June 27, 2022

"In the end, the [School] District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties..."

"... and then develop some explanation why one of these Clauses in the First Amendment should '"trum[p]"' the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the 'mere shadow' of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a [football] field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal 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 neither mandates nor tolerates that kind of discrimination."

From Kennedy v. Bremerton School District, announced just now, written by Justice Gorsuch and joined by the 5 Justices most likely to join Gorsuch.

Justice Thomas concurs to note 2 things that the Court did not decide: 1. "whether or how public employees’ rights under the Free Exercise Clause may or may not be different from [the speech rights] enjoyed by the general public," and 2. "what burden a government employer must shoulder to justify restricting an employee’s religious expression because the District had no constitutional basis for reprimanding Kennedy under any possibly applicable standard of scrutiny."

Justice Alito concurred to say that this case is different from other cases about the free-speech rights of public employees: "Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities."

Justice Sotomayor dissents, joined by Justices Breyer and Kagan. She says: "The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971)." Is anyone keeping count of how many times the Court has "overruled Lemon"? Has a case ever been "overruled" so many times and still lived on?

It was all the way back in 1993 that Justice Scalia wrote:
As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. ----, ---- (1992) (slip op., at 7), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. 
Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. See, e. g., Weisman, supra, at ---- (slip op., at 14) (Scalia, J., joined by, inter alios, Thomas, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-657 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O'Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985) (Rehnquist, J., dissenting); id., at 90-91 (White, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (White, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125, 134-135 (1977) (White, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 (1976) (White, J., concurring in judgment); Committee for Public Education & Religious Libertyv. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting).

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools--An Update, 75 Cal. L. Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980). I will decline to apply Lemon--whether it validates or invalidates the government action in question--and therefore cannot join the opinion of the Court today.

ADDED: Here's how Sotomayor depicts the facts:

[S]ince his hiring in 2008, Kennedy had been kneeling on the 50-yard line to pray immediately after shaking hands with the opposing team. Kennedy recounted that he initially prayed alone and that he never asked any student to join him. Over time, however, a majority of the team came to join him, with the numbers varying from game to game. Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him. Id., at 40.

She writes:

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so....

Given the twin Establishment Clause concerns of endorsement and coercion, it is unsurprising that the Court has consistently held integrating prayer into public school activities to be unconstitutional, including when student participation is not a formal requirement or prayer is silent....

The Court inaccurately implies that the courts below relied upon a rule that the Establishment Clause must al-ways “prevail” over the Free Exercise Clause.... The proper response where tension arises between the two Clauses is not to ignore it, which effectively silently elevates one party’s right above others. The proper response is to identify the tension and balance the interests based on a careful analysis of “whether [the] particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.” Walz, 397 U. S., at 669. 

In her balance, the Establishment Clause wins. 

[T]he Court claims that it “long ago abandoned” both the “endorsement test” and this Court’s decision in Lemon 403 U. S. 602. Ante, at 22. The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn., 588 U. S. ___ (2019) to support this contention. That plurality opinion, to be sure, criticized Lemon’s effort at establishing a “grand unified theory of the Establishment Clause” as poorly suited to the broad “array” of diverse establishment claims. All the Court in American Legion ultimately held, however, was that application of the Lemon test to “longstanding monuments, symbols, and practices” was ill-advised for reasons specific to those contexts.....

The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so. Lemon summarized “the cumulative criteria developed by the Court over many years” of experience “draw[ing] lines” as to when government engagement with religion violated the Establishment Clause. Lemon properly concluded that precedent generally directed consideration of whether the government action had a “secular legislative purpose,” whether its “principal or primary effect must be one that neither advances nor inhibits religion,” and whether in practice it “foster[s] ‘an excessive government entanglement with religion.’...

Neither the critiques of Lemon as setting out a dispositive test for all seasons nor the fact that the Court has not referred to Lemon in all situations support this Court’s decision to dismiss that precedent entirely, particularly in the school context....

Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection.

103 comments:

Joe Smith said...

The first Scalia paragraph about Lemon is terrific. Who says legal stuff has to be boring?

Mark said...

Will be interesting to see how people respond to Allah in the same context.

That said, it's probably the Satanic Church that is most excited about what doors this opens. They love public displays of religion.

Hunter Biden's tax payer funded Hooker said...

Soto-update.

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so....
OK?


What about woke religion? or Howard Zinn America-hate indoctrination? isn't that a religion too?

is this coach forcing anyone to join him?

Hunter Biden's tax payer funded Hooker said...

Scalia - delightful!

Michael K said...

The left is determined to "protect" children from religion. Drag queens not so much.

Rollo said...

Hmmm ... for law professors, SCOTUS week must be like the Superbowl, Christmas, and New Year's Eve all rolled up in one ...

Paul said...

Constitution says...

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It does not say government should be free of religion.. just you cannot limit it to one religion or another (like the UK's Church of England.) There is no real "separation of church and state" only the state cannot force one religion on the populace. The government should be benign to what the populace practice. Hence the schools cannot, should not, prohibit religion from school... it should make all religion expression legal.

If students, or school officials, want to pray before class... it is their right. It is FORCING PEOPLE TO DO THIS THAT IS AGAINST THE CONSTITUTION.

When I was in Junior High back in 1968 we had a bible verse over the PA system each morning before the first class. I should know, I once was selected to give the verse over the system. Sure it was King James Bible.. and I am Catholic.. but I didn't mind. If students wanted to bow their heads and pray... that was ok, if not, that was ok to.

Bob Boyd said...

When it comes to self-righteousness and intolerance, atheism will give any religion a run for its money.

Ice Nine said...

>Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer....<

Yeah, it was so "personal" that he just had to do it out in the middle of the field of a football stadium so that he could be sure to be seen doing it by hundreds of people. This is pure ostentatious religiosity - righteous virtue showboating.

Back when I was a young Sunday School-indoctrinated kid who thought that there was actually something on the receiving end, even I understood that one could quietly and personally pray to the Omniscient One by simply saying the prayer in one's mind - all without the need for posturing or for having an audience to my piety.

gspencer said...

Sotomayor - only wide, not wise.

iowan2 said...

I have always had a problem getting around "Congress shall make no law", vs the phony "Separation of church and State" Something NOT in the constitution.

I know, "incorporation", But "Congress shall make no law", is still 'The Law' despite incorporation. That concept has been terribly abused by SCOTUS, Once they figured out, it vastly increased their jurisdiction. (power corrupts)

HoodlumDoodlum said...

Mark said...
Will be interesting to see how people respond to Allah in the same context.


Amicus briefs supporting Kennedy were filed by the Jewish Coalition for Religious Liberty and The Islam and Religious Freedom Action group of the Religious Freedom Institute. I'll have to find it again but one of the briefs I read made the point that an observant Muslim teacher on a field trip might easily find themselves obliged to pray in front of students and should be neither prohibited nor punished for doing so.
The Court, at least, wouldn't have a problem with "Allah in the same context."

Narr said...

Isn't it in the Constitution: there shall be no wall between Football and religion?

Richard said...

Blogger Mark said...
Will be interesting to see how people respond to Allah in the same context.

It is only Leftists who think that we have to make sure that the "wrong people" don't get to exercise their constitutional rights.

Temujin said...

"Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection."

The coach praying by himself at the end of a game, at the 50 yard does not bother me or seem to be crossing any line. That some, then many players wanted to join him still seems fine to me, though it does look to go right up to that line- whatever that line is. But postgame talks- giving postgame talks with overtly religious references sounds like he was sermonizing. And at that point I'm not sure if that's right for him to be doing that under the banner of the public school. It's a fine line there. If 37 of the 42 kids are Christian and they are all in on the Christian prayer, that's great. But what do they do about the others- maybe of other religions or no religion? Are they ostracized with the approval of the school? As I said, I'm not sure. It's not so clean cut to me.

By the same token, I wonder if Sotomayor would feel the same way about teachers and school boards who use their position to foist their secular 'religions' on our kids under the guise of 'diversity, equity, inclusion'. How is it that entire school systems are allowed to teach kids that their gender is not their gender? Or that white people really are at fault for all things in America and that some races and genders are more honorable than others. Or that the Founders were really just bigoted old white men who don't deserver our attention.

The very dogmatic secular religion(s) which are now the bedrock of American education are no less a mandated, state approved religion than what we consider traditional religions. The school in the temple in this case. The Teachers, the Priests. The apostates are whittled out weekly.

Dude1394 said...

If only he had been witnessing about the joys of bisexuality and transgenderism.

traditionalguy said...

Clash of Kingdoms. The free exercise of religion in America has obeyed a King that orders them to go into all the world and spread the Gospel. The post Christian secular Kingdom obeys orders to snuff that stuff out.

Carol said...

And yay, the Court sez get off the backs of doctors prescribing opioids in good faith. Doctors were getting really paranoid and the young ones refusing to take patients who were on them.

Just another great moral panic that brought on an even worse plague of drugs.

rcocean said...

Sotomeyer's opinion makes little sense, but that's not surprising this she is a results motivated judge and has to twist the case law/constitution to achieve her objective.

Somehow the 1st Admendment which was designed to prevent the Federal Government from establishing a nation-wide church ala the "Church of England" has been twisted in the 21st century into forbidding a Football Coach in Bremerton Wa HS in saying prayer, and justifies his being fired for it.

The phrase "separation of church and state" doesn't exist in the Constitution, and it took almost a 100 years after the 14th Admendment for some Judge to decide that the "Establishment of Religion" meant you couldn't say a prayer in elementary school.

In any case, its absurd that the Federal Courts are deciding what the school policy in Bremerton wa should be about HS Football Coaches praying. This is an area the Federal courts should have stayed out of. But these power mad Judges must rule on EVERY aspect of American society. IRC, there was actually a SCOTUS ruling on whether principles could search school lockers! Insane micro-mangement.

wendybar said...

Charles C. W. Cooke
@charlescwcooke
Replying to @charlescwcooke
Once again: Amicus briefs in support of the petitioner in Kennedy v. Bremerton included the Jewish Coalition for Religious Liberty and The Islam and Religious Freedom Action Team of the Religious Freedom Institute.

Jamie said...

This is pure ostentatious religiosity - righteous virtue showboating.

Hahahahaha...

Shall we now talk about the wearing of rainbow everything, not because a person (including a teacher, btw) has shown an interest in multicolored fashion in the past, but because it demonstrates, as publicly as possible, solidarity with what is at minimum a point of view that is not shared by everyone?

And at maximum represents a secular "religion," with rites, dogma, scripture, prayers in the form of things that must be said, profanities in the form of things that must not be said, priests, relics, saints...?

Or is it just that your critique of the decision is that the guy wasn't praying right? Is that it?

Jamie said...

IANAL, but Scalia's opinion made me giggle with delight.

FunkyPhD said...

It's knelt, not kneeled, wise Latina.

WisRich said...

LOL, Scalia for the win.

gilbar said...

Serious question
If the coach's religion was progressiveism.. would this ever came to court?
If the coach gave a sermon on climate change, or BLM.. that would have been okay, right?

Yancey Ward said...

"Will be interesting to see how people respond to Allah in the same context."

We already know- it is explicitly allowed to pray towards Mecca while in public schools. It is even allowed to pray with the students while doing so. The rooms are provided by many schools in deep blue jurisdictions. Sure, there is some pushback from the Right, but no cases have been brought to court over it that I can find anywhere, and the Left explicitly defends these accomodations, and rightly so in my opinion. If you are looking for hypocrisy on the matter, Lefty Mark, you are looking in exactly the wrong direction.

Yancey Ward said...

Does anyone really believe Sotomayor would have written a different dissent had the coach never been joined by any of the students?

Left Bank of the Charles said...

“Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.”

“And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech”

Atheists take note, the Supreme Court has ruled that prayer is comparable to speaking with a friend, making dinner reservations, and checking email.

Ice Nine said...

>Ice Nine said...This is pure ostentatious religiosity - righteous virtue showboating.
Jamie said...
Hahahahaha...
Shall we now talk about the wearing of rainbow everything, not because a person (including a teacher, btw) has shown an interest in multicolored fashion in the past, but because it demonstrates, as publicly as possible, solidarity with what is at minimum a point of view that is not shared by everyone?<

Naa, let's not, necessarily, since that is an unimaginative red herring to my comment.

Narayanan said...

Sanctions against Russia are leading Latin America to the abyss

where does the sanctions power derive from ?

is it not a takings violation without compensation!

Narayanan said...

Is anyone keeping count of how many times the Court has "overruled Lemon"? Has a case ever been "overruled" so many times and still lived on?
========
maybe there is deep thirst craving lemonade afflicting certain USSC CCTeers [CCT critical constitution theory]

Michael K said...

Back when I was a young Sunday School-indoctrinated kid who thought that there was actually something on the receiving end, even I understood that one could quietly and personally pray to the Omniscient One by simply saying the prayer in one's mind - all without the need for posturing or for having an audience to my piety.

I'm agnostic but I have no problem with people who want to be seen praying. It's part of the faith of some people to be seen doing so. Just like atheists who demonstrate in front of the Supreme Court. The loss of religion has had severe consequences for the society. Global Warming seems to be the most popular substitute right now and that is no improvement.

n.n said...

Prayer is speech.

Atheism is a faith. Pro-Choice is a faith/religion. Progressivism is a faith/ideology/religion. Liberalism is an ideology/religion. Political congruence ("=") is a social, political, economic construct.

That said, religion is a behavioral protocol.

tim maguire said...

Sotomayor, though in the minority, seems to have the better argument. As described in these excerpts, this isn't a private prayer, it's a very public team tradition at a school event on school grounds. The attendance of the students on the team may officially be voluntary, and maybe it was at first, but there comes an inflection point where it starts to matter who joins and who doesn't.

n.n said...

If the coach's religion was progressiveism.. would this ever came to court?

Take a knee, beg, good boy, girl... bow down before the nominally "secular" god, goddess, expert(s) that you serve. Oh, and sacrifice a virgin for social, redistributive, clinical, and fair weather causes. Wicked.

Narayanan said...

Is anyone keeping count of how many times the Court has "overruled Lemon"? Has a case ever been "overruled" so many times and still lived on?
=========
maybe zombies were created by perturbed penumbra to set out eat brains [legal thinking portions expecially juicy]

Readering said...

12 years of Catholic schools and don't remember prayers at sporting events. Admittedly a lot of organized praying at other times and places.

I fear lots of litigation as religious folks in the Bible belt test the boundaries, encouraged by the fictional fact summary from the majority and concurring opinions.

n.n said...

Jamie:

And at maximum represents a secular "religion," with rites, dogma, scripture, prayers in the form of things that must be said, profanities in the form of things that must not be said, priests, relics, saints...?

Precisely. That is the logical characterization of faith, religion, ideology, tradition, and speech. The separation of religion and State is a hard, perhaps intractable problem, which has been especially grievous in secular regimes of the last century in progress.

AZ Bob said...

"Roberts concurrence says it should be on the 30."
--Mary Katharine Ham

Vonnegan said...

"Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him"

Has she heard Protestants* pray? This is how it's done. You say a lot of things for the benefit of the people listening, although if you think about it, it's frequently just telling God what He already knows.

*And yes, that's unfair. Just off the top of my head I can think of many instances when Eastern Orthodox prayers do the same thing. "For you are a good God who loves mankind..." jumps out at me. God knows that about Himself, doesn't He? The people need reminding. It's still prayer.

Seamus said...

That said, it's probably the Satanic Church that is most excited about what doors this opens. They love public displays of religion.

And if a Satanist gets hired as a high-school football coach, he'll be free to worship the horned man or whatever else he wants to do on the 50-yard line after the game.

Vonnegan said...

Readering,

At my sons' Jesuit high school there was a prayer over the PA system before every football game. Our rugby players prayed together in a kneeling circle before and after every match. Frequently the pre-match prayer was St. Ignatius' prayer for generosity. Other Catholic schools we played against would have a PA system prayer before rugby as well (we didn't usually have announcers for rugby so maybe the booth was just locked?). Maybe this is all just Texas - who knows?

Seamus said...

Coach Kennedy could have saved himself a lot of trouble if he'd said that he was kneeling down to pray for the success of BLM.

Howard said...

I love public prayers. We prayed before every football game at a public school. My brother got a gold medal from The Governator for rescuing firefighters from a burn over. There was a prayer given by a preist. I of course didn't bow my head. When I looked around the auditorium, the only other people looking up were my brother and Maria Shriver. She was examining her nails.

Elliott A said...

I believe the school district acted in the manner they did for a different reason than the religion question. Kennedy was demonstrating that we are all individuals despite the indoctrination the system was attempting. We are unique in ability. We can be accepting without supporting. He was demonstrating that success requires you to believe in yourself. Inside the educational bureaucratic bubble this is a horrifying display and must be stopped at all costs.

Yancey Ward said...

"I fear lots of litigation as religious folks in the Bible belt test the boundaries, encouraged by the fictional fact summary from the majority and concurring opinions."

Why do you fear such things?

tim maguire said...

AZ Bob said...
"Roberts concurrence says it should be on the 30."
--Mary Katharine Ham


+1

Jersey Fled said...

Just for the record, the Constitution does not say that the free exercise of religion is only OK if done in private.

Jupiter said...

Hmmmm. Who wrote Sotomayor's opinion? Anyone who didn't know better might imagine she had legal training and was competent to serve as a judge. She must have some "Wise Gringa" working for her.

ConradBibby said...

I'd encourage people to read the majority opinion before deciding that Sotomayor's argument is more persuasive. The dissent strikes me as weak for a couple of reasons. First, it is expressly animated by the fact that the coach's practice of saying a post-game prayer at midfield that his players, and opposing players, voluntarily joined took place after he had previously been woodshedded for actually imparting religious messages to his players and directing them in prayer in the locker room over a number of years. However, the majority takes pains to point out that the coach had already discontinued those constitutionally-offensive practices at the school district's request, to the district's express satisfaction. The district fired the coach merely because the coach thereafter continued to pray on his own after the games, again voluntarily joined by varying numbers of players. Although dissent places heavy emphasis on this "context," it seems to me Sotomayor would basically impose a rule that, once a school teacher or coach has crossed the line in terms of exposing his religious faith to students, they no longer enjoy the free-exercise rights that another faculty member would naturally enjoy who did not have that troubling history. In other words, the coach painted a target on his own back, so the school district was justified in canning him for something that seeming would have been ok had he done it in the first instance.

The main problem I have with the dissent is that the so-called liberal justices seem to think that ANY display of religious faith by a school official on school property during working hours is inherently "coercive." Although the majority certainly agrees that the First Amendment forbids the government from using coercion to expose students to religious messages, the idea that it's "coercion" for students even to overhear or witness a teacher demonstrating his or her religious faith on the teacher's own time, on school property, is several bridges too far for me. As evidence such alleged coercion in this case, Sotomayor cites the fact that several students had stated they went over and joined the coach's post-game prayer ritual because they didn't want to be separated from the other members of the team while it was taking place. Sorry, that's not coercion. The coach's right to say a prayer on the football field shouldn't be taken away just because some random player might feel they had nothing better to do in that five minutes than wander over because that's what his friends were doing.

Greg The Class Traitor said...

From Kennedy v. Bremerton School District, announced just now, written by Justice Gorsuch and joined by the 5 Justices most likely to join Gorsuch.

There are 6 Justices who've repeatedly stated that you can't treat the religious any worse than you treat the non-religious

I wonder what it will take to get the lower courts to accept that?

Quayle said...

“… prayer is comparable to speaking with a friend…”

Correct! It is.

Greg The Class Traitor said...

Readering said...
I fear lots of litigation as religious folks in the Bible belt test the boundaries, encouraged by the fictional fact summary from the majority and concurring opinions.

Let me guess, Readering, you're also claiming that Dobbs outlawed abortion in every State in the nation, right?

I've come to take it as clear proof that someone KNOWS they're spewing BS, when the make a claim that, if true would be easily supportable, and then make no effort to support the claim.

So, lefties, which "fictional facts" are in the summary by the winners, and what is your support for the claim that the "facts" aren't true?

And to follow up: Do you think a school should be able to fire a coach for the fact pattern the winners claimed?

Steven said...

The correct approach, from a textualist-originalist viewpoint, is that the Establishment Clause never protected a right of the people, but secured Congressional noninterference in the power of the states to establish and disestablish religions.

Thus, while Free Exercise of Religion was an individual right that could be and was incorporated against the states by the Privileges and Immunities clause of the 14th Amendment, the Establishment Clause was not, and accordingly was not incorporated against the states.

There is accordingly nothing to balance here; the only question is whether Free Exercise is being restricted by the state.

Greg The Class Traitor said...

Ice Nine said...
>Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer....<

Yeah, it was so "personal" that he just had to do it out in the middle of the field of a football stadium so that he could be sure to be seen doing it by hundreds of people


Yes, it was. it was his personal statement "this is who I am, and this is what I believe."
He did not force anyone to look at him, or to listen to him, unlike your typical left wing protester, nor did he vandalize anything, or physically harm anyone

If you can't tolerate people who are different from you, FOAD

ColoComment said...

For anyone just now discovering the wit and wisdom of Scalia, this is a great place to start expanding your acquaintance with his writings.

https://www.goodreads.com/book/show/148648.Scalia_Dissents?from_search=true&from_srp=true&qid=jNV09qg2zY&rank=3

Greg The Class Traitor said...

Kennedy’s practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with “overtly religious references,” which Kennedy described as prayers, while the players kneeled around him

"Overtly religious references"? Gee, I guess there goes "you shall not crucify mankind upon a cross of gold!"

What a hate filled intolerant bigot she is

Christopher B said...

Left Bank of the Charles said...

Atheists take note, the Supreme Court has ruled that prayer is comparable to speaking with a friend, making dinner reservations, and checking email.


You are misrepresenting the context of the discussion of these secular activities vs prayer. The attempt was not to draw some equivalence between them per se but to point out that the school district conceded its employees were allowed brief moments during their duty time to perform activities that are obviously personal and not work related, and their designation of the time Mr. Kennedy was using to pray as not such personal time was arbitrary.

Tina Trent said...

Remember when people like Scalia and Pat Buchanan and John McLaughlin and Ann Richards made politics fun?

Now all we have is Roger Stone.

Tom T. said...

I come down with Temujin in thinking this was the right result but right up against the line. I would be more sympathetic to the school district if there had been any evidence of actual coercion or ostracism. You know that any such evidence would have been prominently featured if it existed, though, and the most that the dissent could muster were some vague accounts of social pressure.

J Melcher said...

Scalia's opinion made me giggle with delight.

Amen!

There should be a TV show where professional actors talented in interpreting the written text into dramatic art take up the major cases -- excerpted briefs, amicus filings, highlights of oral inquisitions, and decisions -- and help us understand what was at stake and what the outcome was.

Like Perry Mason or Boston Legal, but historical.

Lem said...

...in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.

Yea... I mean, if it's ok to kneel in protest, why can't you kneel in thanks?

That never made any sense.

lonejustice said...

My mother was a kindergarten teacher in a small town in Southwestern Iowa. This would have been in the 1960s. She began each school day with the kids saying the Pledge of Allegiance and then the Lord's Prayer.

No one ever complained.

Jupiter said...

"the District's case hinges on the need to generate conflict ...".

So it would seem. And who better qualified?

Greg The Class Traitor said...

tim maguire said...
Sotomayor, though in the minority, seems to have the better argument. As described in these excerpts, this isn't a private prayer, it's a very public team tradition at a school event on school grounds. The attendance of the students on the team may officially be voluntary, and maybe it was at first, but there comes an inflection point where it starts to matter who joins and who doesn't.

So the Tim Maguire / Sotomayor position is you're allowed to pray if no one wants to join you, but you're not allowed to pray if they do?

There have been hundreds of times when I stood with people who were praying. I never felt like I had to pray, or agree with them. "Let us bow our heads and pray" does not force me to bow my head, and if I do bow my head it does not force me to pray.

"But it tells me I'm an outsider!"
1: So what?
2: You ARE an outsider
3: If you're not willing to be an outsider, that is your problem, and your failure. It is not grounds for everyone else to be denied the right to live their lives.

"Tolerance" is about allowing people you disagree with to nevertheless do things you don't approve of.

I don't tolerate rapists or murderers, and I shouldn't. I do tolerate Rastifarians, as long as they dont' make me deal with their smoke

Lefties, you're going to have to learn to tolerate those to the Right of you

Or you can start a civil war. in which case we'll instruct you on why you should have tolerated us

Quaestor said...

Mark writes, "Will be interesting to see how people respond to Allah in the same context."

Will be, Mark? Wake up and smell the coffee. Observant Muslims must pray five times daily. The Deerborn, Michigan education board peaceably resolved what "progressives" wish to perceive as some sort of Constitution-shattering conflict years ago.

Comparing what passes for Satanist liturgy to the substance behind Kennedy vs Bremerton School District is so wrongheaded that one can only assume Mark has read nothing but un-blue-checked Twitter trollery. Think of it this way, Mark, silent or quiet prayer directed to His Infernal Majesty just doesn't cut the exhibitionist mustard.

Mark said...

"Mark" said:
Will be interesting to see how people respond to Allah in the same context.


Why are these people SO BAD at gotcha and yet think they are so good at it and original and witty?

Mark said...

Sotomayor, though in the minority, seems to have the better argument. As described in these excerpts, this isn't a private prayer, it's a very public team tradition at a school event on school grounds. The attendance of the students on the team may officially be voluntary, and maybe it was at first, but there comes an inflection point where it starts to matter who joins and who doesn't.

How is that an establishment of religion?

Mark said...

Coach is on the sidelines. Receiver goes up for a catch, gets smashed in the back by a defenders helmet before his own head comes crashing down on the ground. Then he just lies there, not moving.

Coach audibly says, "Please God let him be all right." Players near him take a knee.

Establishment Clause violation? Grounds for firing him?

Ice Nine said...

>>Ice Nine said...Yeah, it was so "personal" that he just had to do it out in the middle of the field of a football stadium so that he could be sure to be seen doing it by hundreds of people<<

>Greg The Class Traitor said...He did not force anyone to look at him,<

No, of course not...other than those hundreds who were in the stadium looking out over the field. Way to snag the point there, Greg.

>If you can't tolerate people who are different from you, FOAD<

You have no idea what I can tolerate or not tolerate and my comment enunciated nothing of whatever that might be. I called out his ostentatious virtue signaling, period. So, tuffgai, take your straw man and SIUYA.

Robert Cook said...

"When I was in Junior High back in 1968 we had a bible verse over the PA system each morning before the first class. I should know, I once was selected to give the verse over the system. Sure it was King James Bible.. and I am Catholic.. but I didn't mind. If students wanted to bow their heads and pray... that was ok, if not, that was ok to."

Hey,I was in Junior High back in 1968, too! Hasn't the time gone mind-blowingly fast?!

If a public school is going to have a passage from the Christian Bible read over the intercom, then it should also have passages from all the other world's religions read over the intercom serially, day by day, (including passages that discount the claims of all religions). Give the students an array of philosophies to open their minds to the variety of human beliefs, (especially as so many of them share similarities). If parents object to their children hearing passages from any religions other than the Christian religion, (as exposure to other beliefs unavoidably suggests either that all religions are equally valid or equally invalid, merely humankind's imaginings), the only appropriate solution is to NOT have any religious readings in school.

In the end, this is the simplest option. After all, if students' parents want their children to be exposed to religion, it's the parents' job to pass on their beliefs, not the state or its institutions.

Robert Cook said...

"My mother was a kindergarten teacher in a small town in Southwestern Iowa. This would have been in the 1960s. She began each school day with the kids saying the Pledge of Allegiance and then the Lord's Prayer.

"No one ever complained."


How many children would have the courage to complain if they did object?

Again, why should public schools lead their classes in daily prayers? Religious belief is personal and should be shared only at home within the family or by those gathering together voluntarily for the express purposes of sharing their religious beliefs with others, that is, in church or other explicitly religious gatherings.

Jim at said...

Will be interesting to see how people respond to Allah in the same context.

No. It won't be interesting at all.

If this same coach bopped his head on the 50-yard-line five times a day, we would've never heard about it and he'd still be employed.

Robert Cook said...

"I'm agnostic but I have no problem with people who want to be seen praying."

Jesus sure did. Sayeth he(or is it He?):“When you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men…but when you pray, go into your room, close the door and pray to your father who is unseen.”

Aside from whether one is right (or wrong) to "have no problem with people who want to be seen praying," such public prayers in schoolrooms are essentially coercive to children who are expected to participate. (And,again, why should public schools have any sort of daily prayer recitations?)

mccullough said...

Sotomayor is going to be upset when Barnette is extended to the Woke Pledges in school.

No rainbow pins. No LGBetc ally oaths. No more propaganda.

If teachers, coaches, or principals want to kneel at the 50 yard line in honor of George Floyd then they can do so. But they can’t make the students kneel.

It’s Barnette that will destroy Woke Indoctrination in public primary and secondary schools.

Jamie said...

>Ice Nine said...This is pure ostentatious religiosity - righteous virtue showboating.

Jamie said...
Hahahahaha...
Shall we now talk about [a public display that similarly signals virtue and that has the trappings of religion, from a person in authority over kids, with the possibility of kids' perceiving a similar popularity consequence, with the teacher or with other students, if they don't follow suit]?

IceNine rejoined...
Naa, let's not, necessarily, since that is an unimaginative red herring to my comment.


I'd argue that my comment wasn't so much of a "red herring" as just too wordy, as usual. I'll cop to "unimaginative," because it's just too easy to draw the parallel and many others have also done so.

TWWren said...

I am a conservative but this holding bothers me.

Kennedy is an educator, and the football field is his classroom. Suppose he was teaching algebra and dismissed his class, but before all of his students left his classroom, he took a knee and prayed? Constitutional?

What is the difference?

Greg The Class Traitor said...

Ice Nine said...
>>Ice Nine said...Yeah, it was so "personal" that he just had to do it out in the middle of the field of a football stadium so that he could be sure to be seen doing it by hundreds of people<<
>Greg The Class Traitor said...He did not force anyone to look at him,<
No, of course not...other than those hundreds who were in the stadium looking out over the field. Way to snag the point there, Greg.


1: Why are they looking at the field? The game is over
Have you ever been to a high school football game? Did you stand around looking at the field after the game was over? Why?

2: There is a vast difference between walking out someplace where people can see you, and getting in people's faces.
The later wis wrong. The former, so long as you're allowed there, is not

>If you can't tolerate people who are different from you, FOAD<
You have no idea what I can tolerate or not tolerate and my comment enunciated nothing of whatever that might be. I called out his ostentatious virtue signaling, period. So, tuffgai, take your straw man and SIUYA.

You got your panties in a bunch because someone actually decided to be a Christian in Public. Oh, the horror!

If walking out onto a mostly if not completely empty field and talking in a normal voice is your definition of "ostentatious", you need to upgrade your dictionary

Howard said...

So kneeling during the anthem at football games is protected speak to hat you people support as well.

Ice Nine said...

>Greg The Class Traitor said...
There is a vast difference between walking out someplace where people can see you, and getting in people's faces.<

There is a vast difference between praying, sitting on the field bench or in the locker room at the end of the game, and walking out someplace where people can (be sure to) see you doing it. One is unassuming - the way normal people would do it - and the other is flat out ostentation. You got it, yet?

>You got your panties in a bunch ...<

Oh, ok, Mr. FOAD.

BTW, I support the man and would have voted the same way as the SC majority did. That said, he is still a showboater - which of course is the only observation I made in my OP that you got hysterical about. Also, go fish.

n.n said...

Take a knee, beg, ...
We respect pronouns.
Political congruence ("=").
Toxic masculinity/rape... rape-rape culture.
Diversity, Inequity, and Exclusion (DIE).
Green deals (e.g. environmentalism and arbitrage).
Cargo cult (e.g. masking; mutagenic, non-sterilizing medical treatments; social distancing).
Conflation of sex and gender.
Wicked solutions.

Religious inculcation has taken diverse forms under secular regimes.

Jamie said...

I should add that my (NAL) support of the majority opinion implies that my counterexample of the teacher in the rainbow shirt is not a counterexample at all. Instead, it's a "defend to the death your right to say it" position, in that if that teacher in the rainbow shirt uses before-school or after-school time to "evangelize" about gay pride, I must needs allow it. (The shirt is more obvious than a cross pin or whatever, but same idea.) I hold that position even though I don't think being gay is something that requires a show of "pride" any more.

My husband, more centrist and more straight-up logical than I am, is against the majority opinion for the same reason TWWren, above, is uncomfortable with it. I agree with it on principle even though I, as one of God's Frozen People (the Episcopal church), am uncomfortable with public, potentially evangelistic prayer.

Michael K said...

Aside from whether one is right (or wrong) to "have no problem with people who want to be seen praying," such public prayers in schoolrooms are essentially coercive to children who are expected to participate. (And,again, why should public schools have any sort of daily prayer recitations?)

Once again, Cook lies about the topic. I know Stalin was very strong against prayer in public schools but try to understand that not everyone (actually very few) agree with you.

Aught Severn said...

After all, if students' parents want their children to be exposed to religion, it's the parents' job to pass on their beliefs, not the state or its institutions.

If you want to make that argument, wouldn't that also apply to the belief that gender is a spectrum, or to the belief that every interaction is an oppressor/oppressed interaction? Shouldn't those be left up to the parents to expose their school-aged children to? How are those beliefs different than religious beliefs?

Aught Severn said...

Kennedy is an educator, and the football field is his classroom. Suppose he was teaching algebra and dismissed his class, but before all of his students left his classroom, he took a knee and prayed? Constitutional?

I would say constitutional unless there was some impact to the students, one way or the other, for their (non-)participation.

What's emanating from your penumbra said...

When enforcement of the establishment clause is turned equally against officials who put down religious beliefs, I'll start caring about claims that singular officials openly exercising their religious beliefs is a problem.

bentoak said...

No Sotomayor tag?

These on the field prayers go against the teaching of Jesus when he warned against the dangers of public prayers and advocated private praying (Mt 6.5-6).

Greg The Class Traitor said...

Robert Cook said...
"I'm agnostic but I have no problem with people who want to be seen praying."

Jesus sure did. Sayeth he(or is it He?):“When you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men…but when you pray, go into your room, close the door and pray to your father who is unseen.”


I'm so proud of you for finally pulling that out. It's been hours. What took you so long?

Now look up "Witnessing one's faith"

Aside from whether one is right (or wrong) to "have no problem with people who want to be seen praying," such public prayers in schoolrooms are essentially coercive to children who are expected to participate. (And,again, why should public schools have any sort of daily prayer recitations?)
Well, gee, other than that it wasn't a daily pray recitation, and it wasn't in school, well, it's still a stupid question.

Because there's this thing called "tolerance". What it means is there's things you dont' respect, don't value, don't want, but allow anyway.

And what the freakign school should have done was tolerate his praying.

But you leftist theocrats just can't handle anyone worshiping anything but your deranged religion. BLM, "Climate Change", etc. et al

Greg The Class Traitor said...

Howard said...
So kneeling during the anthem at football games is protected speak to hat you people support as well.
No, because that's part of the game, rather than after everything is over

For flipping the bird at all their customers, the NFL should have fired every single kneeling player. Since they don't I stopped watching, or paying any attention to, the NFL. And they won't ever get me back

Since they're a private company, you know the people who you cheer on when they censor people like me, there's no Constitutional ramifications from them firing the assholes.

It's amazing how much stupidity you can pack into one short sentence, Howard

Greg The Class Traitor said...

Ice Nine said...
>Greg The Class Traitor said...
There is a vast difference between walking out someplace where people can see you, and getting in people's faces.<

There is a vast difference between praying, sitting on the field bench or in the locker room at the end of the game, and walking out someplace where people can (be sure to) see you doing it. One is unassuming - the way normal people would do it - and the other is flat out ostentation. You got it, yet?


You ever heard of "Witnessing your Faith"?

What the coach was doing was a quiet little thing, until the leftist fascists at the school district decided he must be destroyed for offering a God other than theirs, you know, love for BLM, "tolerance" for gays and trans, and climate change for the devil.

Did he shout "he you all, come over here"? no.

He simply went someplace where others could join him if they so chose, and enjoyed his faith.

If that's not allowed, then I want every single fuckign rainbow out of every single public school in America

iowan2 said...

Sotomayor, though in the minority, seems to have the better argument. As described in these excerpts, this isn't a private prayer, it's a very public team tradition

25 yards from the nearest person is very private.

You missed the part of the case that centered on ALL of the 1st amendment. Free speech, and the govt not allowed to limit your practice of religion.

iowan2 said...

Back in the 70's it was more comment than not, to have the coach lead pre and post game prayers.
Practices also.

As was noted earlier, it took almost 100 years after the "separation of church and state made its appearance, for SCOTUS to figure out prayer in public school violated the Constitution.

donald said...

I officiated at least 500 high school football games (JV/varsity). At the end of about 80 percent of the varsity games (That I noticed in the last 10-15 years), there would be a group prayer of both teams, their staffs and sometimes officials. It’s just what they did and nobody questioned it, though there were issues with pre game prayer in Douglas County (Georgia) once. I forget how that turned out.

Freeman Hunt said...

The real school hotbeds of religious compulsion are pep rallies.

Tim said...

So, will this mean Sotomeyer will come down hard on anyone teaching CRT in public schools? How about those teaching children in K-2 that gender is fluid? Both those seem to be outside the scope of what children should be forced to endure in public schooling? Or is she just trying to justify the outcome she wants?

Tim said...

So, will this mean Sotomeyer will come down hard on anyone teaching CRT in public schools? How about those teaching children in K-2 that gender is fluid? Both those seem to be outside the scope of what children should be forced to endure in public schooling? Or is she just trying to justify the outcome she wants?

tim maguire said...

iowan2 said...
"Sotomayor, though in the minority, seems to have the better argument. As described in these excerpts, this isn't a private prayer, it's a very public team tradition"

25 yards from the nearest person is very private.

You missed the part of the case that centered on ALL of the 1st amendment. Free speech, and the govt not allowed to limit your practice of religion.


No, it's there. In the part you chose not to include in your excerpt.

tim maguire said...

Howard said...So kneeling during the anthem at football games is protected speak to hat you people support as well.

Isn't that obvious? Yes, every person here supports the right of athletes to kneel during the national anthem. That was never the issue. Though, as a liberal, I am not surprised by your inability to make the distinction that everyone else makes intuitively.

tim maguire said...

Greg The Class Traitor said...So the Tim Maguire / Sotomayor position is you're allowed to pray if no one wants to join you, but you're not allowed to pray if they do?

Read my comment again. That was explicitly NOT my position.

So far, everyone who criticized me has completely ignored that my position turns on coercion. I see coercion. Sotomayor has made a sound case for it. If you don't see it, fine. Argue that. But don't pretend to be responding to me if you're going to ignore my point.

Robert Cook said...

"Once again, Cook lies about the topic."

Once again, Michael K. demonstrates how intellectually deficient (or dishonest) even doctors can be. He claims I lied, but doesn't say what my lie is. He makes a non-sequitur reference to Stalin. And he avoids addressing the question I asked:

Why should public schools participate in leading Bible recitations by the students? Religion is personal, personal to each individual and to each family. It is solely the responsibility of parents to provide religious doctrine and faith to their children, not that of public schools. No one has answered this question here in any coherent way.

Robert Cook said...

"If you want to make that argument, wouldn't that also apply to the belief that gender is a spectrum, or to the belief that every interaction is an oppressor/oppressed interaction? Shouldn't those be left up to the parents to expose their school-aged children to? How are those beliefs different than religious beliefs?"

I agree absolutely. Such discussions are not an appropriate function of the public schools.

Robert Cook said...

"You ever heard of 'Witnessing your Faith'?"

Witnessing your faith is not the same as (and does not justify) imposing your faith.

Greg The Class Traitor said...

tim maguire said...
So far, everyone who criticized me has completely ignored that my position turns on coercion. I see coercion

You also probably see ghosts, fairies, and sprites. That doesn't mean the rest of us should

Robert Cook said...
Witnessing your faith is not the same as (and does not justify) imposing your faith.

You both keep on making a claim for which you've provided no evidence, other than what delusions you "see".

From Tim: The attendance of the students on the team may officially be voluntary, and maybe it was at first, but there comes an inflection point where it starts to matter who joins and who doesn't.

Sadly for you, we all know what actual "coercion" looks like: It was the School District firing the Coach.

So, who were the people kicked off the team because they didn't join the prayer? You don't have any?
Who were the high performing players who stopped getting playing time because they didn't join? You don't have any?

So, the coach must be forced not to pray, and fired if he does, in an ACTUAL case of State coercion, because you claim someone MIGHT feel "coerced" if he isn't bullied by the State?

Do you really not grasp just how wretched your position is?