined were not publicly broadcast or recited to a
captive audience. Students were not required or expected
to participate. And, in fact, none of Mr. Kennedy's students
did participate in any of the three October 2015 prayers that
resulted in Mr. Kennedy's discipline. See App. 90, 97, 173,
236–239; Parts I–B and I–C, supra.
7
C
In the end, the District's case hinges on the need to gener-
ate confict between an individual's rights under the Free
Exercise and Free Speech Clauses and its own Establish-
ment Clause duties—and then develop some explanation why
one of these Clauses i n the First Amendment shou ld
“ `trum[p]' ” the other two. 991 F. 3d, at 1017; App. 43. But
the project falters badly. Not only does the District fail to
offer a sound reason to prefer one constitutional guarantee
7
Even if the personal prayers Mr. Kennedy sought to offer after games
are not themselves coercive, the dissent suggests that they bear an indeli-
ble taint of coercion by association with the school's past prayer prac-
tices—some of which predated Mr. Kennedy, and all of which the District
concedes he ended on request. But none of those abandoned practices
formed the basis for Mr. Kennedy's suspension, and he has not sought to
claim First Amendment protection for them. See Town of Greece, 572
U. S., at 585 (other past practices do not permanently “despoil a practice”
later challenged under the Establishment Clause). Nor, contrary to the
dissent, does the possibility that students might choose, unprompted, to
participate in Mr. Kennedy's prayers necessarily prove them coercive. See
post, at 562–564, 567–577. For one thing, the District has conceded that no
coach may “discourag[e]” voluntary student prayer under its policies. Tr.
of Oral Arg. 91. For another, Mr. Kennedy has repeatedly explained that
he is willing to conduct his prayer without students—as he did after each
of the games that formed the basis of his suspension—and after students
head to the locker room or bus. See App. 280, 282, 292–294.

Cite
as: 597 U. S. 507 (2022)
543
Opinion of the Court
over another. It cannot even show that they are at odds.
In
truth, there is no confict between the constitutional com-
mands before us. There is only the “mere shadow” of a con-
fict, a false choice premised on a misconstruction of the Es-
tablishment Clause. Schempp, 374 U. S., at 308 (Goldberg,
J., concurring). And in no world may a government entity's
concerns about phantom constitutional violations justify ac-
tual violations of an individual's First Amendment rights.
See, e. g., Rosenberger, 515 U. S., at 845–846; Good News
Club, 533 U. S., at 112–119; Lamb's Chapel v. Center Mo-
riches Union Free School Dist., 508 U. S. 384, 394–395
(1993); Widmar, 454 U. S., at 270–275.
8
V
Respect for religious expressions is indispensable to life in
a free and diverse Republic—whether those expressions take
place in a sanctuary or on a feld, and whether they manifest
through the spoken word or a bowed head. Here, a govern-
ment entity sought to punish an individual for engaging in a
brief, quiet, personal religious observance doubly protected
by the Free Exercise and Free Speech Clauses of the First
Amendment. And the only meaningful justifcation the gov-
ernment offered for its reprisal rested on a mistaken view
that it had a duty to ferret out and suppress religious obser-
8
Failing under its coercion theory, the District offers still another
backup argument. It contends that it had to suppress Mr. Kennedy's pro-
tected First Amendment activity to ensure order at Bremerton football
games. See also post, at 546, 552–554, 555–556, 578–579 (Sotomayor, J.,
dissenting). But the District never raised concerns along these lines in its
contemporaneous correspondence with Mr. Kennedy. And unsurprisingly,
neither the District Court nor the Ninth Circuit invoked this rationale to
justify the District's actions. Government “justifcation[s]” for interfering
with First Amendment rights “must be genuine, not hypothesized or in-
vented post hoc in response to litigation.” United States v. Virginia, 518
U. S. 515, 533 (1996). Nor under our Constitution does protected speech
or religious exercise readily give way to a “heckler's veto.” Good News
Club v. Mil ford Central School, 533 U. S. 98, 119 (2001); supra, at 534–535.
Page Proof Pending Publication

544 KENNEDY
v. BREMERTON SCHOOL DIST.
Thomas, J., concurring
vances even as it allows comparable secular speech. The
Constituti
on neither mandates nor tolerates that kind of dis-
crimination. Mr. Kennedy is entitled to summary judgment
on his First Amendment claims. The judgment of the Court
of Appeals is
Reversed.
Justice Thomas, concurring.
I join the Court's opinion because it correctly holds that
Bremerton School District violated Joseph Kennedy's First
Amendment rights. I write separately to emphasize that
the Court's opinion does not resolve two issues related to
Kennedy's free-exercise claim.
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 gen-
eral public. See ante, at 531, n. 2. In “striking the appro-
priate balance” between public employees' constitutional
rights and “the realities of the employment context,” we
have often “consider[ed] whether the asserted employee
right implicates the basic concerns of the relevant constitu-
tional provision, or whether the claimed right can more
readily give way to the requirements of the government as
employer.” Engquist v. Oregon Dept. of Agriculture, 553
U. S. 591, 600 (2008). In the free-speech context, for exam-
ple, that inquiry has prompted us to distinguish between dif-
ferent kinds of speech; we have held that “the First Amend-
ment protects public employee speech only when it falls
within the core of First Amendment protection—speech on
matters of public concern.” Ibid. It remains an open ques-
tion, however, if a similar analysis can or should apply to
free-exercise claims in light of the “history” and “tradition”
of the Free Exercise Clause. Borough of Duryea v. Guar-
nieri, 564 U. S. 379, 406 (2011) (Scalia, J., concurring in judg-
ment in part and dissenting in part); see also id., at 400
(Thomas, J., concurring in judgment).
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
545
Sotomayor, J., dissenting
Second, the Court also does not decide what burden a gov-
er
nment employer must shoulder to justify restricting an
employee's religious expression because the District had no
constitutional basis for reprimanding Kennedy under any
possibly applicable standard of scrutiny. See ante, at 532.
While we have many public-employee precedents addressing
how the interest-balancing test set out in Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty., 391
U. S. 563 (1968), applies under the Free Speech Clause, the
Court has never before applied Pickering balancing to a
claim brought under the Free Exercise Clause. A govern-
ment employer's burden therefore might differ depending
on which First Amendment guarantee a public employee
invokes.
Justice Alito, concurring.
The expression at issue in this case is unlike that in any
of our prior cases involving the free-speech rights of public
employees. Petitioner's expression occurred while at work
but during a time when a brief lull in his duties apparently
gave him a few free moments to engage in private activities.
When he engaged in this expression, he acted in a purely
private capacity. 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 justi-
fed based on any of the standards discussed. On that un-
derstanding, I join the opinion in full.
Justice Sotomayor, with whom Justice Breyer and
Justice Kagan join, dissenting.
This case is about whether a public school must permit a
school offcial to kneel, bow his head, and say a prayer at the
center of a school event. The Constitution does not author-
ize, let alone require, public schools to embrace this conduct.
Since Engel v. Vitale, 370 U. S. 421 (1962), this Court consist-
ently has recognized that school offcials leading prayer is
Page Proof Pending Publication

Page Proof Pending Publication
546 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
constitutionally impermissible. Offcial-led prayer strikes at
the
core of our constitutional protections for the religious
liberty of students and their parents, as embodied in both
the Establishment Clause and the Free Exercise Clause of
the First Amendment.
The Court now charts a different path, yet again paying
almost exclusive attention to the Free Exercise Clause's pro-
tection for individual religious exercise while giving short
shrift to the Establishment Clause's prohibition on state es-
tablishment of religion. See Carson v. Makin, 596 U. S.
767, 789 (2022) (Breyer, J., dissenting). To the degree the
Court portrays petitioner Joseph Kennedy's prayers as pri-
vate and quiet, it misconstrues the facts. The record re-
veals that Kennedy had a longstanding practice of conduct-
ing demonstrative prayers on the 50-yard line of the football
feld. Kennedy consistently invited others to join his pray-
ers and for years led student athletes in prayer at the same
time and location. The Court ignores this history. The
Court also ignores the severe disruption to school events
caused by Kennedy's conduct, viewing it as irrelevant be-
cause the Bremerton School District (District) stated that it
was suspending Kennedy to avoid it being viewed as endors-
ing religion. Under the Court's analysis, presumably this
would be a different case if the District had cited Kennedy's
repeated disruptions of school programming and violations
of school policy regarding public access to the feld as grounds
for suspending him. As the District did not articulate those
grounds, the Court assesses only the District's Establish-
ment Clause concerns. It errs by assessing them divorced
from the context and history of Kennedy's prayer practice.
Today's decision goes beyond merely misreading the rec-
ord. The Court overrules Lemon v. Kurtzman, 403 U. S.
602 (1971), and calls into question decades of subsequent
precedents that it deems “offshoot[s]” of that decision.
Ante, at 534. In the process, the Court rejects longstanding
concerns surrounding government endorsement of religion

Cite
as: 597 U. S. 507 (2022)
547
Sotomayor, J., dissenting
and replaces the standard for reviewing such questions with
a
new “history and tradition” test. In addition, while the
Court reaffrms that the Establishment Clause prohibits the
government from coercing participation in religious exercise,
it applies a nearly toothless version of the coercion analysis,
failing to acknowledge the unique pressures faced by stu-
dents when participating in school-sponsored activities.
This decision does a disservice to schools and the young citi-
zens they serve, as well as to our Nation's longstanding com-
mitment to the separation of church and state. I respect-
fully dissent.
I
As the majority tells it, Kennedy, a coach for the District's
football program, “lost his job” for “pray[ing] quietly while
his students were otherwise occupied.” Ante, at 512–514.
The record before us, however, tells a different story.
A
The District serves approximately 5,057 students and em-
ploys 332 teachers and 400 nonteaching personnel in Kitsap
County, Washington. The county is home to Bahá'ís, Bud-
dhists, Hindus, Jews, Muslims, Sikhs, Zoroastrians, and
many denominations of Christians, as well as numerous resi-
dents who are religiously unaffliated. See Brief for Reli-
gious and Denominational Organizations et al. as Amici Cu-
riae 4.
The District frst hired Kennedy in 2008, on a renewable
annual contract, to serve as a part-time assistant coach for
the varsity football team and head coach for the junior var-
sity team at Bremerton High School (BHS). Kennedy's job
description required him to “[a]ccompany and direct” all
home and out-of-town games to which he was assigned, over-
seeing preparation and transportation before games, being
“[r]esponsible for player behavior both on and off the feld,”
supervising dressing rooms, and “secur[ing] all facilities at
the close of each practice.” App. 32–34, 36. His duties en-
Page Proof Pending Publication

548 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
compassed “supervising student activities immediately fol-
low
ing the completion of the game” until the students were
released to their parents or otherwise allowed to leave. Id.,
at 133.
The District also set requirements for Kennedy's interac-
tions with players, obliging him, like all coaches, to “exhibit
sportsmanlike conduct at all times,” “utilize positive motiva-
tional strategies to encourage athletic performance,” and
serve as a “mentor and role model for the student athletes.”
Id., at 56. In addition, Kennedy's position made him respon-
sible for interacting with members of the community. In
th is capacity, the Distr ict required Kennedy and other
coaches to “maintain positive media relations,” “always ap-
proach offcials with composure” with the expectation that
they were “constantly being observed by others,” and “com-
municate effectively” with parents. Ibid.
Finally, District coaches had to “[a]dhere to [District] poli-
cies and administrative regulations” more generally. Id., at
30–31. As relevant here, the District's policy on “Religious-
Related Activities and Practices” provided that “[s]chool
staff shall neither encourage nor discourage a student from
engaging in non-disruptive oral or silent prayer or any other
form of devotional activity” and that “[r]eligious services,
programs or assemblies shall not be conducted in school facil-
ities during school hours or in connection with any school
sponsored or school related activity.” Id., at 26–28.
B
In September 2015, a coach from another school's football
team informed BHS' principal that Kennedy had asked him
and his team to join Kennedy in prayer. The other team's
coach told the principal that he thought it was “ `cool' ” that
the District “ `would allow [its] coaches to go ahead and invite
other teams' coaches and players to pray after a game.' ”
Id., at 229.
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
549
Sotomayor, J., dissenting
The District initiated an inquiry into whether its policy on
Rel
igious-Related Activities and Practices had been violated.
It learned that, since his hiring in 2008, Kennedy had been
kneeling on the 50-yard line to pray immediately after shak-
ing hands with the opposing team. Kennedy recounted that
he initially prayed alone and that he never asked any student
to join him. Over time, however, a majority of the team
came to join him, with the numbers varying from game to
game. Kennedy's practice evolved into postgame talks in
which Kennedy would hold aloft student helmets and deliver
speeches with “overtly religious references,” which Kennedy
described as prayers, while the players kneeled around him.
Id., at 40. The District also learned that students had
prayed in the past in the locker room prior to games, before
Kennedy was hired, but that Kennedy subsequently began
leading those prayers too.
Page Proof Pending Publication

550 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
While the District's inquiry was pending, its athletic direc-
tor
attended BHS' September 11, 2015, football game and
told Kennedy that he should not be conducting prayers
with players. After the game, while the athletic director
watched, Kennedy led a prayer out loud, holding up a play-
er's helmet as the players kneeled around him. While rid-
ing the bus home with the team, Kennedy posted on Face-
book that he thought he might have just been fred for
praying.
On September 17, the District's superintendent sent Ken-
nedy a letter informing him that leading prayers with stu-
dents on the feld and in the locker room would likely be
found to violate the Establishment Clause, exposing the Dis-
trict to legal liability. The District acknowledged that Ken-
nedy had “not actively encouraged, or required, participa-
tion” but emphasized that “school staff may not indirectly
encourage students to engage in religious activity” or “en-
dors[e]” religious activity; rather, the District explained,
staff “must remain neutral” “while performing their job du-
ties.” Id., at 41–43. The District instructed Kennedy that
any motivational talks to students must remain secular, “so
as to avoid alienation of any team member.” Id., at 44.
The District reiterated that “all District staff are free to
engage in religious activity, including prayer, so long as it
does not interfere with job responsibilities.” Id., at 45. To
avoid endorsing student religious exercise, the District in-
structed that such activity must be nondemonstrative or con-
ducted separately from students, away from student activi-
ties. Ibid. The District expressed concern that Kennedy
had continued his midfeld prayer practice at two games
after the District's athletic director and the varsity team's
head coach had instructed him to stop. Id., at 40–41.
Kennedy stopped participating in locker room prayers and,
after a game the following day, gave a secular speech. He
returned to pray in the stadium alone after his duties were
over and everyone had left the stadium, to which the District
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
551
Sotomayor, J., dissenting
had no objection. Kennedy then hired an attorney, who, on
Oc
tober 14, sent a letter explaining that Kennedy was “moti-
vated by his sincerely-held religious beliefs to pray following
each football game.” Id., at 63. The letter claimed that the
District had required that Kennedy “fee from students if
they voluntarily choose to come to a place where he is pri-
vately praying during personal time,” referring to the 50-
yard line of the football feld immediately following the con-
clusion of a game. Id., at 70. Kennedy requested that
the District simply issue a “clarif[ication] that the prayer is
[Kennedy's] private speech” and that the District not “inter-
fere” with students joining Kennedy in prayer. Id., at 71.
The letter further announced that Kennedy would resume
his 50-yard-line prayer practice the next day after the Octo-
ber 16 homecoming game.
1
Before the homecoming game, Kennedy made multiple
media appearances to publicize his plans to pray at the 50-
yard line, leading to an article in the Seattle News and a
local television broadcast about the upcoming homecoming
game. In the wake of this media coverage, the District
began receiving a large number of emails, letters, and calls,
many of them threatening.
The District responded to Kennedy's letter before the
game on October 16. It emphasized that Kennedy's letter
evinced “materia[l] misunderstand[ings]” of many of the
facts at issue. Id., at 76. For instance, Kennedy's letter as-
serted that he had not invited anyone to pray with him; the
District noted that that might be true of Kennedy's Septem-
1
The Court recounts that Kennedy was “willing to say his `prayer while
the players were walking to the locker room' or `bus,' and then catch up
with his team.” Ante, at 517 (quoting App. 280–282); see also ante, at
517–518. Kennedy made the quoted remarks, however, only during his
deposition in the underlying litigation, stating in response to a question
that such timing would have been “physically possible” and “[p]ossibly”
have been acceptable to him, but that he had never “discuss[ed] with the
District whether that was a possibility for [him] to do” and had “no idea”
whether his lawyers raised it with the District. App. 280, 282.
Page Proof Pending Publication

552 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
ber 17 prayer specifcally, but that Kennedy had acknowl-
edged
inviting others to join him on many previous occa-
sions. The District's September 17 letter had explained that
Kennedy traditionally held up helmets from the BHS and
opposing teams while players from each team kneeled around
him. While Kennedy's letter asserted that his prayers “oc-
curr[ed] `on his own time,' after his duties as a District em-
ployee had ceased,” the District pointed out that Kennedy
“remain[ed] on duty” when his prayers occurred “immedi-
ately following completion of the football game, when stu-
dents are still on the football feld, in uniform, under the
stadium lights, with the audience still in attendance, and
while Mr. Kennedy is still in his District-issued and District-
logoed attire.” Id., at 78 (emphasis deleted). The District
further noted that “[d]uring the time following completion of
the game, until players are released to their parents or other-
wise allowed to leave the event, Mr. Kennedy, like all
coaches, is clearly on duty and paid to continue supervision
of students.” Id., at 79.
The District stated that it had no objection to Kennedy
returning to the stadium when he was off duty to pray at
the 50-yard line, nor with Kennedy praying while on duty if
it did not interfere with his job duties or suggest the Dis-
trict's endorsement of religion. The District explained that
its establishment concerns were motivated by the specifc
facts at issue, because engaging in prayer on the 50-yard line
immediately after the game fnished would appear to be an
extension of Kennedy's “prior, long-standing and well-known
history of leading students in prayer” on the 50-yard line
after games. Id., at 81. The District therefore reaffrmed
its prior directives to Kennedy.
On October 16, after playing of the game had concluded,
Kennedy shook hands with the opposing team, and as adver-
tised, knelt to pray while most BHS players were singing
the school's fght song. He quickly was joined by coaches
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
553
Sotomayor, J., dissenting
and players from the opposing team. Television news cam-
eras
surrounded the group.
2
Members of the public rushed
the feld to join Kennedy, jumping fences to access the feld
and knocking over student band members. After the game,
the District received calls from Satanists who “intended to
conduct ceremonies on the feld after football games if others
were allowed to.” Id., at 181. To secure the feld and en-
able subsequent games to continue safely, the District was
forced to make security arrangements with the local police
and to post signs near the feld and place robocalls to parents
reiterating that the feld was not open to the public.
Page Proof Pending Publication
The District sent Kennedy another letter on October 23,
explaining that his conduct at the October 16 game was in-
2
The Court describes the events of the October 16 game as having
“spurred media coverage of Mr. Kennedy's” case. Ante, at 518. In fact,
the District Court found that Kennedy himself generated the media cover-
age by publicizing his dispute with the District in his initial Facebook
posting and in his media appearances before the October 16 game. 443
F. Supp. 3d 1223, 1230 (WD Wash. 2020).

554 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
consistent with the District's requirements for two reasons.
First,
it “drew [him] away from [his] work”; Kennedy had,
“until recently, . . . regularly c[o]me to the locker room with
the team and other coaches following the game” and had
“specifc responsibility for the supervision of players in the
locker room following games.” Id., at 92–93. Second, his
conduct raised Establishment Clause concerns, because “any
reasonable observer saw a District employee, on the feld
only by virtue of his employment with the District, still on
duty, under the bright lights of the stadium, engaged in what
was clearly, given [his] prior public conduct, overtly religious
conduct.” Id., at 93.
Again, the District emphasized that it was happy to ac-
commodate Kennedy's desire to pray on the job in a way
that did not interfere with his duties or risk perceptions of
endorsement. Stressing that “[d]evelopment of accommo-
dations is an interactive process,” it invited Kennedy to
reach out to discuss accommodations that might be mutually
satisfactory, offering proposed accommodations and inviting
Kennedy to raise others. Id., at 93–94. The District noted,
however, that “further violations of [its] directives” would be
grounds for discipline or termination. Id., at 95.
Kennedy did not directly respond or suggest a satisfactory
accommodation. Instead, his attorneys told the media that
he would accept only demonstrative prayer on the 50-yard
line immediately after games. During the October 23 and
October 26 games, Kennedy again prayed at the 50-yard line
immediately following the game, while postgame activities
were sti ll ongoing. At the October 23 game, Kennedy
kneeled on the feld alone with players standing nearby. At
the October 26 game, Kennedy prayed surrounded by mem-
bers of the public, including state representatives who at-
tended the game to support Kennedy. The BHS players,
after singing the fght song, joined Kennedy at midfeld after
he stood up from praying.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
555
Sotomayor, J., dissenting
In an October 28 letter, the District notifed Kennedy that
it was placing him on paid administrative leave for violating
its directives at the October 16, October 23, and October 26
games by kneeling on the feld and praying immediately fol-
lowing the games before rejoining the players for postgame
talks. The District recounted that it had offered accommo-
dations to, and offered to engage in further discussions with,
Kennedy to permit his religious exercise, and that Kennedy
had failed to respond to these offers. The District stressed
that it remained willing to discuss possible accommodations
if Kennedy was willing.
After the issues with Kennedy arose, several parents
reached out to the District saying that their children had
participated in Kennedy's prayers solely to avoid separating
themselves from the rest of the team. No BHS students
appeared to pray on the feld after Kennedy's suspension.
In Kennedy's annual review, the head coach of the varsity
team recommended Kennedy not be rehired because he
“failed to follow district policy,” “demonstrated a lack of co-
operation with administration,” “contributed to negative

556 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
relations between parents, students, community members,
coaches,
and the school district,” and “failed to supervise
student-athletes after games due to his interactions with
media and community” members. Id., at 114. The head
coach himself also resigned after 11 years in that position,
expressing fears that he or his staff would be shot from the
crowd or otherwise attacked because of the turmoil created
by Kennedy's media appearances. Three of fve other assist-
ant coaches did not reapply.
C
Kennedy then fled suit. He contended, as relevant, that
the District violated his rights under the Free Speech and
Free Exercise Clauses of the First Amendment. Kennedy
moved for a preliminary injunction, which the District Court
denied based on the circumstances surrounding Kennedy's
prayers. The court concluded that Kennedy had “chose[n] a
time and event,” the October 16 homecoming game, that was
“a big deal” for students, and then “used that opportunity to
convey his religious views” in a manner a reasonable ob-
server would have seen as a “public employee . . . leading an
orchestrated session of faith.” App. to Pet. for Cert. 303.
The Court of Appeals affrmed, again emphasizing the spe-
cifc context of Kennedy's prayers. The court rejected Ken-
nedy's contention that he had been “praying on the ffty-yard
line `silently and alone.' ” Kennedy v. Bremerton School
Dist., 869 F. 3d 813, 825 (CA9 2017). The court noted that
he had in fact refused “an accommodation permitting him to
pray . . . after the stadium had emptied,” “indicat[ing] that
it is essential that his speech be delivered in the presence
of students and spectators. ” Ib id. This Court denied
certiorari.
Following discovery, the District Court granted summary
judgment to the District. The court concluded that Kenne-
dy's 50-yard-line prayers were not entitled to protection
under the Free Speech Clause because his speech was made
in his capacity as a public employee, not as a private citizen.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
557
Sotomayor, J., dissenting
443 F. Supp. 3d 1223, 1237 (WD Wash. 2020). In addition,
the
court held that Kennedy's prayer practice violated the
Establishment Clause, reasoning that “speech from the cen-
ter of the football feld immediately after each game . . . con-
veys offcial sanction.” Id., at 1238. That was especially
true where Kennedy, a school employee, initiated the prayer;
Kennedy was “joined by students or adults to create a group
of worshippers in a place the school controls access to”; and
Kennedy had a long “history of engaging in religious activity
with players” that would have led a familiar observer to be-
lieve that Kennedy was “continuing this tradition” with
prayer at the 50-yard line. Id., at 1238–1239. The District
Court further found that players had reported “feeling com-
pelled to join Kennedy in prayer to stay connected with the
team or ensure playing time,” and that the “slow accumula-
tion of players joining Kennedy suggests exactly the type of
vulnerability to social pressure that makes the Establish-
ment Clause vital in the high school context.” Id., at 1239.
The court rejected Kennedy's free exercise claim, fnding the
District's directive narrowly tailored to its Establishment
Clause concerns and citing Kennedy's refusal to cooperate in
fnding an accommodation that would be acceptable to him.
Id., at 1240.
The Court of Appeals affrmed, explaining that “the facts
in the record utterly belie [Kennedy's] contention that the
prayer was personal and private.” 991 F. 3d 1004, 1017
(CA9 2021). The court instead concluded that Kennedy's
speech constituted government speech, as he “repeatedly ac-
knowledged that—and behaved as if—he was a mentor, moti-
vational speaker, and role model to students specifcally at
the conclusion of a game.” Id., at 1015 (emphasis deleted).
In the a lter native, the cour t concluded that Kennedy's
speech, even if in his capacity as a private citizen, was appro-
priately regulated by the District to avoid an Establishment
Clause violation, emphasizing once more that this conclusion
was tied to the specifc “evolution of Kennedy's prayer prac-

558 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
tices with students” over time. Id., at 1018. The court re-
jec
ted Kennedy's free exercise claim for the reasons stated
by the District Court. Id., at 1020. The Court of Appeals
denied rehearing en banc, and this Court granted certiorari.
II
Properly understood, this case is not about the limits on
an individual's ability to engage in private prayer at work.
This case is about whether a school district is required to
allow one of its employees to incorporate a public, communi-
cative display of the employee's personal religious beliefs
into a school event, where that display is recognizable as part
of a longstanding practice of the employee ministering reli-
gion to students as the public watched. A school district is
not required to permit such conduct; in fact, the Establish-
ment Clause prohibits it from doing so.
A
The Establishment Clause prohibits States from adopting
laws “respecting an establishment of religion.” Amdt. 1;
see Wallace v. Jaffree, 472 U. S. 38, 49 (1985) (recognizing
the Clause's incorporation against the States). The First
Amendment's next Clause prohibits the government from
making any law “prohibiting the free exercise thereof.”
Taken together, these two Clauses (the Religion Clauses) ex-
press the view, foundational to our constitutional system,
“that religious beliefs and religious expression are too pre-
cious to be either proscribed or prescribed by the State.”
Lee v. Weisman, 505 U. S. 577, 589 (1992). Instead, “preser-
vation and transmission of religious beliefs and worship is a
responsibility and a choice committed to the private sphere,”
which has the “freedom to pursue that mission.” Ibid.
The Establishment Clause protects this freedom by “com-
mand[ing] a separation of church and state.” Cutter v.
Wilkinson, 544 U. S. 709, 719 (2005). At its core, this
means forbidding “sponsorship, fnancial support, and active
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
559
Sotomayor, J., dissenting
involvement of the sovereign in religious activity.” Walz v.
T
ax Comm'n of City of New York, 397 U. S. 664, 668 (1970).
In the context of public schools, it means that a State cannot
use “its public school system to aid any or all religious faiths
or sects in the dissemination of their doctrines and ideals.”
Illinois ex rel. McCollum v. Board of Ed. of School Dist.
No. 71, Champaign Cty., 333 U. S. 203, 211 (1948).
Indeed, “[t]he Court has been particularly vigilant in moni-
toring compliance with the Establishment Clause in elemen-
tary and secondary schools.” Edwards v. Aguillard, 482
U. S. 578, 583–584 (1987). The reasons motivating this vigi-
lance inhere in the nature of schools themselves and the
young people they serve. Two are relevant here.
First, government neutrality toward religion is particu-
larly important in the public school context given the role
public schools play in our society. “ `The public school is at
once the symbol of our democracy and the most pervasive
means for promoting our common destiny,' ” meaning that
“ `[i]n no activity of the State is it more vital to keep out
divisive forces than in its schools.' ” Id., at 584. Families
“entrust public schools with the education of their children
. . . on the understanding that the classroom will not pur-
posely be used to advance religious views that may confict
with the private beliefs of the student and his or her family.”
Ibid. Accordingly, the Establishment Clause “proscribes
public schools from `conveying or attempting to convey a
message that religion or a particular religious belief is fa-
vored or preferred' ” or otherwise endorsing religious be-
liefs. Lee, 505 U. S., at 604–605 (Blackmun, J., concurring)
(emphasis deleted).
Second, schools face a higher risk of unconstitutionally “co-
erc[ing] . . . support or participat[ion] in religion or its exer-
cise” than other government entities. Id., at 587 (opinion of
the Court). The State “exerts great authority and coercive
power” in schools as a general matter “through mandatory
attendance requirements. ” Edwards, 482 U. S., at 584.
Page Proof Pending Publication

560 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
Moreover, the State exercises that great authority over chil-
dren,
who are uniquely susceptible to “subtle coercive pres-
sur[e].” Lee, 505 U. S., at 588; cf. Town of Greece v. Gallo-
way, 572 U. S. 565, 590 (2014) (plurality opinion) (“[M]ature
adults,” unlike children, may not be “ `readily susceptible to
religious indoctrination or peer pressure' ”). Children are
particularly vulnerable to coercion because of their “emula-
tion of teachers as role models” and “susceptibility to peer
pressure.” Edwards, 482 U. S., at 584. Accordingly, this
Court has emphasized that “the State may not, consistent
with the Establishment Clause, place primary and secondary
school children” in the dilemma of choosing between “par-
ticipating, with all that implies, or protesting ” a religious
exercise in a public school. Lee, 505 U. S., at 593.
Given the twin Establishment Clause concerns of endorse-
ment and coercion, it is unsurprising that the Court has con-
sistently held integrating prayer into public school activities
to be unconstitutional, including when student participation
is not a formal requirement or prayer is silent. See Wal-
lace, 472 U. S. 38 (mandatory moment of silence for prayer);
School Dist. of Abington Township v. Schempp, 374 U. S.
203 (1963) (nonmandatory recitation of Bible verses and
prayer); Engel, 370 U. S., at 424 (nonmandatory recitation of
one-sentence prayer). The Court also has held that incorpo-
rating a nondenominational general benediction into a gradu-
ation ceremony is unconstitutional. Lee, 505 U. S. 577. Fi-
nally, this Court has held that including prayers in student
football games is unconstitutional, even when delivered by
students rather than staff and even when students them-
selves initiated the prayer. Santa Fe Independent School
Dist. v. Doe, 530 U. S. 290 (2000).
B
Under these precedents, the Establishment Clause viola-
tion at hand is clear. This Court has held that a “[s]tate
offcia[l] direct[ing] the performance of a formal religious ex-
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
561
Sotomayor, J., dissenting
ercise” as a part of the “ceremon[y]” of a school event “con-
f
icts with settled rules pertaining to prayer exercises for
students.” Lee, 505 U. S., at 586–587. Kennedy was on the
job as a school offcial “on government property” when he in-
corporated a public, demonstrative prayer into “government-
sponsored school-related events” as a regularly scheduled
feature of those events. Santa Fe, 530 U. S., at 302.
Kennedy's tradition of a 50-yard line prayer thus strikes
at the heart of the Establishment Clause's concerns about
endorsement. For students and community members at the
game, Coach Kennedy was the face and the voice of the Dis-
trict during football games. The timing and location Ken-
nedy selected for his prayers were “clothed in the traditional
indicia of school sporting events.” Id., at 308. Kennedy
spoke from the playing feld, which was accessible only to
students and school employees, not to the general public.
Although the football game itself had ended, the football
game events had not; Kennedy himself acknowledged that
his responsibilities continued until the players went home.
Kennedy's postgame responsibilities were what placed Ken-
nedy on the 50-yard line in the frst place; that was, after all,
where he met the opposing team to shake hands after the
game. Permitting a school coach to lead students and others
he invited onto the feld in prayer at a predictable time after
each game could only be viewed as a postgame tradition oc-
curring “with the approval of the school administration.”
Ibid.
Kennedy's prayer practice also implicated the coercion
concerns at the center of this Court's Establishment Clause
jurisprudence. This Court has previously recog nized a
heightened potential for coercion where school offcials are
involved, as their “effort[s] to monitor prayer will be per-
ceived by the students as inducing a participation they might
otherwise reject.” Lee, 505 U. S., at 590. The reasons for
fearing this pressure are self-evident. This Court has rec-
ognized that students face immense social pressure. Stu-
Page Proof Pending Publication

562 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
dents look up to their teachers and coaches as role models
and
seek their approval. Students also depend on this ap-
proval for tangible benefts. Players recognize that gaining
the coach's approval may pay dividends small and large, from
extra playing time to a stronger letter of recommendation to
additional support in college athletic recruiting. In addition
to these pressures to please their coaches, this Court has
recognized that players face “immense social pressure” from
their peers in the “extracurricular event that is American
high school football.” Santa Fe, 530 U. S., at 311.
The record before the Court bears this out. The District
Court found, in the evidentiary record, that some students
reported joining Kennedy's prayer because they felt social
pressure to follow their coach and teammates. Kennedy
told the District that he began his prayers alone and that
players followed each other over time until a majority of the
team joined him, an evolution showing coercive pressure at
work.
Kennedy does not defend his longstanding practice of lead-
ing the team in prayer out loud on the feld as they kneeled
around him. Instead, he responds, and the Court accepts,
that his highly visible and demonstrative prayer at the last
three games before his suspension did not violate the Estab-
lishment Clause because these prayers were quiet and thus
private. This Court's precedents, however, do not permit
isolating government actions from their context in determin-
ing whether they violate the Establishment Clause. To the
contrary, this Court has repeatedly stated that Establish-
ment Clause inquiries are fact specifc and require careful
consideration of the origins and practical reality of the spe-
cifc practice at issue. See, e. g., id., at 315; Lee, 505 U. S., at
597. In Santa Fe, the Court specifcally addressed how to
determine whether the implementation of a new policy re-
garding prayers at football games “insulates the continuation
of such prayers from constitutional scrutiny.” 530 U. S., at
315. The Court held that “inquiry into this question not
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
563
Sotomayor, J., dissenting
only can, but must, i nclude an exami nati on of the cir-
cumst
ances surrounding ” the change in policy, the “long-
established tradition” before the change, and the “ `unique
circumstances' ” of the school in questi on. Ib i d. Th is
Court's precedent thus does not permit treating Kennedy's
“new” prayer practice as occurring on a blank slate, any
more than those in the District's school community would
have experienced Kennedy's changed practice (to the degree
there was one) as erasing years of prior actions by Kennedy.
Like the policy change in Santa Fe, Kennedy's “changed”
prayers at these last three games were a clear continuation
of a “long-established tradition of sanctioning ” school offcial
involvement in student prayers. Ibid. Students at the
three games following Kennedy's changed practice witnessed
Kennedy kneeling at the same time and place where he had
led them in prayer for years. They witnessed their peers
from opposing teams joining Kennedy, just as they had when
Kennedy was leading joint team prayers. They witnessed
members of the public and state representatives going onto
the feld to support Kennedy's cause and pray with him.
Kennedy did nothing to stop this unauthorized access to the
feld, a clear dereliction of his duties. The BHS players in
fact joined the crowd around Kennedy after he stood up from
praying at the last game. That BHS students did not join
Kennedy in these last three specifc prayers did not make
those events compliant with the Establishment Clause. The
coercion to do so was evident. Kennedy himself apparently
anticipated that his continued prayer practice would draw
student participation, requesting that the District agree that
it would not “interfere” with students joining him in the fu-
ture. App. 71.
Finally, Kennedy stresses that he never formally required
students to join him in his prayers. But existing precedents
do not require coercion to be explicit, particularly when chil-
dren are involved. To the contrary, this Court's Establish-
ment Clause jurisprudence establishes that “ `the govern-
Page Proof Pending Publication

564 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
ment may no more use social pressure to enforce orthodoxy
than
it may use more direct means.' ” Santa Fe, 530 U. S.,
at 312. Thus, the Court has held that the Establishment
Clause “will not permit” a school “ `to exact religious con-
formity from a student as the price' of joining her classmates
at a varsity football game.” Ibid. To uphold a coach's inte-
gration of prayer into the ceremony of a football game, in
the context of an established history of the coach inviting
student involvement in prayer, is to exact precisely this price
from students.
C
As the Court explains, see ante, at 527, Kennedy did not
“shed [his] constitutional rights . . . at the schoolhouse gate”
while on duty as a coach. Tinker v. Des Moines Independ-
ent Community School Dist., 393 U. S. 503, 506 (1969).
Constitutional rights, however, are not absolutes. Rights
often confict and balancing of interests is often required to
protect the separate rights at issue. See Dobbs v. Jackson
Women's Health Organization, 597 U. S. 215, 370 (2022)
(Breyer, Sotomayor, and Kagan, JJ., dissenting) (noting
that “the presence of countervailing interests . . . is what
ma[kes]” a constitutional question “hard, and what necessi-
tate[s] balancing ”).
The particular tensions at issue in this case, between the
speech interests of the government and its employees and
between public institutions' religious neutrality and private
individuals' religious exercise, are far from novel. This
Court's settled precedents offer guidance to assist courts,
governments, and the public in navigating these tensions.
Under these precedents, the District's interest in avoiding
an Establishment Clause violation justifed both its time and
place restrictions on Kennedy's speech and his exercise of
religion.
First, as to Kennedy's free speech claim, Kennedy “ac-
cept[ed] certain limitations” on his freedom of speech when
he accepted government employment. Garcetti v. Ceballos,
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
565
Sotomayor, J., dissenting
547 U. S. 410, 418 (2006). The Court has recognized that
“
[g]overnment employers, like private employers, need a sig-
nifcant degree of control over their employees' words and
actions” to ensure “the effcient provision of public services.”
Ibid. Case law instructs balancing “the interests of the
teacher, as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in pro-
moting the effciency of the public services it performs
through its employees” to determine whose interests should
prevail. Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).
As the Court of Appeals below outlined, the District has
a strong argument that Kennedy's speech, formally inte-
grated into the center of a District event, was speech in his
offcial capacity as an employee that is not entitled to First
Amendment protections at all. See Garcetti, 547 U. S., at
418; 991 F. 3d, at 1014–1016 (applying Garcetti).
3
It is un-
necessary to resolve this question, however, because, even
assuming that Kennedy's speech was in his capacity as a
private citizen, the District's responsibilities under the Es-
tablishment Clause provided “adequate justifcation” for re-
stricting it. Garcetti, 547 U. S., at 418.
3
The Court's primary argument that Kennedy's speech is not in his
offcial capacity is that he was permitted “to call home, check a text, [or]
socialize” during the time period in question. An te, at 531. These
truly private, informal communications bear little resemblance, however,
to what Kennedy did. Kennedy explicitly sought to make his demonstra-
tive prayer a permanent ritual of the postgame events, at the physical
center of those events, where he was present by virtue of his job responsi-
bilities, and after years of giving prayer-flled motivational speeches to
students at the same relative time and location. In addition, Kennedy
gathered public offcials and other members of the public onto the feld to
join him in the prayer, contrary to school policies controlling access to
the feld. Such behavior raises an entirely different risk of depriving the
employer of “control over what the employer itself has commissioned or
created” than an employee making a call home on the sidelines, feetingly
checking email, or pausing to hug a friend in the crowd. Garcetti, 547
U. S., at 422.
Page Proof Pending Publication

566 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
Similarly, Kennedy's free exercise claim must be consid-
ered
in light of the fact that he is a school offcial and, as
such, his participation in religious exercise can create Estab-
lishment Clause conficts. Accordingly, his right to pray at
any time and in any manner he wishes while exercising his
professional duties is not absolute. See Lee, 505 U. S., at 587
(noting that a school offcial's choice to integrate a prayer
is “attributable to the State”). As the Court explains, see
ante, at 525–527, the parties agree (and I therefore assume)
that for the purposes of Kennedy's claim, the burden is on
the District to establish that its policy prohibiting Kennedy's
public prayers was the least restrictive means of furthering
a compelling state interest. Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U. S. 520, 546 (1993).
Here, the District's directive prohibiting Kennedy's de-
monstrative speech at the 50-yard line was narrowly tailored
to avoid an Establishment Clause violation. The District's
suspension of Kennedy followed a long history. The last
three games proved that Kennedy did not intend to pray
silently, but to thrust the District into incorporating a reli-
gious ceremony into its events, as he invited others to join
his prayer and anticipated in his communications with the
District that students would want to join as well. Notably,
the District repeatedly sought to work with Kennedy to de-
velop an accommodation to permit him to engage in religious
exercise during or after his game-related responsibilities.
Kennedy, however, ultimately refused to respond to the Dis-
trict's suggestions and declined to communicate with the
District, except through media appearances. Because the
District's valid Establishment Clause concerns satisfy strict
scrutiny, Kennedy's free exercise claim fails as well.
III
Despite the overwhelming precedents establishing that
school offcials leading prayer violates the Establishment
Clause, the Court today holds that Kennedy's midfeld prayer
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
567
Sotomayor, J., dissenting
practice did not violate the Establishment Clause. This de-
cisi
on rests on an erroneous understanding of the Religion
Clauses. It also disregards the balance this Court's cases
strike among the rights conferred by the Clauses. The
Court relies on an assortment of pluralities, concurrences,
and dissents by Members of the current majority to effect
fundamental changes in this Court's Religion Clauses juris-
prudence, all the while proclaiming that nothing has changed
at all.
A
This case involves three Clauses of the First Amendment.
As a threshold matter, the Court today proceeds from two
mistaken understandings of the way the protections these
Clauses embody interact.
First, the Court describes the Free Exercise and Free
Speech Clauses as “work[ing] in tandem” to “provid[e] over-
lapping protection for expressive religious activities,” leav-
ing religious speech “doubly protect[ed]. ” Ante, at 523.
This narrative noticeably (and improperly) sets the Estab-
lishment Clause to the side. The Court is correct that cer-
tain expressive religious activities may fall within the ambit
of both the Free Speech Clause and the Free Exercise
Clause, but “[t]he First Amendment protects speech and reli-
gion by quite different mechanisms.” Lee, 505 U. S., at 591.
The First Amendment protects speech “by ensuring its full
expression even when the government participates.” Ibid.
Its “method for protecting freedom of worship and freedom
of conscience in religious matters is quite the reverse,” how-
ever, based on the understanding that “the government is
not a prime participant” in “religious debate or expression,”
whereas government is the “object of some of our most im-
portant speech.” Ibid. Thus, as this Court has explained,
while the Free Exercise Clause has “close parallels in the
speech prov isi ons of the First Amendment, ” the First
Amendment's protections for religion diverge from those for
speech because of the Establishment Clause, which provides
Page Proof Pending Publication

568 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
a “specifc prohibition on forms of state intervention in reli-
g
ious affairs with no precise counterpart in the speech provi-
sions.” Ibid. Therefore, while our Constitution “counsel[s]
mutual respect and tolerance,” the Constitution's vision of
how to achieve this end does in fact involve some “singl[ing]
out” of religious speech by the government. Ante, at 514.
This is consistent with “the lesson of history that was and is
the inspiration for the Establishment Clause, the lesson that
in the hands of government what might begin as a tolerant
expression of religious views may end in a policy to indoctri-
nate and coerce.” Lee, 505 U. S., at 591–592.
Second, the Court contends that the lower courts erred by
introducing a false tension between the Free Exercise and
Establishment Clauses. See ante, at 532–533. The Court,
however, has long recognized that these two Clauses, while
“express[ing] complementary values,” “often exert confict-
ing pressures.” Cutter, 544 U. S., at 719. See also Locke v.
Davey, 540 U. S. 712, 718 (2004) (describing the Clauses as
“frequently in tension”). The “absolute terms” of the two
Clauses mean that they “tend to clash” if “expanded to a
logical extreme.” Walz, 397 U. S., at 668–669.
The Court inaccurately implies that the courts below re-
lied upon a rule that the Establishment Clause must always
“prevail” over the Free Exercise Clause. Ante, at 533. In
focusing almost exclusively on Kennedy's free exercise claim,
however, and declining to recognize the conficting rights at
issue, the Court substitutes one supposed blanket rule for
another. The proper response where tension arises be-
tween the two Clauses is not to ignore it, which effectively
silently elevates one party's right above others. The proper
response is to identify the tension and balance the interests
based on a careful analysis of “whether [the] particular acts
in question are intended to establish or interfere with reli-
gious beliefs and practices or have the effect of doing so.”
Walz, 397 U. S., at 669. As discussed above, that inquiry
leads to the conclusion that permitting Kennedy's desired re-
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
569
Sotomayor, J., dissenting
ligious practice at the time and place of his choosing, without
regard
to the legitimate needs of his employer, violates the
Establishment Clause in the particular context at issue here.
Supra, at 560–564.
B
For decades, the Court has recognized that, in determining
whether a school has violated the Establishment Clause, “one
of the relevant questions is whether an objective observer,
acquainted with the text, legislative history, and implemen-
tation of the [practice], would perceive it as a state endorse-
ment of prayer in public schools.” Santa Fe, 530 U. S., at
308 (internal quotation marks omitted). The Court now
says for the frst time that endorsement simply does not mat-
ter, and completely repudiates the test established in Lemon,
403 U. S. 602. Ante, at 534–536. Both of these moves are
erroneous and, despite the Court's assurances, novel.
Start with endorsement. The Court reserves particular
criticism for the longstanding understanding that govern-
ment action that appears to endorse religion violates the Es-
tablishment Clause, which it describes as an “offshoot” of
Lemon and paints as a “ `modifed heckler's veto, in which
. . . religious activity can be proscribed' ” based on “ ` “percep-
tions” ' ” or “ ` “discomfort.” ' ” Ante, at 534 (quoting Good
News Club v. Milford Central School, 533 U. S. 98, 119
(2001)). This is a strawman. Precedent long has recog-
nized that endorsement concerns under the Establishment
Clause, properly understood, bear no relation to a “ `heckler's
veto.' ” Ante, at 534. Good News Club itself explained the
difference between the two: The endorsement inquiry consid-
ers the perspective not of just any hypothetical or unin-
formed observer experiencing subjective discomfort, but of
“ `the reasonable observer' ” who is “ `aware of the history
and context of the community and forum in which the reli-
gious [speech takes place].' ” 533 U. S., at 119. That is be-
cause “ `the endorsement inquiry is not about the perceptions
of particular individuals or saving isolated nonadherents
Page Proof Pending Publication

570 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
from . . . discomfort' ” but concern “ `with the political com-
munity
writ large.' ” Ibid. (emphasis deleted).
Given this concern for the political community, it is unsur-
prising that the Court has long prioritized endorsement con-
cerns in the context of public education. See, e. g., Santa Fe,
530 U. S., at 305; Wallace, 472 U. S., at 60–61; Edwards, 482
U. S., at 593; see also Lee, 505 U. S., at 618–619 (Souter, J.,
concurring) (explaining that many of the Court's Establish-
ment Clause holdings in the school context are concerned
not with whether the policy in question “coerced students
to participate in prayer” but with whether it “ `convey[ed] a
message of state approval of prayer activities in the public
schools' ” (quoting Wallace, 472 U. S., at 61)).
4
No subse-
quent decisions in other contexts, including the cases about
monuments and legislative meetings on which the Court re-
lies, have so much as questioned the application of this
core Establishment Clause concern in the context of public
schools. In fact, Town of Greece v. Galloway, 572 U. S. 565,
which held a prayer during a town meeting permissible, spe-
cifcally distinguished Lee because Lee considered the Estab-
lishment Clause in the context of schools. 572 U. S., at 590
(plurality opinion).
Paying heed to these precedents would not “ `purge from
the public sphere' anything an objective observer could rea-
sonably infer endorses” religion. Ante, at 535. To the con-
trary, the Court has recognized that “there will be instances
when religious values, religious practices, and religious per-
sons will have some interaction with the public schools and
their students.” Lee, 505 U. S., at 598–599. These instances,
the Court has said, are “often questions of accommodat[ing]”
4
The Court attempts to recast Lee and Santa Fe as solely concerning
coercion, ante, at 541–542, but both cases emphasized that it was impor-
tant to avoid appearances of “ `state endorsement of prayer in public
schools.' ” Santa Fe, 530 U. S., at 308; see Lee, 505 U. S., at 590 (fnding
that the “degree of school involvement” indicated that the “prayers bore
the imprint of the State”).
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
571
Sotomayor, J., dissenting
religious practices to the degree possible while respecting the
Est
ablishment Clause. Id., at 599.
5
In short, the endorse-
ment inquiry dictated by precedent is a measured, practical,
and administrable one, designed to account for the competing
interests present within any given community.
Despite all of this authority, the Court claims that it “long
ago abandoned” both the “endorsement test” and this Court's
decision in Lemon, 403 U. S. 602. Ante, at 534. The Court
chiefy cites the plurality opinion in American Legion v.
American Humanist Assn., 588 U. S. ––– (2019) to support
this contention. That plurality opinion, to be sure, criticized
Lemon's effort at establishing a “grand unifed theory of the
Establishment Clause” as poorly suited to the broad “array”
of diverse establishment claims. 588 U. S., at –––, –––. All
the Court in American Legion ultimately held, however, was
that application of the Lemon test to “longstanding monu-
ments, symbols, and practices” was ill-advised for reasons
specifc to those contexts. 588 U. S., at –––; see also id.,
at ––– – ––– (discussing at some length why the Lemon test
was a poor ft for those circumstances). The only categorical
rejection of Lemon in American Legion appeared in sepa-
rate writings. See 588 U. S., at ––– (Kavanaugh, J., concur-
ring); id., at ––– (Thomas, J., concurring in judgment); id.,
5
The notion that integration of religious practices into the workplace
may require compromise and accommodation is not unique to the public-
employer context where Establishment Clause concerns arise. The
Court's precedents on religious discrimination claims similarly recognize
that the employment context requires balancing employer and employee
interests, and that religious practice need not always be accommodated.
See Kennedy v. Bremerton School Dist., 586 U. S. –––, ––– (2019) (Alito,
J., statement respecting denial of certiorari) (noting that “Title VII's pro-
hibition of discrimination on the basis of religion does not require an em-
ployer to make any accommodation that imposes more than a de minimis
burden”). Surely, an employee's religious practice that forces a school
district to engage in burdensome measures to stop spectators from rush-
ing onto a feld and knocking people down imposes much more than a de
minimis burden.

572 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
at ––– (Gorsuch, J., concurring in judgment); see ante, at
535,
n. 4.
6
The Court now goes much further, overruling Lemon en-
tirely and in all contexts. It is wrong to do so. Lemon
summarized “the cumulative criteria developed by the Court
over many years” of experience “draw[ing] lines” as to when
government engagement with religion violated the Estab-
lishment Clause. 403 U. S., at 612. Lemon properly con-
cluded that precedent generally directed consideration of
whether the government action had a “secular legislative
purpose,” whether its “principal or primary effect must be
one that neither advances nor inhibits religion,” and whether
in practice it “foster[s] `an excessive government entangle-
ment with religion.' ” Id., at 612–613. It is true “that rigid
application of the Lemon test does not solve every Establish-
ment Clause problem,” but that does not mean that the test
has no value. American Legion, 588 U. S., at ––– (Kagan,
J., concurring in part).
To put it plainly, the purposes and effects of a government
action matter in evaluating whether that action violates the
Establishment Clause, as numerous precedents beyond
Lemon instruct in the particular context of public schools.
See supra, at 558–560, 562. Neither the critiques of Lemon
as setting out a dispositive test for all seasons nor the fact
that the Court has not referred to Lemon in all situations
6
The Court also cites Shurtleff v. Boston, 596 U. S. 243 (2022), as evi-
dence that the Lemon test has been rejected. See ante, at 535. Again,
while separate writings in Shurtleff criticized Lemon, the Court did not.
The opinion of the Court simply applied the longstanding rule that, when
the government does not speak for itself, it cannot exclude speech based
on the speech's “ `religious viewpoint.' ” Shurtleff, 596 U. S., at 258 (quot-
ing Good News Club, 533 U. S., at 112). The Court further infers Lemon's
implicit overruling from recent decisions that do not apply its test. See
ante, at 535, n. 4. As explained above, however, not applying a test in a
given case is a different matter from overruling it entirely and, moreover,
the Court has never before questioned the relevance of endorsement in
the school-prayer context.
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
573
Sotomayor, J., dissenting
support this Court's decision to dismiss that precedent en-
tirely
, particularly in the school context.
C
Upon overruling one “grand unifed theory,” the Court
introduces another: It holds that courts must interpret
whether an Establishment Clause violation has occurred
mainly “by `reference to historical practices and understand-
ings.' ” Ante, at 535 (quoting Town of Greece, 572 U. S., at
576 (internal quotation marks omitted)). Here again, the
Court professes that nothing has changed. In fact, while
the Court has long referred to historical practice as one ele-
ment of the analysis in specifc Establishment Clause cases,
the Court has never announced this as a general test or ex-
clusive focus. American Legion, 588 U. S., at ––– – –––
(Breyer, J., concurring) (noting that the Court was “appro-
priately `look[ing] to history for guidance' ” but was not
“adopt[ing] a `history and tradition test' ”).
The Court reserves any meaningful explanation of its
history-and-tradition test for another day, content for now to
disguise it as established law and move on. It should not
escape notice, however, that the effects of the majority's new
rule could be profound. The problems with elevating his-
tory and tradition over purpose and precedent are well docu-
mented. See Dobbs, 597 U. S., at 374 (Breyer, Sotomayor,
and Kagan, JJ., dissenting) (explaining that the Framers
“defned rights in general terms, to permit future evolution
in their scope and meaning ”); New York State Rife & Pistol
Assn., Inc. v. Bruen, 597 U. S. 1, 107–111 (2022) (Breyer, J.,
dissenting) (explaining the pitfalls of a “near-exclusive reli-
ance on history” and offering examples of when this Court
has “misread” history in the past); Brown v. Davenport, 596
U. S. 118, 152 (2022) (Kagan, J., dissenting) (noting the inac-
curacies risked when courts “play amateur historian”).
For now, it suffces to say that the Court's history-and-
tradition test offers essentially no guidance for school admin-
Page Proof Pending Publication

574 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
istrators. If even judges and Justices, with full adversarial
br
iefng and argument tailored to precise legal issues, regu-
larly disagree (and err) in their amateur efforts at history,
how are school administrators, faculty, and staff supposed to
adapt? How will school administrators exercise their re-
sponsibilities to manage school curriculum and events when
the Court appears to elevate individuals' rights to religious
exercise above all else? Today's opinion provides little in
the way of answers; the Court simply sets the stage for fu-
ture legal changes that will inevitably follow the Court's
choice today to upset longstanding rules.
D
Finally, the Court acknowledges that the Establishment
Clause prohibits the government from coercing people to
engage in religion practice, ante, at 536–537, but its analysis
of coercion misconstrues both the record and this Court's
precedents.
The Court claims that the District “never raised coercion
concerns” simply because the District conceded that there
was “ `no evidence that students [were] directly coerced to
pray with Kennedy.' ” Ante, at 537 (emphasis added). The
Court's suggestion that coercion must be “direc[t]” to be cog-
nizable under the Establishment Clause is contrary to long-
established precedent. The Court repeatedly has recog-
nized that indirect coercion may raise serious establishment
concerns, and that “there are heightened concerns with pro-
tecting freedom of conscience from subtle coercive pressure
in the elementary and secondary public schools.” Lee, 505
U. S., at 592 (opinion of the Court); see also supra, at 559–560.
Tellingly, none of this Court's major cases involving school
prayer concerned school practices that required students to
do any more than listen silently to prayers, and some did not
even formally require students to listen, instead providing
that attendance was not mandatory. See Santa Fe, 530
U. S., at 296–298; Lee, 505 U. S., at 593; Wallace, 472 U. S., at
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
575
Sotomayor, J., dissenting
40; School Dist. of Abington Township, 374 U. S., at 205;
E
ngel, 370 U. S., at 422. Nevertheless, the Court concluded
that the practices were coercive as a constitutional matter.
Today's Court quotes the Lee Court's remark that endur-
ing others' speech is “ `part of learning how to live in a plural-
istic society.' ” Ante, at 538 (quoting 505 U. S., at 590). The
Lee Court, however, expressly concluded, in the very same
paragraph, that “[t]his argument cannot prevail” in the
school-prayer context because the notion that being subject
to a “brief ” prayer in school is acceptable “overlooks a fun-
damental dynamic of the Constitution”: its “specifc prohibi-
tion on . . . state intervention in religious affairs.” Id., at
591; see also id., at 594 (“[T]he government may no more use
social pressure to enforce orthodoxy than it may use more
direct means”).
7
The Court also distinguishes Santa Fe because Kennedy's
prayers “were not publicly broadcast or recited to a captive
audience.” Ante, at 542. This misses the point. In Santa
Fe, a student council chaplain delivered a prayer over the
public-address system before each varsity football game of
the season. 530 U. S., at 294. Students were not required
as a general matter to attend the games, but “cheerleaders,
members of the band, and, of course, the team members
themselves” were, and the Court would have found an “im-
proper effect of coercing those present” even if it “regard[ed]
every high school student's decision to attend . . . as purely
voluntary.” Id., at 311–312. Kennedy's prayers raise pre-
cisely the same concerns. His prayers did not need to be
broadcast. His actions spoke louder than his words. His
7
The Court further claims that Lee is distinguishable because it involved
prayer at an event in which the school had “ `in every practical sense com-
pelled attendance and participation in [a] religious exercise.' ” Ante, at
541 (quoting 505 U. S., at 598). The Court in Lee, however, recognized
expressly that attendance at the graduation ceremony was not mandatory
and that students who attended only had to remain silent during and after
the prayers. Id., at 583, 593.
Page Proof Pending Publication

576 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
prayers were intentionally, visually demonstrative to an au-
dience
aware of their history and no less captive than the
audience in Santa Fe, with spectators watching and some
players perhaps engaged in a song, but all waiting to rejoin
their coach for a postgame talk. Moreover, Kennedy's pray-
ers had a greater coercive potential because they were deliv-
ered not by a student, but by their coach, who was still on
active duty for postgame events.
In addition, despite the direct record evidence that stu-
dents felt coerced to participate in Kennedy's prayers, the
Court nonetheless concludes that coercion was not present
in any event because “Kennedy did not seek to direct any
prayers to students or require anyone else to participate.”
Ante, at 538; see also ante, at 542, n. 7 (contending that the
fact that “students might choose, unprompted, to participate”
in their coach's on-the-feld prayers does not “necessarily
prove them coercive”). But nowhere does the Court engage
with the unique coercive power of a coach's actions on his
adolescent players.
8
In any event, the Court makes this assertion only by draw-
ing a bright line between Kennedy's yearslong practice of
leading student prayers, which the Court does not defend,
and Kennedy's fnal three prayers, which BHS students did
not join, but student peers from the other teams did. See
ante, at 538 (distinguishing Kennedy's prior practice and fo-
cusing narrowly on “three prayers . . . in October 2015”).
As discussed above, see supra, at 562, this mode of analysis
contravenes precedent by “turn[ing] a blind eye to the con-
text in which [Kennedy's practice] arose,” Santa Fe, 530
8
Puzzlingly, the Court goes a step further and suggests that Kennedy
may have been in violation of the District policy on Religious-Related
Activities and Practices if he did not permit the players to join his prayers
because the policy prohibited staff from “discourag[ing]” student prayer.
Ante, at 517, 542, n. 7. The policy, however, specifcally referred to stu-
dent prayer of the student's “own volition” and equally prohibited staff
from “encourag[ing]” student prayer. App. 28.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 597 U. S. 507 (2022)
577
Sotomayor, J., dissenting
U. S., at 315.
9
Th
is Court's precedents require a more nu-
anced inquiry into the realities of coercion in the specifc
school context concerned than the majority recognizes today.
The question before the Court is not whether a coach taking
a knee to pray on the feld would constitute an Establishment
Clause violation in any and all circumstances. It is whether
permitting Kennedy to continue a demonstrative prayer
practice at the center of the football feld after years of inap-
propriately leading students in prayer in the same spot, at
that same time, and in the same manner, which led students
to feel compelled to join him, violates the Establishment
Clause. It does.
Having disregarded this context, the Court fnds Kenne-
dy's three-game practice distinguishable from precedent be-
cause the prayers were “quie[t]” and the students were oth-
erwise “occupied.” Ante, at 538. The record contradicts
this narrative. Even on the Court's myopic framing of the
facts, at two of the three games on which the Court focuses,
players witnessed student peers from the other team and
other authority fgures surrounding Kennedy and joining
him in prayer. The coercive pressures inherent in such a
9
The Court claims that Kennedy's “past prayer practices” should not be
seen to “taint” his current ones by again turning to Town of Greece v.
Galloway, the town assembly prayer case. Ante, at 542, n. 7. In the
passage the Court cites, Town of Greece concluded that “two remarks” by
two different “guest minister[s]” on two isolated occasions did not consti-
tute a “pattern of prayers that over time denigrate, proselytize, or betray
an impermissible government purpose.” 572 U. S., at 585. As Town of
G reece itself emphasizes, the school context presents Establishment
Clause concerns distinct from those raised in a town meeting for “mature
adults.” Id., at 590 (plurality opinion). See supra, at 559–560. In any
event, Kennedy's yearslong “past prayer practices” constituted an estab-
lished pattern, not an isolated occasion, and he hardly “abandoned” the
practice. Ante, at 542, n. 7. As his October 14 letter and subsequent
actions made clear, Kennedy attempted to hew as closely to his past prac-
tice as possible, taking a knee at the same time and place as previously,
and in the same manner that initially drew students to join him and by
improperly permitting spectators to join him on the feld.

578 KENNEDY
v. BREMERTON SCHOOL DIST.
Sotomayor, J., dissenting
situation are obvious. Moreover, Kennedy's actual demand
to
the District was that he give “verbal” prayers specifcally
at the midfeld position where he traditionally led team pray-
ers, and that students be allowed to join him “voluntarily”
and pray. App. 64, 69–71. Notably, the Court today does
not embrace this demand, but it nonetheless rejects the Dis-
trict's right to ensure that students were not pressured to
pray.
To reiterate, the District did not argue, and neither court
below held, that “any visible religious conduct by a teacher
or coach should be deemed . . . impermissibly coercive on
students.” Ante, at 540. Nor has anyone contended that a
coach may never visibly pray on the feld. The courts below
simply recognized that Kennedy continued to initiate pray-
ers visible to students, while still on duty during school
events, under the exact same circumstances as his past prac-
tice of leading student prayer. It is unprecedented for the
Court to hold that this conduct, taken as a whole, did not
raise cognizable coercion concerns. Importantly, nothing in
the Court's opinion should be read as calling into question
that Kennedy's conduct may have raised other concerns re-
garding disruption of school events or misuse of school facili-
ties that would have separately justifed employment action
against Kennedy.
***
The Free Exercise Clause and Establishment Clause are
equally integral in protecting religious freedom in our soci-
ety. The frst serves as “a promise from our government,”
while the second erects a “backstop that disables our govern-
ment from breaking it” and “start[ing] us down the path to the
past, when [the right to free exercise] was routinely abridged.”
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582
U. S. 449, 495–496 (2017) (Sotomayor, J., dissenting).
Today, the Court once again weakens the backstop. It el-
evates one individual's interest in personal religious exercise,
in the exact time and place of that individual's choosing, over
Page Proof Pending Publication

Cite
as: 597 U. S. 507 (2022)
579
Sotomayor, J., dissenting
society's interest in protecting the separati on between
church
and state, eroding the protections for religious liberty
for all. Today's decision is particularly misguided because
it elevates the religious rights of a school offcial, who volun-
tarily accepted public employment and the limits that public
employment entails, over those of his students, who are re-
quired to attend school and who this Court has long recog-
nized are particularly vulnerable and deserving of protec-
tion. In doing so, the Court sets us further down a perilous
path in forcing States to entangle themselves with religion,
with all of our rights hanging in the balance. As much as
the Court protests otherwise, today's decision is no victory
for religious liberty. I respectfully dissent.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 548, line 21: “or” is replaced with “nor”
p. 557, line 6 from bottom: “the” is replaced with “a”
p. 564, lines 14–15 from bottom: “require[s]” is replaced with
“necessitate[s]”
p. 570, line 7 from bottom: “objective” is inserted before “observer”