A few years ago, when five justices of the Supreme Court turned a blind eye to Donald Trump’s contempt toward Muslims and upheld a ban that barred millions of them from traveling to the United States, Justice Sonia Sotomayor sounded the alarm about playing favorites. Not with the sitting president, although her colleagues were certainly blessing one of his clearest displays of xenophobia as a matter of law. Instead, the justices appeared to be playing favorites with religion itself. “When the government acts with the ostensible and predominant purpose [of disfavoring a particular religion],” Sotomayor wrote, quoting an earlier case, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” Viewing Trump’s statements as a candidate and actions as president as a whole, she wrote, “a reasonable observer would readily conclude that” his ban “was motivated by hostility and animus toward the Muslim faith.”
Those admonitions are far in the rearview mirror. Yet they remain a useful benchmark for understanding how the Supreme Court, all through the Trump years until now, has been playing favorites and dismantling, block by block, the separation between church and state that the First Amendment once erected to guard against an official “establishment of religion.” The latest blow to that wall landed on Monday, when a Christian football coach with a habit for prayer at the 50-yard line prevailed in convincing six justices that his public and seemingly coercive displays of faith, rather than fly in the face of the First Amendment’s commitment to religious neutrality, were instead protected by other parts of the amendment—those that protect freedom of speech and the free exercise of religion.
The facts and the law in Kennedy v. Bremerton School District are a bit of a yarn. But unspinning them matters because the Supreme Court, in an opinion by Justice Neil Gorsuch and largely joined by the other five conservative justices, massages them into a tale of government intolerance for a person wishing to offer “a quiet prayer of thanks,” and thus meekly expressing himself and his faith, in the course of his duties as a public employee. “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 field, and whether they manifest through the spoken word or a bowed head,” Gorsuch counsels.
History is written by the winners, the saying goes, and Gorsuch tries his best to portray Kennedy as a martyr of a school district bent on his destruction. But that’s not at all what happened. Don’t take it from me or even from Sotomayor’s dissenting opinion, joined by justices Stephen Breyer and Elena Kagan. Instead, heed the words of U.S. circuit judge Milan Smith, an appointee of George W. Bush who considered this controversy in depth in the lower court and just last year was dismayed by the “deceitful narrative” driving it.
As the judge explains, Joseph Kennedy, a high school coach employed by the Bremerton School District in Washington state, was not some hapless public servant who “was disciplined for holding silent, private prayers,” as Jesus clearly instructs in his Sermon on the Mount. “That narrative is false,” Smith explains. That may have been the case at the beginning of Kennedy’s employment, the judge writes, but the coach then “added an increasingly public and audible element to his prayers over the next approximately seven years”—after which school officials learned that he had been praying with students in the locker room and inviting others to join him at the 50-yard line post-game. “He was disciplined only after BSD tried in vain to reach an accommodation with him after he (in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands,” the judge adds.
But wait, it gets worse. As the record in the case reflects, Coach Kennedy then “advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result,” Smith writes. “As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’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 advised of Kennedy’s intended actions through the local news and social media.”
This more fulsome picture of the ordeal Kennedy made others endure is crucial because, at least until now, public school districts took pains to comply with the First Amendment’s recognition that public institutions should not be endorsing or showing disfavor for any one particular religion. But to this Supreme Court, that’s no longer a chief concern. Here, the real villain 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 exercising his own rights. If there’s any conflict between these competing First Amendment values—speech, religion, and the barrier between church and state—Gorsuch suggests, they’re merely a fixture of the district’s own imagination. “In truth, there is no conflict between the constitutional commands before us,” Gorsuch writes. “There is only the ‘mere shadow’ of a conflict, a false choice premised on a misconstruction of the Establishment Clause.”
Sotomayor, not convinced at all by Gorsuch’s mash-up of the First Amendment, let alone his reading of the facts, calls foul and identifies what for many has been the Supreme Court’s increasing predilection for individual litigants asserting religious rights, while ignoring those who may or may not hold religious beliefs but believe the government or its agents shouldn’t be taking sides and bringing us along for the ride. “The Court now 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,” Sotomayor writes.
As in the Muslim-ban case, Sotomayor has long staked out strong anti-establishment positions, whereas the other liberals, Breyer and Kagan, have been more circumspect in their views about what the religion clauses require, sometimes joining their conservative colleagues where it appears that the damage to separation of church and state looks more like a small crack. But here, as in last week’s opinion finding fault with a Maine program that excluded certain religious schools from public funding, the three justices spoke with one voice. They even had the presence of mind to include visual evidence of what exactly Kennedy was doing at the contested football games.