Kennedy v. Bremerton Sch. Dist. (21-418)

argument 21-418

Kennedy v. Bremerton Sch. Dist.

Supreme Court of the United States 1h 47m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What constitutional claims is Coach Kennedy asserting in this case?

John G. Roberts 0:00

We'll we'll hear argument first this morning in case twenty one four eighteen, Kennedy

Brittany D. Clement 0:05

versus Bremerton School District. Mr. Clement. Mr Chief Justice, and may it please the court. When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own. That private religious expression was doubly protected by the free exercise and free speech clauses. When the school district fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it ignored a veritable wall of this court's precedence that make clear that a school does not endorse private religious speech just because it fails to censor it. As much as the District would like to change the subject, the record is clear that Coach Kennedy was fired for that midfield prayer, not for any earlier practices.

Brittany D. Clement 0:58

And the record is equally clear that the district's sole reason for its actions was out of endorsement concerns, not concerns for band members' safety or how many players joined the coach in the prayer. In fact, Coach Kennedy was disciplined. For events at two games in particular, October 23rd and October 26th. At the first of those games, it is undisputed that no one joined the coach in his prayer. Nonetheless, that solo prayer was Exhibit A in his firing. Exhibit B was the October 26th game, when no players joined him in the prayer. Yet nonetheless, the district, throughout this case, both contemporaneously and the first. End to the EOC and indeposition has confirmed that the sole driving force behind its actions has been avoiding endorsement.

Brittany D. Clement 1:47

The Ninth Circuit held that the district's actions not only comply with the First Amendment, but are compelled by it. That decision is flatly inconsistent with this Court's precedence. The Ninth Circuit's government speech holding ignores this Court's statement in Garcetti to avoid overly broad job descriptions. And the Ninth Circuit's establishment clause holding fails to grasp a basic teaching of this. This Court's cases that has been said over and over again and is simple enough for even young students to understand that the government does not endorse all private religious speech just because it takes place on the school side of the gates. I welcome the court's questions.

Clarence Thomas 2:28

Um Mr. Clement, just so I'm clear, are you pursuing below you had a free exercise claim and you had a um free a speech claim. Uh which are you pursuing? Are you pursuing both now or are you pursuing them separately or is this a sort of a hybrid claim argument you're making?

Brittany D. Clement 2:49

So, Justice Thomas, we are pursuing them both. They're both fully preserved in this court, but I do think you are right in the sense that this is a hybrid type case in which the Free Speech Clause and the Free Exercise Clause reinforce each other. And I think it directly reinforces how the court should approach the case. Because when a government acts, not because it's trying to maintain discipline in the school. school or maintain order or avoid disruption, but it is taking action precisely because the speech is religious and the school fears endorsement concerns. That's a case where strict scrutiny applies and it's not just a case for ordinary pickering balancing.

Clarence Thomas 3:30

So uh d h where does Garcetti fit in? I mean uh it seems as though that's uh muddying the water a little bit because uh you would not normally think of a free exercise claim as being uh amenable to Garcetti.

Brittany D. Clement 3:46

I think that's a fair point, Justice Thomas. I guess if the if the st if the statement really is the uh government's own speech, then I don't think you'd have the basis for either a free speech claim or a free exercise claim. It may be, though, that in deciding whether or not the coach's speech is his own speech or the government's speech, you might apply a slightly different test in the free exercise context than you would would in the free speech case. But either way, I think we are comfortably on the private side of the Garsetti inquiry, because the Garsetti inquiry asks whether this is part of the coach's job duties.