Kennedy v. Bremerton School District

Fired for public prayer

For eight years, Coach Joseph Kennedy helped lead the football team at Bremerton High School, a public school in Washington. Win or lose, Kennedy would walk to the 50-yard-line after the game, kneel for a few seconds, and thank God in quiet prayer. Eventually, some players asked if they could join Coach Kennedy. He told them, “This is a free country,” and “You can do what you want.” The students soon noticed the tradition and would voluntarily join the coach on the field for an uplifting and unifying message, inviting players from opposing teams to listen in.

Despite receiving an outpouring of support for allowing Coach Kennedy to continue expressing his faith, the school district demanded Kennedy stop praying where anyone could see him because some onlookers might be offended and see it as an unacceptable school “endorsement” of religion. While the school district had no problem with Coach Kennedy inspiring his students, the school district soured on it altogether when it learned that Kennedy did so through prayer. Coach Kennedy refused the school’s censorship and was no longer welcome as part of the coaching staff.

Six years off the field and in court

Coach Kennedy filed a lawsuit against Bremerton School District in 2016 and asked to continue coaching while the case made its way through the court system. The request made it all the way to the United States Supreme Court, where it was ultimately denied and sent back down to the district court to further develop the case. In the decision, four Justices expressed serious concern about how the school district had interpreted the First Amendment.

After the lower courts again sided with the school district, the Supreme Court agreed to hear the case. Becket submitted a friend-of-the-court brief on behalf of the U.S. Conference of Catholic Bishops on March 2, 2022.

Public prayer is not a boogie man

The Ninth Circuit Court of Appeals ruled that the Constitution’s Establishment Clause required the school to ban Coach Kennedy from praying because permitting it would amount to government “endorsement” of religion. The school district’s lawyers have gone even further, labeling Coach Kennedy’s quiet prayers as “coercion” that the government must censor, because an onlooker might not feel comfortable seeing prayer in public.

But that’s not how the Constitution works. The First Amendment lets individual people—not the government—decide whether and how to pray. Becket’s friend-of-the-court brief at the Supreme Court explains a basic truth about public religious expression – it’s a normal and natural part of our culture and shared history as a country and is no more coercive than any other form of protected expression in the public square. Excluding religion—and only religion—from acceptable forms of public expression and inspiration says that something is inherently wrong and offensive about religion itself. The First Amendment takes that conclusion off the table. A coach doesn’t have to check his religion at the schoolhouse gates for fear that someone in the stands might feel offended.

On June 27, 2022, the United States Supreme Court ruled to protect Coach Kennedy, writing that Kennedy was pursued by the government “for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.” In its decision, the Court also decided to eliminate the Lemon test, a vague legal standard used to decide Establishment Clause cases. The Court confirmed that Lemon has long been dead, and that the Establishment Clause is understood through America’s history and tradition of religious pluralism. The opinion, authored by Justice Gorsuch, pointed to his recent concurrence in Shurtleff v. Boston, where he adopted Becket’s proposal for Lemon’s replacement: a standard rooted in the history and tradition of the Establishment Clause. 

Coach Kennedy was represented by First Liberty Institute, Paul Clement and Erin Murphy (now of Clement & Murphy PLLC), Spencer Fane LLP, and The Helsdon Law Firm, PLLC.  

Photo credit: First Liberty Institute

Chung v. Washington Interscholastic Activities Association

Meet the Chungs: Star athletes, faithful to their Sabbath

Joelle and Joseph Chung are siblings, avid tennis players, and active members of the Seventh-day Adventist Church in their hometown, Chehalis, Washington. As faithful Adventists, Joelle and Joseph observe the Sabbath, a biblically-ordained practice of devoting time to rest, prayer and collective worship, every week from Friday at sundown to Saturday at sundown. The Chung family take their faith very seriously. Joelle even missed her own high school graduation because it fell on a Saturday. Joelle and Joseph became tennis players because they knew that the sport was primarily played on the weekdays, so it would not interfere with their religious observance.

Joelle was a top athlete on her high school’s girls’ tennis team for four years before graduating in 2019. Joseph is a current high school student and is already a star player on the boys’ tennis team as a sophomore. The Chungs are talented and dedicated tennis players, but a discriminatory rule has kept them from playing the sport they love because of their beliefs.

Kept off the court for their faith

Every year the Washington Interscholastic Activities Association (WIAA), the organization authorized under Washington law to regulate high-school sports in Washington, holds a state-wide postseason tennis tournament. To advance to the State Championships, players must compete in two qualifying tournaments. Throughout Joelle’s high school tennis career, the WIAA required participants to certify that they would be able to participate in each level of the tournament to qualify for the championships, with exceptions for injuries, illness, and “unforeseen events.”

In her junior year, Joelle won the first qualifying tournament leading up to the State Championships but had to forfeit her spot to an alternate because the next round conflicted with the Sabbath. In 2019, her senior season, Joelle was undefeated and expected to win in the qualifying tournaments and advance to the State Championships. Yet the State Championships were scheduled on a Friday and Saturday. According to WIAA rules, she was disqualified from playing the entire postseason.

Hoping to reach a compromise, the Chung family contacted the WIAA months in advance, asking for a religious accommodation. The Chungs asked the WIAA to move the State Championships to a weekday or simply allow Joelle to participate in the qualifying tournaments and use an alternate for the championships, just like athletes with injuries or illness can. Of course, it was entirely hypothetical that a replacement would be needed, depending on whether Joelle advanced to the championships. The WIAA flatly denied their requests, forcing Joelle to give up her chances in the tournament.

Defending the right to play while keeping the faith

No student-athlete should be barred from experiencing the excitement of competition and the opportunity to advance to the top of their field because of discriminatory standards. With Becket’s help, the Chung family sued the WIAA, asking that the rule be changed so that all students, including students of faith, can fully participate. The boys’ state tennis postseason begins in October so, Becket asked the WIAA to change its discriminatory rule before then so that Joseph and other students whose faith compels them to keep the Sabbath on Saturday can participate on equal terms with other students.

On August 27, 2019 the WIAA added religious observance to the list of exceptions allowing a player to withdraw from competition without being penalized. But this rule change is only a partial victory because the WIAA continues to insist that it cannot adjust the schedule of the tournament to accommodate religious observance, even if one of the remaining contenders has a Sabbath conflict.

The Chungs moved for summary judgment in September 2020, but the court decided to send the case to trial. Because WIAA had already changed the rule excluding them from postseason play, our clients agreed to settle as long as WIAA would agree to keep in place its amended rule allowing Saturday Sabbath observers to play in the postseason up until they run into an actual Sabbath conflict. A settlement agreement was reached and approved by the court on September 3, 2021. On September 21, 2021, the court granted the parties’ motion to dismiss, formally ending the case.

Importance to Religious Liberty:

  • Individual Freedom—In a pluralistic society, organizations have an obligation to make reasonable accommodations to ensure Americans of all faiths can participate fully in society. No American should unnecessarily be forced to choose between participating in public life and living out their sincere religious beliefs. Organizations especially cannot make secular exceptions to their rules and regulations and then claim that religious exceptions cannot be allowed.

Pacific Lutheran University v. SEIU Local 925

Pacific Lutheran University is a private university in Tacoma, Washington offering undergraduate and graduate studies in a liberal arts environment. It is committed to “diversity, justice, and sustainability,” and at the same time, fosters a proud Lutheran tradition.

But Pacific Lutheran had to fight to maintain autonomy as a religious university. In 2013, the Service Employees International Union (SEIU) tried to unionize non-tenured professors at the University, even though until then religious universities had been exempt from unionization in order to preserve church-state separation. SEIU claimed that Pacific Lutheran was not “sufficiently religious” to qualify for the exemption and therefore was subject to labor laws enforced by the National Labor Relations Board (NLRB).

Represented by Gordon Thomas Honeywell LLP, Pacific Lutheran appealed an initial regulatory decision against it to the NLRB, emphasizing its status as a religious university, and that as a religious university it is up to Pacific Lutheran to make decisions about employees’ status based on its religious mission. Otherwise Pacific Lutheran risked losing its independent authority to guide practices for its adjunct professors, which is crucial to promoting faith-based values. In a religious university like Pacific Lutheran, teachers are expected to reflect their institution’s faith, and the law must reflect — and protect — that reality.

Becket filed a friend-of-the-court brief in support of Pacific Lutheran arguing that the First Amendment principle of church autonomy as recognized in cases like Becket’s Supreme Court case Hosanna-Tabor meant that the NLRB could not oversee unionization contests within religious universities.

Despite these arguments, the NLRB ruled against Pacific Lutheran saying that adjunct professors do not overtly perform a religious function and therefore fall under NLRB jurisdiction. The decision also claimed that an institution must prove its religious affiliation, and the religious roles played by employees, before asserting the exemption. This decision was tantamount to a complete reversal of the Board’s former policy, which provided broad latitude to churches and other religious employers.

After the NLRB issued its decision—which is binding nationwide—SEIU withdrew its unionization petition, meaning that the NLRB’s change in policy narrowing the religious exemption could not be tested in a higher court. Since then, unionization efforts have begun at a number of religious (primarily Catholic) universities across the country.

Ingersoll v. Arlene’s Flowers

Meet Barronelle Stutzman, a floral artist and faithful Christian

For nearly forty years, Barronelle Stutzman has run Arlene’s Flowers, creating custom floral arrangements in the small town of Richland, Washington. As a Christian, she believes her creativity is a gift, and she uses that gift to honor God in her life’s work. As an artist, she enjoys helping her customers celebrate their life events and over the years has come to know many of them as friends.

For nine years Barronelle joyfully served long-time customer and friend Rob Ingersoll, designing custom arrangements for birthdays, Valentine’s Day and other holidays that he celebrated with his partner Curt Freed. In 2013 Rob asked Barronelle to do the flowers for his wedding. Although Barronelle has hired and served gay customers in the past with arrangements for other celebrations, she could not create something for a ceremony that violated her beliefs. She took Rob’s hands and told him with tears in her eyes that she values his friendship but could not participate in his wedding because of her faith. He told her he understood, and another florist quickly provided their wedding’s floral arrangements for free.

Washington Attorney General and ACLU sue Barronelle because of her beliefs

Barronelle was soon sued by the state’s Attorney General and the ACLU. In 2015, a state court ruled that Barronelle was personally liable for Rob Ingersoll’s $8 dollars in damages as well as his attorney’s fees, which means that she could lose her business, her home, and her life savings.

The Washington Supreme Court heard oral argument in Barronelle’s case in November 2016. Becket filed an amicus brief in February 2016 supporting Barronelle, who is represented by the Alliance Defending Freedom. Other groups supporting Barronelle include the National Hispanic Christian Leadership Conference, the Coalition of African American Pastors USA, the National Association of Evangelicals, the Cato Institute, 27 law professors, and 13 states. In February 2017, the Washington Supreme Court ruled against Barronelle.

Becket defends people of faith from government hostility 

In August 2017, Becket filed a friend-of-the-court brief asking the Supreme Court to hear the case in tandem with the Masterpiece Cakeshop case. In June 2018, the U.S. Supreme Court ruled in favor of Masterpiece Cakeshop, and remanded Barronelle’s case back to the Washington Supreme Court. In March 5, 2019, Becket filed a friend-of-the-court brief at the Washington Supreme Court, arguing that state acted with religious hostility against Barronelle, in violation of her First Amendment rights, and that the Masterpiece Cakeshop decision requires the government to allow religious individuals to freely practice their faith.

On June 6, 2019, the Washington Supreme Court ruled against Barronelle Stutzman. On September 11, 2019, Barronelle appealed to the U.S. Supreme Court.


Importance to religious liberty

  • Individual freedom: Religious freedom protects the rights of individuals to observe their faith at all times, including in the workplace. In this case, the government is forcing Barronelle to choose between her deeply held religious convictions and her livelihood.
  • Free speech: The First Amendment protects our right to speak freely on issues without fear of government censorship or punishment, even when, and especially when, that view is unpopular. In this case, Barronelle’s artistic expressions were a form of speech, and the government should not force her to create something that violates her religious beliefs.

Stormans v. Wiesman

Your job or your conscience: It’s a choice no American should have to make. But it’s a choice that led faithful family pharmacists all the way to the U.S. Supreme Court.

The Family behind the Pharmacy 

Margo Thelen, Rhonda Mesler, and the Stormans family have worked in the pharmacy profession for over 60 years. Because of their beliefs, they cannot sell the morning-after or week-after pills—both of which can potentially cause an abortion.

Instead, when a customer asks for one of these drugs, the pharmacists refer them to one of over 30 pharmacies within a five-mile radius that willingly offer these drugs. This referral process is approved by the American Pharmacists Association and has long been legal in all 50 states.

Government Coercion 

But in 2005, abortion-rights activists rewrote the rules in Washington state. Although the state pharmacy commission had long supported the right of conscience, Governor Christine Gregoire opposed conscience rights. She publicly threatened to disband the commission, appointed several new members recommended by abortion rights activists, and asked those activists to write a new regulation. Buckling under pressure, the commission adopted a new regulation requiring pharmacies to sell the morning-after and week-after pills in violation of their religious beliefs.

The new regulation allows pharmacies to refer patients elsewhere for a wide variety of business, economic, and convenience reasons—such as a when a drug is unprofitable, attracts an undesirable clientele, or falls outside the pharmacy’s chosen business niche. But it forbids referral for one—and only one—reason: conscience. The commission adopted the regulation even though it admitted that no one in the state has ever been denied timely access to any drug because of a conscience-based referral.

Defending Conscience 

Because of the regulation, Margo was fired from her pharmacy, Rhonda was threatened with firing, and the Stormans family was placed under investigation and threatened with the loss of their pharmacy license. In July 2007, Margo, Rhonda, and the Stormans family sued to stop the regulation. In February 2012, after a 12-day trial, a federal court ruled the regulation unconstitutional. The court concluded that the commission’s rules intentionally discriminated against people of faith like Margo, Rhonda, and the Stormans’.

The State appealed to the Ninth Circuit Court of Appeals, which in July 2015 ruled against the pharmacists’ right of conscience. Then came the Supreme Court appeal. Represented by Becket, Alliance Defending Freedom, and leading scholar Michael McConnell, the pharmacists needed the votes of four Justices to hear their case. Yet just weeks after they appealed, Justice Scalia died, leaving the Court short one member. Their appeal received three votes—one shy of what was needed.

Although the missing vote ended the case, the three dissenting Justices noted that the pharmacists can still challenge the discriminatory regulations again in the future, if the state attempts to punish them. Margo, Rhonda, and the Stormans family remain committed to their faith, and Becket remains ready to defend them.

Locke v. Davey

The Supreme Court held that the State of Washington did not violate the First Amendment’s Free Exercise Clause by forbidding the use of state-funded scholarship money to receive degrees in devotional theology.

Chief Justice Rehnquist’s majority opinion took note of Becket’s brief, which highlighted the anti-Catholic bigotry behind state Blaine Amendments.  (State Blaine Amendments prohibit the use of state funds to support religious institutions such as parochial schools.)  The Court concluded that the relevant Washington state constitutional provision (which also forbade the use of tax funds to support ministers) was not sufficiently related to the Blaine Amendment so its anti-religious history was not implicated in this case. American Center for Law and Justice was counsel in this case.