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Greetings, Court Fans!

On the penultimateday of OT21, the Court handed down two more decisions:

• Oklahoma v. Castro-Huerta (No. 21-429), holding that the federal and state governments have concurrent jurisdiction to prosecute crimes committed by non-Indians in Indian country; and
• Torres v. Texas Dep’t of Public Safety (No. 20-603), holding that states cannot invoke sovereign immunity against lawsuits under a federal law permitting veterans to sue to reclaim the state jobs they left when deployed.

That leaves two more for tomorrow, which the Court has announced will be the final opinion day of the term. While we digest this morning’s decisions, read on for our regurgitations of two of Monday’s: Kennedy v. Bremerton School District (No. 21-418), holding that the Free Exercise and Free Speech Clauses of the First Amendment protected a public high school football coach from being disciplined for kneeling in prayer after games; and Concepcion v. United States (No. 20-1650), holding that the First Step Act allows district judges to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.

Let’s start with Kennedy, a significant First Amendment decision that continues the Court’s trend (discussed as recently as last week) of elevating the Free Speech and Free Exercises clauses over the Establishment Clause, while pausing to finally announce that Lemon v. Kurtzman (1971)—the oft-derided bogeyman of Establishment Clause jurisprudence—is overruled.

Though this case has been in the news for years (the Court denied cert once before when it came up on a preliminary injunction), there’s still remarkable disagreement among commentators—and the Justices themselves—about the facts (or at least the facts that matter). Joseph Kennedy was hired by Bremerton School District as an assistant high-school football coach in 2008. As a new coach, he initially continued a “school tradition” of facilitating pregame or postgame prayers in the locker room. He also began kneeling by himself at the 50-yard line to pray immediately after shaking hands with the opposing team. Soon enough, players began joining him in prayer (though Kennedy insisted he had not required or encouraged them to do so), and Kennedy began (at least sometimes) including motivational speeches that blended with his own prayer.

This practice continued for over seven years without complaint. Then, in September 2015, a coach from another team mentioned to Bremerton’s principal that he’d been invited to join Kennedy and his team in prayer and 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.” This prompted the District to inquire whether Kennedy’s practice violated its policy on Religious-Related Activities and Practices. The District was concerned in large part (according to the majority, exclusively) that Kennedy’s practices could subject it to liability for violating the Establishment Clause. After the District confronted him, Kennedy agreed to stop leading prayers in the locker room and including religious references in his post-game motivational speeches. He also (initially) stopped kneeling in prayer at the 50-yard line. But driving home after one game, he felt upset that he’d “broken [his] commitment to God” and therefore turned around and drove back to the empty stadium to kneel and pray. He also hired a lawyer.

Through counsel, Kennedy informed the District that his “sincerely-held religious beliefs” “compelled” him to offer a “post-game personal prayer” of thanks at midfield. He insisted that he “neither requests, nor encourages, nor discourages students from participating in” these prayers alongside him, but argued that the District’s requirement that he not engage in “demonstrative” prayer in the vicinity of students effectively required him to “flee the scene if students voluntarily [came] to the same area” where he was praying. (Later on, in a deposition, Kennedy indicated that he would be satisfied if he were permitted to pray at midfield while the players were on their way to the locker room or the bus, but it does not appear that he offered that alternative in his pre-suit communications with the District.) He informed the District that he would be kneeling in prayer after the team’s homecoming game on October 16th. (He also informed the press.) The District responded shortly before the game that Kennedy was forbidden from engaging in “overt actions” that would “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.”

Kennedy then proceeded to kneel in prayer, in violation of the District’s directives, at three consecutive football games. After the October 16th homecoming game, he began to pray alone while his players were singing the school’s fight song to the crowd, but was soon joined by players from the opposing team and members of the community (and a bunch of news cameras). The District remained concerned, both that the prayer “drew [Kennedy] away from [his] work” supervising students after the game, and that “any reasonable observer saw a District employee, on the field 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.” It invited Kennedy to suggest accommodations that would not raise these Establishment Clause concerns, but warned him that “further violations of [its] directives” would be grounds for discipline or termination. In response, Kennedy’s attorney announced to the media that he would continue kneeling at half field. After the October 23rd game, Kennedy knelt alone and was not joined by students. After the October 26th game, Kennedy again knelt in prayer, but this time was joined by members of the public, including politicians who supported him. Following this last incident, the District placed Kennedy on paid leave for violating its directives and engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” on October 16th, 23rd, and 26th. (It did not discipline him for his conduct after earlier games.) Later, the school’s head coach recommended that Kennedy not be rehired because he had “failed to follow district policy” and “failed to supervise student-athletes after games.”

Kennedy sued in federal court, first seeking a preliminary injunction reinstating him. The District Court denied that request and, after the Ninth Circuit affirmed, Kennedy sought certiorari. The Supreme Court denied cert, but Justice Alito wrote separately to express concerns about the potential ramifications of the lower courts’ decisions, which suggested that teachers could be prohibited from engaging in any “demonstrative” conduct of a religious nature in the presence of students, including “folding their hands or bowing their heads in prayer” before lunch. After the case returned to the District Court, the parties engaged in discovery and cross-moved for summary judgment. The District Court concluded that the “sole reason” for the District’s decision to suspend Kennedy was the “risk of constitutional liability” under the Establishment Clause, and that this reason was sufficiently compelling to warrant the suspension, notwithstanding Kennedy’s competing speech and free-exercise rights. The Ninth Circuit affirmed, agreeing that Kennedy’s conduct could appear to a reasonable observer to be an official endorsement of religion by the District, and therefore could subject the District to liability for violating the Establishment Clause.

The Supreme Court reversed, 6-3. As noted, the majority’s decision turned heavily on a construction of the facts that the dissent felt lacked context. In his opinion for the Court, Justice Gorsuch stressed that Kennedy had lost his job “because he knelt at midfield after games to offer a quiet prayer of thanks . . . quietly while his students were otherwise occupied.” Kennedy had already agreed to stop leading prayers in the locker room and to remove religious references from any post-game motivational speeches and simply wished to offer his own prayer of thanks on the field after games, at a time when he and other coaches were free to conduct other personal activities, like visiting with friends or checking their emails. He did not pressure or encourage others to join him; though he didn’t discourage them, either. The District, moreover, had by its own admission disciplined Kennedy solely because it was concerned that his continuing to kneel in prayer in a “demonstrative” manner would be seen as an official endorsement of religion and therefore violate the Establishment Clause. Seen through this lens, Justice Gorsuch had little difficulty concluding that the District’s treatment of Kennedy violated the Free Exercise and Free Speech Clauses, and was not justified by its (unfounded) fear that failing to discipline him would amount to an Establishment Clause violation. Kennedy satisfied his initial burden of establishing that his Free Exercise and Free Speech rights were infringed.

Under the Free Exercise Clause, there was essentially no dispute that Kennedy wished to engage in a sincerely motivated religious exercise—giving “thanks through prayer,” briefly and by himself “on the playing field” at the conclusion of each game he coached. He had made clear that his religious beliefs did not require him to lead any prayers involving students and the District admitted that it only disciplined him for his decision to persist in praying on his own after the three games in October (though it believed the earlier context was relevant). Moreover, the District conceded that its policy was not “neutral” or “generally applicable.” (Coaches were not prohibited from engaging in other, nonreligious speech or conduct after games and were not expected to devote their full attention to supervising students.) Therefore, the policy would be subject to strict scrutiny and could only be justified if it was the narrowest means of achieving a compelling interest. 

With respect to speech, Gorsuch found that Kennedy had satisfied his initial burden under the Court’s precedents governing speech by public employees. No one disputed that Kennedy’s speech implicated a matter of public concern and, Gorsuch found, he was speaking in his capacity as a private citizen, not in his capacity as a public employee. To justify this finding (which certainly was disputed), Gorsuch noted that Kennedy was not “instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.” Instead, he was expressing his own views during a period of time after games in which he and other coaches were permitted to enjoy “a private moment after the game to call home, check a text, socialize or engage in any manner of secular activities.” Because Kennedy’s job description permitted him to do those secular activities, his religious activities were also personal, and not official.

Justice Gorsuch then turned to the District’s burden, under both the Free Exercise and Free Speech Clauses, of justifying its infringement on Kennedy’s rights. Here, he stressed again that “the only reason” the District proffered for disciplining Kennedy was its desire to avoid violating the Establishment Clause. But Gorsuch rejected this concern entirely. The mere fact that a public employee engages in demonstrative religious speech or conduct does not mean that the government itself endorses that religious activity (particularly here, where it was obvious that the District did not want Kennedy to continue his religious activities). The lower courts, Gorsuch reasoned, had gotten this wrong because they relied on the much maligned Lemon test, which calls for an examination of a law or policy’s purposes, effects, and potential for entanglement with religion. But, Gorsuch reasoned (in what must have been news to the Westlaw flaggers), “this Court long ago abandoned Lemon and its endorsement test offshoot.” Instead, the Establishment Clause “must be interpreted by reference to historical practices and understandings.”

Justice Gorsuch allowed that even under this “historical practices” view, religious coercion may still violate the Establishment Clause. But he maintained that the record revealed no such coercion in this case. While it is true that Kennedy led students in prayer for many years before and after games, he was only disciplined for his conduct after the three games in October 2015, when he only sought to kneel in quiet prayer by himself and was not joined by his players. And although some parents had told District employees that their sons had participated in the prayers “only because they did not wish to separate themselves from the team,” it was not clear that they were referring to the October prayers, as opposed to the more problematic earlier prayers. In sum, Gorsuch concluded, a school district cannot suppress religious liberty in the name of protecting it. Where free-speech or free-exercise rights are at issue, the Establishment Clause is not a trump card.

Gorsuch’s opinion was joined in full by the Chief and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Thomas wrote separately to note that the Court’s opinion did not resolve open questions about whether public employees’ free-exercise rights should be treated like their free-speech rights (i.e., with fewer protections). And Justice Alito (who first expressed concerns about this case when the Court denied cert the first time), wrote separately to underscore his understanding that Kennedy’s speech was private because it occurred “at a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities.”

Justice Sotomayor wrote a pointed dissent, joined by Breyer and Kagan. In her view, the majority had completely mischaracterized what this case was about by ignoring the context surrounding Kennedy’s conduct. “To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet,” she wrote, “it misconstrues the facts.” Instead, the record revealed that Kennedy had a longstanding practice of leading prayers on and off the field, often standing with a helmet aloft while players knelt around him. Using photographs from the record, Sotomayor painted a picture of Kennedy as a willful renegade, who refused reasonable attempts to accommodate his religious beliefs and insisted on engaging in conduct that—given his history—would likely be seen as encouraging, if not coercing, prayer by players, all while courting media attention for his crusade. Though she conceded that the District had disciplined Kennedy only based on the three October games, she argued that the majority erred by “assessing them divorced from the context and history of Kennedy’s prayer practice,” and the serious disruptions it caused. Given the surrounding context, Sotomayor concluded that the District would indeed have violated the Establishment Clause by allowing Kennedy’s prayers to continue, and therefore had ample justification for its actions.

In addition to faulting the majority for ignoring important factual context, Sotomayor called them out for overruling Lemon in passing and replacing it with a “history and tradition” that it utterly fails to explain. Alluding to the dissents in Dobbs and other cases this term, Sotomayor noted that “[t]he problems with elevating history and tradition over purpose and precedent are well documented.” At a minimum, she wrote, “the Court’s history-and-tradition test offers essentially no guidance for school administrators.” Closing, Justice Sotomayor stressed that “[t]he Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society.” The Court’s decision, she maintained “elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”

Though bitterly divided in Kennedy, Justices Sotomayor and Gorsuch were on the same side in Concepcion v. United States (No. 20-1650), which resolved a Circuit split over how to interpret the First Step Act of 2018. The Circuits have variously held that the Act permits, prohibits, or requires district courts to consider intervening changes to fact or law when considering whether to reduce a prisoner’s sentence under the First Step Act. By a 5-4 vote (with Gorsuch and Thomas joining the liberals), the Court held that district judges may consider such changes, though they are not required to. 

As you may recall, the First Step Act was a significant, and bipartisan, criminal-justice reform bill signed by President Trump. Among other things, it continued the effort to correct the wide disparity between crack and powder cocaine in drug sentencing, which began with the Fair Sentencing Act of 2010. While the Fair Sentencing Act addressed that disparity, it did not apply retroactively. The First Step Act addresses this by permitting district courts to “impose a reduced sentence” on defendants serving sentences for certain crack-cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.”

Carlos Concepcion attempted to take advantage of the First Step Act’s resentencing provision. He’d been convicted of distributing five or more grams of crack in 2007 and sentenced in 2009 to 19 years (228 months) in prison. His sentencing guidelines range was affected both by the crack–powder disparity and the fact that he qualified as a “career offender.” (For that reason, he was also not eligible for resentencing when the Guidelines were amended in 2011 to make the lower ranges of the Fair Sentencing Act retroactive for certain defendants.) Concepcion filed a pro se motion for resentencing. The Government acknowledged that Concepcion was eligible for relief under the First Step Act because it modified the statutory penalties that informed his Guidelines range, but urged the district court not to resentence him because his 228-month sentence still fell within the modified Guidelines range of 188 to 235 months. In reply, Concepcion (now represented by counsel) argued that, in fact, his modified range would be lower because he was no longer a career offender because one of his prior offenses had been vacated. He also pointed to evidence of rehabilitation since his original sentence. The District Court concluded that the First Step Act did not permit consideration of these post-sentencing developments and declined to reduce Concepcion’s sentence. The First Circuit affirmed, deepening a split among the Circuits as to whether a district court must, may, or may not consider intervening changes of law or fact.

The Supreme Court resolved that split in favor of Concepcion, and of district judges exercising discretion over whether to consider intervening changes. Writing for the Court, Justice Sotomayor noted that federal courts have historically exercised broad discretion to consider any factor they wish unless the Constitution or a statute limits their discretion. This applies not only to initial sentencings, but also sentencing modifications. While Congress has limited this discretion in some statutes, the First Step Act is not one of them. The text of the Act “does not so much as hint” that district courts are prohibited from considering evidence of rehabilitation (or disciplinary infractions), Guidelines changes, or other developments in the law. Its only limitations are that a district court may not consider a First Step Act motion if the movant’s sentence was already reduced under the Fair Sentencing Act, or if the court has already considered and rejected an earlier First Step Act motion. Neither of those limitations applied in Concepcion’s case, so the District Court was wrong not to consider evidence of his rehabilitation (and also competing evidence of disciplinary problems) as well as changes in his legal status as a career offender.

Justice Kavanaugh dissented, joined by the Chief, Alito, and Barrett. In his view, “[t]he text of the First Step Act authorizes district courts to reduce sentences based only on changes to the crack-cocaine sentencing ranges, not based on other unrelated changes that have occurred since the original sentencing.” District courts should answer just one question: “What would the offender’s sentence have been if the lower crack-cocaine sentencing ranges had been in effect back at the time of the original sentencing?” Here, it was likely that Concepcion’s sentence would have been no different, because it was heavily impacted by the career-offender guideline. While a later amendment to the Sentencing Guidelines may have eliminated his career-offender designation, that amendment was expressly not retroactive. In Kavanaugh’s view, therefore, the Court had effectively created new inequities and disparities by permitting defendants like Concepcion (a career offender sentenced for crack) to get reduced sentences while others (career offenders whose sentences were not affected by the Fair Sentencing Act) cannot.

With that, we’ll sign off for the day. But we’ll be back again tomorrow with news of the last decisions of the term.

Tadhg and Dave