A few years ago, when five Supreme Court justices turned a blind eye to… Donald Trumpdisdain for Muslims and maintained a ban banning millions of them from traveling to the United States, Justice Sonia Sotomayoro sounded the alarm about playing favorites. Not with the incumbent president, though her colleagues certainly blessed one of his clearest expressions of xenophobia as a legal matter. Instead, the judges seemed to be playing favorites with religion itself. “When the government acts with the apparent and predominant purpose” [of disfavoring a particular religion]Sotomayor wrote, citing an earlier case, “it violates that central establishment clause value of official religious neutrality, as there is no neutrality when the government’s ostensible purpose is to take sides.” Considering Trump’s statements as a candidate and actions as president as a whole, she wrote, “a reasonable observer would easily conclude that ‘his ban’ was motivated by hostility and hostility to the Muslim faith.”
Those admonitions are far in the rearview mirror. Yet they remain a useful yardstick for understanding how, throughout the Trump years to date, the Supreme Court has played favorites and, block by block, dismantled the separation of church and state that the First Amendment once established to guard against a official “establishment of religion.” The final blow to that wall came on Monday, when a Christian soccer coach with a habit of praying on the 50-yard line triumphed by convincing six judges that his public and seemingly coercive expressions of faith, rather than flying in the face of the First Amendment’s commitment to religious neutrality, were instead: protected by other parts of the amendment — those protecting freedom of expression and the free exercise of religion.
The facts and the law in Kennedy v. Bremerton School District are a bit of a yarn. But it’s important to unscrew them because the Supreme Court, in an opinion of Justice Neil Gorsuch and largely joined by the other five Conservative judges, massages them into a story of government intolerance for a person who wants to offer “a quiet prayer of thanks” and thus meekly express himself and his faith, in the exercise of his duties as a public collaborator. “Respect for religious expression is indispensable to life in a free and diverse republic — whether those expressions take place in a shrine or in a field, and whether they manifest through the spoken word or a bowed head,” advises Gorsuch.
History is written by the winners, the saying goes, and Gorsuch does his best to portray Kennedy as a school district martyr bent on destroying him. But that’s not at all what happened. Don’t take it from me or even from Sotomayor’s dissent accompanied by judges Stephen Breyer and Elena Kagan. Listen to the words of the American circuit judge instead Milan Smith, an appointee of George W. Bush who has considered this controversy in depth in the lower court and was still baffled last year by the “fraudulent story” underlying it.
As the judge explains, Joseph Kennedy, a high school coach employed by the Bremerton School District in Washington State, was not an unfortunate civil servant who was “disciplined for holding silent, personal prayers,” as Jesus clearly instructs in his sermon on the mountain. “That story is false,” explains Smith. That may have been the case at the outset of Kennedy’s tenure, the judge writes, but the coach then added “an increasingly public and audible element to his prayers about the next about seven years— after which school officials learned that he had prayed with students in the locker room and invited others to join him at the 50-yard line after the game. “He was only disciplined after BSD unsuccessfully tried to reach a settlement with him after he demanded (in a letter from his counsel) the right to pray in the middle of the football field immediately after the games while the players are on the field. goods. field, and the audience was still in the stands,” the judge added.
But wait, it gets worse. As the file in the case shows, Coach Kennedy then “advertised in the area’s largest newspaper, as well as local and national TV stations, that he intended to disobey BSD’s instructions not to publicly interact with his players.” pray while he was still on duty, even though he said he would lose his job because of it,” Smith writes. As he said he would, Kennedy prayed aloud in the middle of the football field immediately after the first game after his attorney’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician and members of the news media with television cameras recording the event, all of whom had been informed of Kennedy’s intended actions through local news and social media.
This more striking picture of the ordeal Kennedy had to endure others is crucial as public school districts have hitherto struggled to comply with the First Amendment’s recognition that public institutions must not endorse or disapprove of any particular religion. But for this Supreme Court, that’s no longer a major concern. Here the real bad guy is the school district, which took its obligations to remain religiously neutral in the eyes of its constituents too seriously and instead disciplined the coach for practice its own rights. If there’s a conflict between these competing First Amendment values — speech, religion, and the church-state barrier — Gorsuch suggests, they’re just part of the district’s own imagination. “In reality, there is no conflict between the constitutional commandments that lie before us,” Gorsuch writes. “There is only the ‘mere shadow’ of a conflict, a wrong choice based on a wrong construction of the establishment clause.”
Sotomayor, completely unconvinced by Gorsuch’s mash-up of the First Amendment, let alone his reading of the facts, calls false and identifies what for many has been the Supreme Court’s growing penchant for individual litigants claiming religious rights, while he ignores those who or may not have any religious beliefs, but believe that the government or its agents should not take sides and take us for the ride. “The Court now takes a different course, once again focusing almost exclusively on protecting the Free Exercise Clause for individual religious practice, while making short shrift of the Establishment Clause’s prohibition on state establishment of religion,” Sotomayor writes.
As in the case of a Muslim ban, Sotomayor has long championed strong anti-establishment positions, while the other liberals, Breyer and Kagan, have been more circumspect in their views on what the religious clauses require, sometimes joining their conservative colleagues where it is necessary. seems that the damage to the separation of church and state is more like a small tear. But here the three judges spoke with one voice, as in last week’s opinion that mistakes were made in a Maine program that excluded certain religious schools from public funding. They even had the presence of mind to record visual evidence of exactly what Kennedy did at the controversial football games.