By lying about the facts..

The Supreme Court hands the religious right a big victory by lying about the facts of a case

Kennedy v. Bremerton School District is a big victory for the religious right, but only because Gorsuch misrepresents the facts of the case.

By Ian Millhiser

The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling a 1971 case laying out how the government must keep its distance from religion.

But 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.”

(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)

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.

Coach Kennedy engaged in very public prayer

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. If Gorsuch had held that the Constitution permits Kennedy to do what he actually did, then that would be a hugely consequential decision that would gut the Court’s previous decision in Lee.

But, because Gorsuch paints such a misleading picture, involving a coach who offered a “short, private, personal prayer,” the more limited holding of Kennedy is that this hypothetical activity is allowed. And, again, Lee already permits public school employees to engage in private, personal prayers.

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.