Update to SCOTUS Watch: An Activist Radical Republican Court Detached From The Majority Of America (excerpt):
[Last] Monday, the U.S. Supreme Court issued the first of its “major” decisions remaining on the watch list, Carson v. Makin. This case was a challenge to the constitutionality of a Maine program that pays tuition for some students to attend private schools when their own school district does not operate a public secondary school.
This case is the logical finale of the “holy trinity” (pun intended) with two earlier so-called “religious liberty” cases, Trinity Lutheran v. Comer, and Espinoza v. Montana Department of Revenue, that began tearing down the wall of separation beteen church and state. As I posted earlier, the Radical Republican Supreme Court Tears Down What Remained Of The Wall of Separation And Church And State.
Chief Justice Roberts has essentially read the establishment clause out of the First Amendment, and formulates a radical vision of the free exercise clause. The Christian Nationalists on the U.S. Supreme Court (curiously all of them Catholics, not evangelicals) are laying a foundation for a White Christian Nationalist America that the Founding Fathers sought to prevent with the First Amendment, given their recent experience with centuries od sectarian religious wars in Europe.
The establishent clause is an impediment to their theocratic White Christian America, so it has to go.
This Monday was Justice “Stolen Seat” Neil Gorsuch’s turn to write the establishment out of the First Amendment, and formulates a radical vision of the free exercise clause. This is the so-called “praying coach” case. Kennedy v. Bremerton School District.
Amy Howe at SCOTUSblog reports, Justices side with high school football coach who prayed on the field with students :
The Supreme Court on Monday ruled in favor of a high school football coach who lost his job because of his post-game prayers at the 50-yard line. By a vote of 6-3, the justices ruled that Joseph Kennedy’s conduct was protected by the First Amendment. The court rejected the school district’s argument that allowing Kennedy’s prayers to continue would have violated the Constitution’s establishment clause, which bars the government from both establishing an official religion and preferring one religion over another.
The decision by Justice Neil Gorsuch, which was joined in full by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett, and for the most part by Justice Brett Kavanaugh, was the second major ruling on religion and schools in less than a week. On June 21, in Carson v. Makin, the court struck down — again by a vote of 6-3 — a Maine law that banned the use of public funds for students to use at private schools that provide religious instruction.
In 2015, Kennedy had been a part-time coach at Bremerton High School, a public school in Washington state, for seven years. During that time, he would pray at midfield after each game – first alone, but later with players and even some members of the opposing team joining him. When the school district learned about Kennedy’s prayers in September 2015, it expressed disapproval, and Kennedy briefly stopped his prayers.
On Oct. 14, 2015, Kennedy notified the school district that he intended to resume his prayers at the next game. After a scene that the school district describes as chaotic, with spectators and reporters knocking down members of the band in an effort to join Kennedy at midfield, the school district told him that his prayers violated the district’s policy [insubordination], and it offered him other options to pray – for example, after the crowd had left. But Kennedy continued to pray at the next two games, prompting the school district to place him on administrative leave and, eventually, decline to renew his contract for the following season.
Kennedy went to federal district court, where he argued that the school district’s actions had violated his rights under the free speech and free exercise clauses of the Constitution. The lower courts ruled for the school district, but on Monday the justices reversed that ruling. In a 32-page decision, Gorsuch explained that the government’s only real justification for its decision to fire Kennedy “rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution,” Gorsuch concluded, “neither mandates nor tolerates that kind of discrimination.”
As they did last week in Carson, the court’s three liberal justices dissented. In an opinion that was joined by Justices Stephen Breyer and Elena Kagan, Justice Sonia Sotomayor complained that the Supreme Court “has consistently recognized that school officials leading prayer is constitutionally impermissible.” Monday’s ruling, she observed, “charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”
Today, the Supreme Court ruled in favor of a public school football coach who prayed with his players after games.
This is a serious blow to the long-held principle that students have the religious liberty right to be free from school-sponsored prayer.
— ACLU (@ACLU) June 27, 2022
Over 60 years ago, the Supreme Court recognized that it is inherently coercive for school officials to lead students in prayer while on duty.
Today’s ruling ignores that basic principle, significantly eroding the separation of church and state in public schools.
— ACLU (@ACLU) June 27, 2022
This series of so-called “religious liberty” caes are really laying the groundwork for the establishment of a national religion. With these latest decisions, expect to see a legal challenge filed to the Court’s precedent barring prayer in public schools seeking to overturn yet another longstanding precedent. In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court ruled that school-sponsored prayer in public schools violated the establishment clause of the First Amendment.
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Ian Mihiser writes, “The Supreme Court hands the religious right a big victory by lying about the facts of a case”, https://www.vox.com/2022/6/27/23184848/supreme-court-kennedy-bremerton-school-football-coach-prayer-neil-gorsuch
Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”
Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.
The Court’s decision to explicitly overrule Lemon v. Kurtzman, the 1971 decision that previously governed cases involving the Constitution’s language prohibiting “an establishment of religion,” has obvious implications for future lawsuits: Lower court judges will no longer apply Lemon’s framework to establishment clause cases.
But it’s not clear how those lower court judges should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.
If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students.
Gorsuch’s opinion, however, describes a very different case than the one that was actually before the Court.
In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.
After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”
When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.
But Kennedy also went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.
At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “stampede,” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.
And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion.
Gorsuch dismisses this photographic evidence by claiming that “not a single Bremerton student joined Mr. Kennedy’s quiet prayers” after this game — he claims that the players depicted in this photograph are “from the opposing team.”
Whether those players are from the Bremerton school district or not, that doesn’t change the fact that Kennedy engaged in very public prayer sessions, and did so while acting as an official representative of a public school. Nor does it change the fact that, after he was ordered to cease this activity, Kennedy went on a media tour that seemed designed to turn his supposedly “quiet prayers” into a public political spectacle, a spectacle that both players and spectators eagerly participated in.
The Lemon case, which the Court overruled in Kennedy, held that the government’s actions “must have a secular legislative purpose,” that their “principal or primary effect must be one that neither advances nor inhibits religion,” and that the government may not “foster ‘an excessive government entanglement with religion.’”
A public school official conducting a very public prayer during the course of his official duties as a government employee clearly violates this Lemon test.
Lemon was handed down in a different era, when the Court insisted that the government must remain neutral on questions of religion. Just last week, however, in a case about government funding of religious education, the Supreme Court disparaged such calls for neutrality — even holding that laws which deny funding to religious institutions in order to maintain the government’s neutrality on matters of religion are unconstitutional.
So, in light of that and similar decisions, it’s hardly a surprise that the Court’s new majority decided to overrule Lemon. Indeed, in a line that adds to the many falsehoods in Gorsuch’s opinion, he inaccurately claims that the Court “long ago abandoned Lemon.” Gorsuch also criticizes Lemon because it allegedly “led to ‘differing results’ in materially identical cases.”
Even now that Lemon is overruled, however, the Court’s decision in Lee v. Weisman (1992), which prohibits public schools from coercing students into religious exercise, should have prohibited Kennedy’s actions.
In Lee, a public middle school invited a rabbi to open and close its graduation ceremony with prayers. The Court held that these prayers imposed subtle pressure on students to join a religious ceremony, and therefore were not allowed.
“The undeniable fact,” Justice Anthony Kennedy wrote in that decision, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”
Kennedy’s prayer sessions were, if anything, more coercive than the ceremonial prayers offered in Lee. A graduation ceremony, by its very nature, marks the end of a public school’s ability to wield coercive power over its departing students. Kennedy, by contrast, wielded ongoing authority over his students when he conducted his prayer sessions. Students who joined those sessions might hope to ingratiate themselves to their coach and gain more playing time and other perks as a result. Students who refused to participate might have feared antagonizing their coach — and losing playing time, a potential college recommendation letter, or a promotion from the junior varsity team to the varsity squad as a result. (Kennedy served as both the head coach of the JV team and an assistant coach on the varsity team.)
To this, Gorsuch claims that there is “no indication in the record that anyone expressed any coercion concerns to the District.” Even if that were true, it would not obviate the fact that teachers and students wield considerable coercive authority over their students, and that students understandably may be reluctant to complain about a teacher or coach for this reason.
Gorsuch also claims that Kennedy was merely acting as a private citizen, and not as a public school employee, when he prayed at the 50-yard line. The school district, Gorsuch repeatedly notes, permitted coaches to take “a private moment” after each game “to call home, check a text, socialize, or engage in any manner of secular activities.” Thus, a coach who wants to spend this moment of free time quietly praying should be allowed to do so.
Again, if the facts of this case resembled the false facts laid out in Gorsuch’s opinion, then Gorsuch would have a point. Public school employees may engage in private acts of devotion, such as saying a prayer over their lunch in a school cafeteria while they are on the job.
But there’s nothing private about a school employee conducting a media tour touting his plans to pray at the 50-yard line of a football field immediately after a game. There is nothing private about the coach carrying out that plan — especially when he does so surrounded by kneeling players, cameras, and members of the public.
In any event, while Gorsuch’s opinion does overrule Lemon, it does not purport to overrule Lee. And, as explained above, Lee permits public school employees to engage in the kind of private, quiet prayer that Gorsuch falsely claims Kennedy engaged in after football games.
That means that the doctrinal implications of Gorsuch’s Kennedy opinion on future cases in which public school employees coerce their students into religious exercise are far from clear.
Kennedy will no doubt inspire other teachers and coaches to behave similarly to Coach Kennedy, but those teachers and coaches will do so at their own peril. Gorsuch’s opinion doesn’t weigh whether a coach is allowed to do what Kennedy actually did. That remains an open question, because the Court did not actually decide that case.