Ian Millhouser, one of our best legal commentators, wrote at Vox about Justice Neil Gorsuch’s blatant misrepresentation of the facts in the case of the coach who was exonerated by the Supreme Court for praying at the 50-yard line after the game. Gorsuch’s factually inaccurate description of the case leaves a mess for educators and courts who want to know what sort of prayers are okay and which are forbidden. My personal hunch is that Gorsuch and his extremist allies intend to overrule the 1962 ban on prayer in public schools.
Millhouser begins:
Kennedy v. Bremerton School District is a big victory for the religious right, but only because Gorsuch misrepresents the facts of the case.
But Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied….”
Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.
If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students….
In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.
After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”
When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.
But Kennedy also went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.
At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “stampede,” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.
And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion.
The religious right won a big case. Where will schools draw the line? Will every religion be free to have its own prayers at school?
My prediction: The Supreme Court is building a path to restore prayer in the schools, reversing Engel v. Vitale (1962). Will every religion get its own prayers? Or will there be a single religion imposed on everyone? Or a nonsectarian religious prayer?
The Supreme Church Lads & Lady are as skilled at Cherry-Picking the Constitution as they are at Cherry-Picking the Bible.
great connection
I guess what you are also claiming is that the Constitution can be cherry picked.
The courts are the interpretive branch of government and interpretation is susceptible to notorious perversions — the present Supreme Court has shown itself supremely capable of every one.
The current Extreme Majority (hat tip Bob) are picking the cherry’s and then torching the tree.
Courtus InterruptUS
Courtus Interruptus
Interrupting laws
Supremus intercourtsus
Bending over clause
Taxation in support of someone else’s religion is not Religious Freedom, it’s Religious Servitude.
yup
Sick! Sorry NOT my religion. My religion is REASON, not fairy TAILS, yes “tails.)
When I say the Pledge of Allegiance I NEVER say, “Under god (yes little g).”
I don’t wanna live in the Middle East where people “kill others” over religion. Killing others over doctrine is NOT religion, in my opinion.
I can actually understand how some might believe the “under god” part.
But are there actually people who believe the nation is invisible?
“When I say the Pledge of Allegiance I NEVER say, “Under god (yes little g).””
I am glad you brought it up. Why do kids have to say the Pledge of Allegiance every morning in school?
And why to a flag?
Humans have such idiotic behaviors.
Can you imagine ANY other animal (even an amoeba) not only pledging allegiance to but actually dying for an inanimate object?
Of course it’s voluntary prayer. If you don’t want to stay on the team you don’t have to do it.
Last time I checked, school taxes are not voluntary … but maybe we need to change that …
Let us Pray
Want to play?
Then better pray:
“Let us pray
To play today”
Pardon me for using some stereotypes here. I hate to be the one to break it to all the Bible thumping, prayer in school loving, big truck driving, white bread with mayonnaise eating folks out there, but a message to you from out here in California: yoga and meditation are parts of some religious beliefs. They’re both praised in the Hindu Bhavagad Gita. Your children can now be forced to act like hippies. The Supreme Court said so.
Steve Bannon is working to elect an alt-right Arizona candidate, Mark Finchem. Various media reported Finchem compared the Holocaust to the cancelling of a campaign fundraiser for him by a corporation. Steve Bannon has worked with Catholic Vote on efforts like geofencing Catholic Churches to get votes for the GOP. Fox News reported this week that Catholic Vote plans to spend $3 mil. to defeat Democratic Catholic politicians. Twenty plus of the women in the House, out of about 120 women in the house, could potentially lose their positions.
It’s important to understand the Bannon threat that Nick Patricca of Loyola University warns us about. (WindyCityTimes.com, 2-20-2022, “Bannon, the Catholic Vote, and Our Democracy”). Patricca describes Bannon as wanting to take down our elected governments. It can be inferred that Patricca thinks the Harvard-educated Bannon understands that the situation he is creating resulted in the past, “in the most efficient killer totalitarian state ever inflicted on the human race.” Patricca writes, “Bannon seems willing to tolerate racist, anti-Semitic (and anti-gay) rhetoric and actions among those who rally to his flag, asserting that these aberrations will fade away as his Agenda (succeeds)…. (Patricca continues) The Nazi party was able to take control of Germany in 1933 with less than a majority . (It was) enabled…by the support of the Catholic based Centre Party which voted for the Enabling Act of 1933 which gave Adolph Hitler dictatorship powers….(And, Patricca adds, Bannon) pushes trigger points that enflame the passions in the Catholic body politic….(Bannon’s plans) greatly assist in efforts to weaponize elements of the Catholic Church for the upcoming apocalyptic struggle….”
In the conclusion to the article, Bannon is quoted as saying, on 11-16-2021, “We’ve got Hispanics coming over on our side, African Americans coming on our side, we’re taking down the Biden regime.”
Reality today is shaped by a few for the many these days. Judgment about what they see with their eyes and hear with their ears has to wait for the official word to come down.
Has the number of people for which this is true, increased in the U.S. or, are other factors having an impact?
If solutions are important. I don’t think the rise of the power structures of the conservative Catholic Church, facilitated by men like Pat Buchanan, Tim Birch, Leonard Leo, and Paul Weyrich should be ignored. Nick Patricca (identified in the comment above) sounds the alarm about messaging through the Catholic channel. Buchanan and Weyrich saw an opportunity for theocracy and colonialism when Catholic voting changed from Democratic to GOP voting- my opinion.
correction- Tim Busch
You have been very persistent and consistent in bringing Leonard Leo and the depth of his influence and thoroughness of his selection process to our attention. To use an athletic analogy, he is the general manager of the [r]ight’s judicial team. The Court are the players he selected to play on the field in his style. He makes sure they know which owners they play for. He is the fulcrum of power.
“fulcrum of power”- Media report that Leo is close with Koch.
And what happens to a child who refuses to pray (for any reason) when an evangelical public school teacher tells his/her students they are going to kneel beside their desks and pray before starting class?
Contrary to the opinion of ignorant fools, public school teachers are not all liberals. We belong to all religions or not. We vote or not. We are conservatives, moderates, progressives, liberals or not.
I had a math teacher at my school go to my principal and ask that I be fired because I read out in class a list of possible debate topics that students had submitted, one of which was the creation of transgender bathrooms. That’s all I did. I read the list of topics that students had suggested, and that was one of them. This fundie math teacher’s daughter was a senior in my debate class.
I don’t know the rest of the story, but I kind of infer from your description that your principal backed you up. The best day I ever had as a teacher was when I was called in to see the headmaster after a student misrepresented what I said in class to her father, a member of the school’s board. Although I knew he disagreed with me personally on politics, he said that I should keep doing what I was doing and let him handle the complainers. Would that all teachers had that kind of support.
That’s fantastic, and yes, this principal did. She was (is) a very bright lady and a good diplomat and politician, which every principal must be.
Greg-
The response of the school board member probably had more to do with your skills at conveying your intelligence and analytical ability than it did the character of the board member- just an observation.
So, indeed, sometimes these fundamentalist nutcases are, like this woman, our colleagues.
What sort of prayers are okay and which are forbidden. ”
Clearly, the prayers who pray on the fifty yard line surrounded by players and a gaggle of reporters are A OK.
And presumably, if the latter are Ok, no one is forbidden, not even the prayer who prays by shooting his gun into the air.
SCOTUS misrepresents the right-wing funded Pray To Play Coach. Just as they protect the NRA gutting gun laws. But today TH 7/14 A fleet of 52 yellow school buses is forming a mile-long procession to Ted Cruz’s house in Houston.
4,368 empty seats to honor the number of children killed by gun violence this year.
The first bus will carry items from school shooting victims. A pair of worn-out checkered Vans from 15-year-old Gracie Muehlberger, killed at her Santa Clarita high school in 2019.
A kindergarten graduation card with a smiling teddy bear on it, awarded to Sandy Hook victim Chase Kowalski.
A LeBron James Miami Heat jersey adored by Joaquin Oliver, who died in the Parkland shooting.
They are calling themselves The NRA Children’s Museum!
https://www.click2houston.com/news/local/2022/07/14/over-50-school-buses-head-toward-sen-ted-cruzs-office-to-protest-gun-violence-in-children/
This is a really moving protest. The exhibits aboard the leading bus are heartbreaking.
Yes, but meditation is not allowed because it is Christless — and even worse, godless.
Since they lied about the facts, it’s hard to know what precedent is being set. Is it ok for a coach to announce that he will conduct a prayer service on the 50-yard line and invite the public? Or is it only ok for a coach to pray privately after the players for whom he bears come responsibility have completed their showers, changed into street clothes, and met up with their parents, at which time, presumably the coach would have no responsibility?
It would have been stronger precedent toward the ultimate conservative Christian goal to provide accurate facts, but still rule for the coach.
That Gorsuch could not get a majority to agree with his ruling using the actual facts may mean that some are not ready to go that far.
“Since they lied about the facts, it’s hard to know what precedent is being set.”
If the Supremes had never lied before to get the outcome they desire, I’d say they are setting a lying precedent.
But sadly, this is not the first time they have lied (the lie in Bush v Gore arguably led directly to where we are today) and it almost certainly won’t be the last.
Supreme Lying Precedents
For lying , there are precedents
And also lying Presidents
But lying by Supremes
Is worst of all, it seems
You make a good point, Steve. I suspect that the practical outcome of this will be that there will be an expansive interpretation of the Extreme Court’s ruling by red-state school districts in the South, Midwest, and West.
Already prayer can be student led. We very football game around here is followed by the 5th quarter, a church-sponsored event that is essentially a non religious social gathering. Actually, church is often a non-religious social gathering.
Twenty years ago, I walked into school the Monday following Holy Week. Two girls sat by their lockers rubbing hand cream into their hands. Both were honors students, both never missed church, three times a week.
“So,” I kidded, “working on your Pontious Pilates imitation?”
There were blank looks. I ended up having to explain the whole story, start to finish. Ruined the joke. Modern fundamentalists do not learn their stories.
That’s interesting to hear, Roy. I was raised, in part, by a fundie Grandmother in Kentucky, and by the time I was in middle school, I knew the Bible EXTREMELY well, having been to church (including Sunday school), typically, three times a week, and in those Sunday school meetings, we typically had Bibles open to some passage. So, when I got to college, and we were reading Milton or Donne, I knew precisely what those guys were referring to. I was surprised to find that many people don’t know these texts well at all. I have read almost all of the Bible and many parts of it again and again. I’ve also read a LOT of apocrypha and other non-canonical works. In general, I find that even though I am not a Christian, I know their texts better than most Christians do.
I was in a public high school in rural Georgia 25 years ago and was shocked when the day started with a prayer over the PA system. They were totally flouting the law. I suspect that a LOT of rural schools have done this over the years.
Particularly troubling when considering the need for a cohesive body politic is this sort of discarding of national loyalty when it seems convenient. Having become convinced by the 1962 decision that the Government was trying to take away Christianity by not allowing its practice, many southerners found it easy to believe the Reagan mantra that Government was the problem. This the Nixon Southern Strategy succeeded, paving the way for this march to the right we have watched all our political lives.
Bob-
I agree you know their texts better than the Christians do. Importantly, you are more christian (lower case “c”) than 90% I’ve met. Many of them are fine people but, thinking through the tough calls wasn’t readily anything they entertained.
Some of the fundamentalist preachers know the Bible breathtakingly well and have large portions of it by heart. Given the size of the thing–it’s not a book, it’s a library–that’s quite an accomplishment.
The dispute between Gorsuch and Sotomayor hinged on how broadly to view scope of the coach’s conduct. Gorsuch looked only at the “quiet prayers” that Kennedy engaged in after three specific football games in October 2015, which was the specific conduct for which Kennedy was disciplined. Sotomayor was looking more broadly, to a longer history of conduct by Kennedy, which included the photograph showing him praying at the 50-yard-line surrounded by players. Her argument was that the longer history was relevant to whether students may have felt coerced. I think I agree with her. But just to be clear, this isn’t a case of two people looking at one fact and each saying something completely different happened. It’s a case of two people disagreeing about what facts should be looked at.
There’s a good summary here:
https://www.washingtonpost.com/politics/2022/06/29/gorsuch-sotomayor-praying-coach/
Facts.
“Gorsuch looked only at the ‘quiet prayers’ that Kennedy engaged in after three specific football games in October 2015” assumes and unequivocally declares this to have been purely private faith-based behavior. That is clearly a false assumption if one accepts the truthfulness of this statement: “But Kennedy also went on a media tour, presenting himself as a coach who ‘made a commitment with God’ to outlets ranging from local newspapers to Good Morning America.” Based on this fact, it cannot be argued that this was purely private faith-based behavior. If that were the case, it wouldn’t have mattered where he had prayed, even if he had been in the toilet area.
And in the conclusion, it is argued that this was about “two people disagreeing about what facts should be looked at.” That, as the post above makes very clear, is wrong. If one side uses made up events as a basis to make a decision, especially knowingly doing so, then statements related to these fictions cease to be facts. Broadly understood legal fictions are essential to make jurisprudence work, but pure fictions are entirely another matter.
I don’t understand what you’re saying in your first paragraph.
Re: your second paragraph, what facts did Gorsuch “make up” (as opposed to facts he ignored as outside the scope of his review)? I don’t see that in Diane’s post here.
If you don’t understand how it is hypocritical for one to claim his religious proselytizing is private and then go on a media road show, I really can’t help you.
And the SECOND sentence of the post above: “Gorsuch’s factually inaccurate description of the case leaves a mess for educators and courts who want to know what sort of prayers are okay and which are forbidden.” This plus a post and well-documented reporting and Justice Sotomayor’s dissent ALL make note of this. The second freaking sentence!
You’re right. I will just let this go. You’ll obviously never read the assignment or try to learn. You know it all already and you will always be the aggrieved party.
I wasn’t aggrieved, I was confused. I know you’re a lot smarter than I am, Greg, but consider the possibility that on occasion you don’t convey your thoughts as clearly as you assume. Or have some patience for the less intelligent among us.
Sorry for not understanding what you were saying, and sorry for upsetting you again
What Gorsuch says is that “Kennedy behaved well on these three days hence he always behaved well”.
When we are looking at facts, we have to look at all the facts. We cannot cherry pic the facts we like.
Just because it’s sunny in San Francisco today it doesn’t mean it’s sunny in the whole US.
Gorsuch is using an age old recipe—for example, also used to cherry pick the Bible, as mentioned above—to change reality, hence to lie.
Well argued, Mate.
Nailed it, Dr. Wierdl!
Cherry picking is a popular pastime among lawyers.
Some might say it is the gist of their profession.
It is the diametric opposite of science
The key is that Kennedy was told by his district to stop not for cases in which he was praying silently and privately but specifically because of the cases where he was praying in a decidedly NON private manner and actually making a public spectacle
So it’s actually NOT a symmetric situation where each side is cherrypicking the facts that support their case. It’s a highly asymmetrical situation in which one side is quite purposefully presenting a deceptive story to argue their case.
The upshot is that Gorsuch, Alito, Thomas, Roberts, Coney Barrett and the K. are just blatant liars.
I wouldn’t put it that way. Sticking with your basic formulation, I think Gorsuch was saying “Kennedy behaved well on those three days and how he behaved on any other days is irrelevant and I won’t consider it.”
FLERP– As near as I can figure, after the schdistrict’s first of several warnings to Kennedy, the only games at which Kennedy’s prayers were more or less as described by Gorsuch took place on Sep 17, Oct 23, and Oct 26.
October 16’s game was a direct taunt. Kennedy used MS and social media to advertise ahead what he was up to; TV cameras were on the field ready and waiting. He chose the precise moment when his ballplayers were “otherwise engaged” [singing the fight song], hence pretending to meet the letter of the schdistrict’s prescribed behavior. At that moment he led a pre-advertised (hence very public) “private” prayer at the 50yd line, immediately joined by the opposing team’s players and coach, plus a pile of spectators who broke through police lines to join in, (knocking over a couple of marching band members in the process).
Insubordination, with attitude!
So, Flerp, I think you are correct that the facts of two of Gorsuch’s cherry-picked games were not in contention, but GregB is correct that one of those games was most definitely a case of two people looking at one fact and each saying something completely different happened.
Even had Gorsuch cherry-picked better, Sotomayor makes a good case for looking beyond a mere three games in her dissent: “This Court’s precedents, however, do not permit isolating government actions from their context in determining whether they violate the Establishment Clause. To the contrary, this Court has repeatedly stated that Establishment Clause inquiries are fact specific and require careful consideration of the origins and practical reality of the specific practice at issue.”
I haven’t read the whole opinion or the whole dissent, but you make a good case here, bethree.
It’s actually irrelevant whether the facts in specific cases were “in contention” because cherry picking is fraudulent. It’s sole purpose is to mislead/deceive. In other words, at it’s core. It is a lie.
It matters not one bit that the facts of a cherry picked case might be accurate because by cherry picking, one purposely excludes other facts from consideration,, facts which are relevant to the case (if they were not. There would be no need to exclude them).
iII dhoukshould havsaid said To decide whether the Supreme Majority lied. It matters not whether the facts in specific cases were in contention because they cherry picked and cherry picking is itself a lie.
Of course, it also matters whether they accurately represented facts in specific cases, but even if they perfectly represented the facts in the cases they chose, by cherry picking those cases, they lied.
FLERP! and bethree5,
Trying to understand this better, my question is whether this is an apt analogy:
This almost sounds like a case of a person getting caught red handed burlarizing 10 houses and a corrupt judge pointing out the “truth” — that the person walked by hundreds of other houses and didn’t burglarize those houses and the corrupt judge is citing all those times the person did not rob the houses he walked by and then saying that this person has been unfairly persecuted because the judge is ONLY considering the times when the man walked by homes without robbing them.
And then a second, honest judge points out that the corrupt judge cherry picked the times that the man didn’t rob homes to decare him innocent and ignored all the times that the man did burglarize homes!
Something really stinks when judges do that. It is corruption, not “a case of two people disagreeing about what facts should be looked at.”
I don’t think that’s the parallel here, nycpsp, since there was a range of different behaviors over time; it wasn’t a binary case of did or didn’t rob a house. There was actually one 2015 game where the coach waited until all players were off the field and spectators were leaving when he knelt and said a prayer to himself at the 50yd line. There were others where players were still milling around on the field, so he was observed & some [on occasion, many] joined him. And of course the 10/16/15 game which he advertised and got a crowd praying with him [just not Bremerton students, who were busy singing/ playing the fight song].
In previous seasons, at admin request, Kennedy cut out locker-room prayers, as well as religious references in any post-game pep talks– but was blatantly leading post-game prayers at 50yd line. I have to assume that’s what the first game or two of 2015 looked like, as it was the subject of another district’s comments, which led to Bremerton warning Kennedy. Gorsuch majority opinion invented a scenario based on the first two situations to say that was OK, he shouldn’t have been fired. Sotomayor dissent called foul.
I would call it a “sneaky” decision. It breaks no new ground: it was already OK for staff to say a private prayer without attracting attention of students. So why lie about the circumstances of the 10/16/15 game? I think SCOTUS was telling public, we’re not changing the rules, but we’re not going to enforce them either. [Collateral damage: public knows all about the public 10/16 prayer, so SCOTUS loses credibility, again.]
In other news of the weird and disgusting, years ago, when Donald Trump dumped his wife Ivana, who had born him three children, for a younger woman, he told a reporter that he was a wealthy guy and didn’t have to be with a woman whose body had been ruined.
What an utter piece of filth. This is how he spoke of the woman who had borne his children, with utter disregard and disrespect. This may be the ugliest thing I’ve ever heard anyone say.
cx: had borne his children
I think this is the worst thing I ever heard about Trump. If this statement were coming from anywhere else I would discard it on the basis of being too extreme to believe. But we are talking about Trump here.
Given all the times his orangeness has indicted himself with his own words, it is amazing to me that he still walks the earth.
I couldn’t believe my ears. I sat there listening to him say this to the reporter during an interview, and it didn’t register with him, at all, that there might be anything wrong with what he was saying. He’s an utterly amoral and revolting and imbecilic person.
So, where was the Democratic Party playing this loop over and over and over on the airwaves before the last election? Speaking of idiocy.
Trump was just saying what lots of ultra wealthy men think.
It’s just that Trump is not smart enough not to say it out loud.
Folks like Elon Musk and Jeff Bezos don’t say those things, of course. They just dump one woman and move on to the next.
Oh, and in the case of Musk, have kids that they don’t tell anyone about.
appalling
Or in the case of Elon Musk’s father, dump one woman and move on to her daughter (and his stepdaughter) and father her child.
Because, you know
“We’re on earth to reproduce”
With our stepdaughters?
I swear I learned all this stuff way back in high school, and that was in the Great Radical-Liberal Lone Star State of Texas.
The involuntary part is not merely in the non-peer pressure to attend a state-sanctioned religious service in a state-funded facility, which is unjust enough in its own rite, but in the compulsion of the citizenry to pay taxes for the promotion of that religion.
That is where we find the Framers and the Whole Army of the Revolution spinning in their graves.
You learned that in high school in Texas?
Was that before the Alamo?
This legal analysis is enlightening. It strikes me that Gorsuch’s false rendition of the circumstances allows the court’s rw majority to tick off a political box– to seemingly fulfill a political promise to Federalist Society backers (to get prayer back in schools) without actually doing it.
Interestingly, Justice cavenaw (you-know-who, wordpress doesn’t like name) withheld concurrence on part IIIB of the opinion. That section argues that Kennedy’s prayer represented his own private speech, and repeats the canard of the Gorsuch description as basis. In other words, cavenaw is fine with the decision—which in fact breaks only with the Lemon test—but does not pretend that the actual circumstances of Kennedy are as stated here. (Not sure what to make of this– do I sense some ray of truth permeated cavenaw’s blinders?)
The Kennedy decision does not sound precisely to my ears as building a path to returning organized, official-led prayer to public schools via future cases. It’s more a cynical threading of the needle: “we’re not going out on a limb for government schools here, folks. Do what you want and we’ll look the other way.” I’m guessing SCOTUS will more likely prefer to continue to put their weight behind expanding publicly-funded [quasi-private] religious schools.
But I forgot something that is probably more important [and was pointed out by Diane in this post]. I still hold that SCOTUS is tipping its hat to Federalist Society without actually promoting prayer in public school. HOWEVER… SCOTUS most likely chose to argue this case because it was the first one available to its rw religious majority that gave it the opportunity to dump 1971’s “Lemon test.” It seemed to me a useful way to guide judicial decisions on how far public financing of religious institutions may go before they are treading on the First Amendment’s establishment/ practice clause. I particularly liked the phrasing of the 3rd prong warning against “excessive entanglement between government and religion.” However, SCOTUS has been criticizing and poking holes in it for the last 30 years [starting with Thomas and Scalia], so we knew it was on the chopping block. It remains to be seen whether SCOTUS establishes a replacement “test.” (I am skeptical that they will even go there.)
Ian Milhiser associates with politically progressive groups. I would add that his legal take on this decision is not exclusive to progressives. I’ve actually not read any legal analysis so far that didn’t take a poke at Gorsuch’s faux reading of the circumstances. I came across one by a very large US law firm specializing in labor/ employment cases. They also point out Gorsuch’s glaringly disingenuous reading of Kennedy’s 10/16 public prayerfest. And point out that the issues are by no means settled one way or another by this decisioin; employers will need to continue to be very careful how they go here. https://www.jacksonlewis.com/publication/us-supreme-court-school-district-can-t-discipline-coach-post-game-public-religious-observances