[reposted at the request of a friend….]  Lawsuits tell a story. The problem is, by the time that story gets reduced to a written opinion by the court, the litigation process itself has almost certainly distorted that story.  If a case is dismissed on a Rule 12(b)(6) motion to dismiss, then the facts in the opinion are (or should be) exactly what the plaintiff initially alleges them to be; the defendant doesn’t get to tell his side of the story at all. If the case is dismissed on summary judgment, then both parties have had the opportunity to submit evidence to the judge, but the judge is still supposed to resolve any factual disputes in favor of the non-moving party (usually the plaintiff).  The defendant gets to tell his side of the story, but the judge ignores parts (sometimes large parts) of it when writing the opinion.  In neither case is the author of the opinion saying that the story told in the opinion is actually correct; they are just the facts as alleged by the plaintiff, or the facts that are undisputed (or that favor the non-moving party).

Most people don’t understand this, because legal opinions are almost always written as if the story told in the opinion is what actually happened.  But if you accept the old adage that there are three sides to every story – your side, my side, and the truth, which is somewhere in between – then the story told in a written court opinion is almost certainly incorrect, at least from someone’s point of view.

I raise this issue because in Kennedy v. Bremerton School District, the case that I discussed last week in which the Supreme Court upheld the constitutionality of a high school coach’s after-game prayers at the 50-yard line, one would be forgiven for thinking that the Majority and the Dissent were looking at two completely different football fields – and two completely different prayers – when they wrote their decisions.

The Majority opinion – written by Justice Gorsuch, and garnering the votes of Justices Roberts, Thomas, Alito, Barrett, and (for the most part) Kavanaugh – went out of its way to make two factual findings that were extremely important to its overall determination that Coach Kennedy’s speech was private, but which appear highly dubious, at least based on the record that was actually before the Court.  We know the Majority believed these findings to be critical to its decision, because they appear in the first three sentences of the opinion (and are then repeated throughout).

First, the Majority states that Coach Kennedy “offered his prayers quietly while his students were otherwise occupied.”  (Majority, at *3 (all references to stared pages are to the current Westlaw version of the opinion)).  The Majority refers to the prayers as “quiet” ten (10) times in its opinion, and this allowed the Majority to find that the prayers were personal, and not public speech.  But they did this by pretending that only three football games actually mattered – those on October 16, 23 and 26 – because those were the only three games that were specifically referenced in the letter placing Coach Kennedy on paid administrative leave.  This allowed the Court to ignore seven years of escalating prayers at the 50-yard line, which the Court acknowledged involved “most of the team” and sometimes players from the other team, and into which Coach Kennedy incorporated “short motivational speeches” to the players.   (Majority, at *4).  It also allowed the Majority to ignore the September 11 game, at which Coach Kennedy “led a prayer out loud, holding up a player’s helmet as the players kneeled around him.”  (Dissent, at *20).

As to the three games the Majority found relevant, even then the Court really only looks at the beginning of each prayer – and not at how the situation developed as the prayer went on.  This allows the Majority to largely ignore the chaos that developed during the October 16 prayer, when numerous spectators rushed the field to join Kennedy in his prayer, and a group of Satanists was ready to engage in a counter-demonstration (the Satanists, perhaps showing the most sense of anyone there, ultimately decided that going out on the field would be a bad idea, so they stayed put in the stands).  As the Dissent wryly notes, “[t]o the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts.”  (Dissent, at *18).

Second, the Majority stressed several times that  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.”   (Majority, at *3)  However this statement got into the record (which is very unclear), it should be noted that the record also clearly establishes that the official duties of the coaches included “supervising student activities immediately following the completion of the game, until the students were released to their parents or otherwise allowed to leave.”  (Dissent, at *19).  Kennedy was reminded of this duty in a memo on September 17.  (Dissent, at *21).  As the Dissent noted, there is a significant difference between “making a call home on the sidelines, fleetingly checking email, or pausing to hug a friend in the crowd” (Dissent, at *26 n.3), and what Kennedy was doing.

So ultimately, there are your two football fields:  one, where a coach pauses briefly during “free time” to offer a private, quiet prayer by himself, and one where a coach gathers together a group of persons (including some who have nothing to do with the team), to engage in public, demonstrative (and religious) speech in an effort to “mentor” the team, during time when he was supposed to be supervising students.  It is easy to see how each side reached the decision they did, if those are the facts that they saw.

But it should also be noted that if you are someone who doesn’t like the outcome of the case, then the facts that the Majority relied on (rightly or wrongly) are actually good for you, because those are the facts that you are going to stress when distinguishing Kennedy from a new situation confronting your school: that Kennedy involved private, non-group speech outside the classroom, during a time when the employee was free to engage in private activities. This will distinguish what was allowed in Kennedy (now portrayed as a fairly extreme, unique set of facts) from more common employee religious behavior in the classroom, and particularly from organized group prayer, like at graduation ceremonies or football games, which even the Majority appears to concede is different than what was confronting them in Kennedy:  “this case looks very different from those in which this Court has found prayer involving public school students to be problematically coercive.”  (Majority, at *16, referring to Lee v. Weisman and Santa Fe ISD v. Doe).

So those are my factual problems with the Kennedy opinion.  I have a number of problems with the legal analysis of the Majority as well, mostly stemming from the fact that on several issues, instead of simply admitting that they are overruling or ignoring past cases, the Majority insists on pretending that “this is what the law has been all the time.”

The Establishment Clause

• The Majority almost completely eviscerates the Establishment Clause, by elevating the rights of the individual under the Free Exercise (and Free Speech) Clauses to unprecedented heights, while at the same time handcuffing the ability (or the responsibility) of the government to step in and protect minority rights. This has been a growing trend in recent religion cases, including the Montana (Espinoza v. Montana Dept. of Revenue) and Maine (Carson v. Makin) voucher cases.  As the Dissent notes, “[t]he 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.”  (Dissent, at *18).  This anarchistic approach ignores one of the main purposes of the First Amendment (and the Bill of Rights generally), which is to protect minorities religions/viewpoints (majority viewpoints are to a large degree protected by the democratic process).

• The Majority claims that the three relevant clauses of the First Amendment (Establishment, Free Exercise, and Free Speech) “have ‘complementary’ purposes, not warring ones,” and criticizes the school district for creating a “false tension” (the Dissent’s words) between the Establishment Clause and the Free Exercise/Free Speech Clauses, and then “chos[ing] its preferred way out of its self-imposed trap” (Majority, at *13) by believing that the Establishment Clause required it to stop Kennedy’s prayers.

• The problem with the Majority’s “hey, we’re all friends here” approach to the First Amendment is that the courts have long recognized that “[t]hese two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension.” Locke v. Davey, 540 U.S. 712, 718 (2004).  Arguably, they were intended to be at odds with each other, and the only way that you can eliminate the tension is to eviscerate one of the clauses.  The Majority criticizes the school district for overly favoring the Establishment Clause, but all the Majority is doing is overly favoring the Free Exercise Clause instead.

Lemon v. Kurtzman

• The Majority then functionally overrules Lemon v. Kurtzman. I actually don’t have too much of a problem with that. Whether Lemon was or was not a workable test, the Supreme Court hasn’t really been using it for years, and pretending like it was still valid law was just confusing everyone.

• But the Majority states that “this Court long ago abandoned Lemon and its endorsement test offshoot.” (Majority, at *13).  To the extent that the Court is suggesting that Lemon was actually overruled years ago, that simply isn’t correct. To the extent that the Court is admitting that over the last forty years, the Court has been maddeningly vague about the status of Lemon – using it when it was useful, ignoring it when it was not, and most explicitly not ever taking the opportunity to overrule it – that I would agree with.  But claiming that it was “long ago abandoned” is bad cricket, since that potentially reopens every lower court decision that used Lemon, thinking (understandably) that it was still good law.

• The Majority criticizes Lemon for a misguided attempt to create a “‘grand unified theory’ for assessing Establishment Clause claims” (Majority, at *13) – but then it goes and creates its own “grand unified theory”: “[i]n place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings’” (Majority, at *14). To support this new test, the Court cites to two recent cases:  Town of Greece, N.Y. v. Galloway (2014) and American Legion v. American Humanist Association (2019).

• • To the extent the Court is suggesting that “history” has long been an accepted Establishment Clause test, that isn’t really true. Originally (for the most part) used to justify legislative prayer in Marsh v. Chambers (1983), it was then routinely rejected as a reason for allowing various practices that couldn’t be justified under more accepted tests (like Lemon).

• • “History” made a dramatic return to the Supreme Court in Town of Greece, another legislative prayer case where the primary issue was whether Marsh, which involved a state legislature (Nebraska), should be extended downwards to cover local municipal meetings, like a city council meeting. It’s not surprising it was used as a test in Town of Greece, given that the case was essentially Marsh, Part 2, but even in Town of Greece the Court cautioned, “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historic foundation.”

• • History’s first major non-legislative prayer appearance at the Court was not until 2019 in American Legion, when the Court used it to rule that Maryland’s maintenance of a 93-year-old WWI memorial in the shape of a 40-foot cross did not violate the Establishment Clause. American Legion upheld the constitutionality of the cross, based largely on a detailed analysis of the history of using crosses as war memorials (there is an extensive discussion of WWII cemeteries at Normandy).

• • But one of the more interesting aspects of American Legion was its attempt to categorize Establishment Clause cases into six (or maybe seven) categories of factual situations. In criticizing Lemon’s attempt to establish a “grand unified theory,”  numerous justices emphasized that their use of history in American Legion was only intended to apply to one of the categories – that of “monuments, symbols, and practices with a longstanding history”.

• • • Justice Breyer, who dissented in Kennedy, joined the majority opinion in American Legion, noting that “I have long maintained that there is no single formula for resolving Establishment Clause challenges.”
    • Justice Kagan, also a dissenter in Kennedy, joined parts of the majority opinion in American Legion, noting that “[a]though I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis.”

• • So there was a belief after American Legion that courts would start focusing on the individual Establishment Clause categories discussed in that opinion, and start developing tests for situations that fall into each specific category, as opposed to creating any new “grand unifying theories” that would be intended to address all Establishment Clause cases.

• • But the categorical approach to the Establishment Clause that appeared to have several adherents in American Legion is wholly abandoned in Kennedy, which mentions American Legion several times as rejecting the grand unified theory of Lemon and establishing a “historical practices and understandings” test, but fails to acknowledge (at all) that it only did so with regards to “monuments, symbols, and practices with a longstanding history”—only one of the six (or seven) categories that it established.

• • • Kennedy’s on-field prayers would have fallen under either Category Four (“religious expression in public schools”) or Category Five (“regulation of private religious speech”) of the American Legion.

History and Tradition 

• While the Justices don’t appear to agree on what American Legion did or did not do, one thing that the Majority and the Dissent in Kennedy both agree on is that the Court has now completely replaced Lemon with some kind of “history and tradition” test:

• • Majority: “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings. The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.”  (Majority, at *14).

• • Dissent: “Upon overruling one ‘grand unified theory,’ the Court introduces another: It holds that courts must interpret whether an Establishment Clause violation has occurred mainly “by ‘reference to historical practices and understandings.’” (Dissent, at *30).

• But what does the new “history and tradition” test really mean?

• • The Majority does not really give any meaningful explanation of the elements or contours of its new “history and tradition” test, presumably leaving it for future courts to flesh out the test (much as the Court did in Mahanoy Area Sch. Dist. B.L. by and through Levy, 141 S. Ct. 2038 (2021)).

• • Justice Gorsuch, who authored Kennedy, only concurred in American Legion because he had some issues with how the majority viewed the history test in that case. So it is possible that the conservative justices who joined the Kennedy majority couldn’t agree among themselves as to how to define their new test.

• • Kennedy Dissent: “For now, it suffices to say that the Court’s history-and-tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal issues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules.”

• What are the problems with relying on “history”?

• • An over-reliance on history encourages plaintiffs to argue that the government should be allowed to keep violating the law, just because they’ve been violating the law for a really long time.

• • While both American Legion and Town of Greece cautioned that “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation,” that quote does not appear in the Kennedy

• • Does “history” mean how old the actual thing or practice at issue is (e. the 93-year-old Bladensburg Cross at issue in American Legion) or things and/or practices in general (i.e. war memorials in general). In other words, can a city build a brand-new war memorial in the shape of a cross today?  The Justices do not agree on this.

• • • Justice Breyer (concurring in American Legion): “Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land….A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

• • • Justice Gorsuch (concurring in American Legion): ““[B]ecause what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

• What are the problems with relying on “Common Traditions” and “Ageless Principles”?

• • Whose traditions and principles are we talking about?

• • Remember: while the seven “majority” justices in American Legion all seemed to have little problem accepting the position that the cross had become a universally perceived and accepted symbol for war memorials, the dissent vehemently disagreed that that was so.

• • • Justice Ginsburg: “In sum, “[t]here is simply ‘no evidence … that the cross has been widely embraced by’— or even applied to—’non-Christians as a secular symbol of death’ or of sacrifice in military service” in World War I or otherwise.”

• • Scary quote (in my humble opinion) from Justice Gorsuch in American Legion: “But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes.”

• • • But isn’t the First Amendment supposed to prevent minorities from having to do that?

• • • Justice Gorsuch also said something very similar in Kennedy: “But learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to “a tolerant citizenry.”

• • • So have we now moved on to a “Get Over It” test?

The Coercion Test

• The Majority’s coercion analysis lacks much grounding in reality, in that it relies entirely on Kennedy saying that he never told anyone that they had to join him in prayer, and completely ignores the very real possibility of indirect coercion, which many cases have acknowledged in the past is a real problem when dealing with students in a school setting.

• • “…it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities.” (Dissent, at *18)

• • The Supreme Court largely rejected this same argument – that there was no illegal coercion because students weren’t really required to attend the events in question – in Lee v. Weisman (prayers at graduation) and Santa Fe ISD v. Doe (prayers at football games), noting the societal pressures on students to be present at the events in question.

• • It is also somewhat disturbing that when confronted with evidence actually in the record that at least some students did feel compelled to attend Kennedy’s prayers, the Majority’s only response was to dismiss such evidence as “hearsay,” apparently because school officials had only heard about such concerns from parents, and not from the students themselves.

In the end, I will simply caution: be careful what you wish for.  For my conservative friends who think the result in Kennedy is great, because it allowed Christian prayer at school, just remember that an anarchistic elevation of the rights of the individual over everyone else applies to everyone.  Are the parents who were happy that their children were getting to participate in Coach Kennedy’s Christian prayers going to be equally enthusiastic when the next assistant coach decides to “mentor” his students by engaging in Islamic prayer? Or Satanic “prayer” (remember, the Satanists were quite literally waiting in the wings at the October 16 game).

This is not a hypothetical:  while the Equal Access Act was originally championed by conservatives and passed primarily to force schools to allow Bible clubs to meet (or to clarify that they were already allowed to meet on an equal basis under the First Amendment), the primary beneficiaries of the Act during the last couple decades have been LGBTQ+ clubs, who have used the same law to gain the same rights (and same access to school facilities) as everyone else.  I’m not saying this is a bad thing (I think it’s a good thing), but I’ve heard many parents grumble that “that’s not what that law was for.”

I’m sure that over the next couple months, as pundits analyze this case, we will hear from conservative commentators that they are fine with teachers of other religions getting the same ability to pray at school – and some of them will genuinely mean it.  But Kennedy is likely to become the next NIMBY of the school law world:  a case that is easy to support hypothetically, but that parents come to really dislike when their children are exposed at school to prayers/speech/whatever from a religion or viewpoint that they don’t like.  And at that point in time, people may come to miss the Establishment Clause.