Neil Gorsuch ‘Misconstrues The Facts’ In School Prayer Case
The conservative Supreme Court supermajority ruled on Monday that public school employees may offer public religious prayers while working on school property.
The 6-3 decision, written by Justice Neil Gorsuch and joined by the other five conservative justices, overrules a 1971 decision that laid out how the government should act to keep itself separated from the promotion of religion.
The decision accomplishes this by echoing the tale told by Joseph Kennedy, a high school junior varsity football coach and varsity assistant coach for the Bremerton School District in Washington state, who was fired from his job in 2015.
Kennedy’s story paints a picture of a coach who only wanted to conduct his own private prayer after his team’s games while seeking no attention from his players or the public.
This story, however, “misconstrues the facts,” as Justice Sonia Sotomayor noted in her dissent. It buys hook, line and sinker what 9th Circuit Court of Appeals Judge Milan Smith, a George W. Bush appointee, declared a “deceitful narrative” when the case came before him.
Kennedy was fired from his job, Gorsuch writes, “because he knelt at midfield after games to offer a quiet prayer of thanks.” And he did so “while his students were otherwise occupied.”
Kennedy had a history of praying in the context of football games ― Gorsuch acknowledges that much. He began by praying “on his own,” but “over time, some players asked whether they could pray alongside him.” The number of players joining Kennedy’s postgame prayers at the 50-yard line “grew to include most of the team,” though it fluctuated from game to game. The coach then “began incorporating short motivational speeches with his prayer when others were present.”
The team also sometimes engaged in pre- and postgame prayers in the locker room. These prayers were a “school tradition” predating Kennedy’s tenure, Gorsuch states.
In September 2015, the school learned of Kennedy’s prayers “after an employee from another school commented positively on the school’s practices to Bremerton’s principal.” On Sept. 17 of that year, the school superintendent sent a letter to Kennedy telling him to cease leading prayers in the locker room and at the 50-yard line after games, noting that his “inspirational talk[s]” included “overtly religious references.”
Kennedy stopped leading prayers immediately after he received the superintendent’s letter. But after leaving a game, he later returned to pray on the field by himself. On Oct. 14, a lawyer representing Kennedy sent a response to the superintendent declaring that his “sincerely-held religious beliefs” demanded he give a “post-game personal prayer” at the 50-yard line.
“He ‘told everybody’ that it would be acceptable to him to pray ‘when the kids went away from [him],’” Gorsuch writes. “He later clarified that this meant he was even willing to say his ‘prayer while the players were walking to the locker room’ or ‘bus,’ and then catch up with his team.”
On Oct. 16, in a letter ahead of a game that same day, the school replied. They said that Kennedy had complied so far with their Sept. 17 request to cease praying at the 50-yard line and with his players in the locker room. But they forbade Kennedy from “any overt actions” that could “appea[r] to a reasonable observer to endorse … prayer … while he is on duty as a District-paid coach.”
Gorsuch describes this letter as failing to accommodate “Kennedy’s request to offer a brief prayer on the field while students were busy with other activities ― whether heading to the locker room, boarding the bus, or perhaps singing the school fight song.”
In spite of the letter, Kennedy prayed, initially by himself, at the 50-yard line while his team sang their fight song. However, members of the opposing team and other “members of the community” joined him on the field in quiet prayer.
“This event spurred media coverage of Mr. Kennedy’s dilemma and a public response from the District,” Gorsuch writes.
The school district responded by making robocalls to parents to tell them the field was off limits to anyone watching the games. They posted signs around the field with a similar message, and got local police to prevent any incursions onto the field.
Another letter from the school district to Kennedy arrived ahead of an Oct. 23 game. This letter credited him with no longer praying with his players in the locker room and only performing quiet prayer at the 50-yard line, but still stated that he should not publicly pray at midfield while on the clock as a public school employee. The letter suggested he instead pray in a “private location … not observable to students or the public.”
But Kennedy again went to the 50-yard line after the Oct. 23 game and, by himself, bowed his head and offered a “brief, quiet prayer.” This was “closer to what we want,” according to the district, but remained constitutionally impermissible.
After an Oct. 26 game, Kennedy once again went to the 50-yard line to pray. “While he was praying, other adults gathered around him on the field,” Gorsuch writes. “Later, Mr. Kennedy rejoined his players for a postgame talk, after they had finished singing the school fight song.”
“Shortly after the October 26 game, the District placed Mr. Kennedy on paid administrative leave and prohibited him from ‘participat[ing], in any capacity, in … football program activities,’” Gorsuch writes.
“In short, Mr. Kennedy did not seek to direct any prayers to students or require anyone else to participate. His plan was to wait to pray until athletes were occupied, and he ‘told everybody’ that’s what he wished ‘to do,’” Gorsuch states. “It was for three prayers of this sort alone in October 2015 that the District suspended him.”
After all, Gorsuch writes, “Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities … That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech.”
That is the story as Gorsuch and the majority tell it. But this tale is highly deferential to the story presented by Kennedy, the one that Judge Smith declared a “deceitful narrative.”
Sotomayor does not dispute the origin of Kennedy’s prayer. He started his prayers at the 50-yard line after he was hired in 2008. He didn’t ask his players to join him, but eventually a majority of the team did so. He then began to give motivational speeches with “overtly religious references” while holding his players’ helmets above his head, as players knelt around him.
Kennedy also began to lead prayers inside the locker room before and after games. Gorsuch described these prayers as a “school tradition,” but did not mention that this tradition was carried out solely by the players and not by the coach who preceded Kennedy. Sotomayor, however, notes that “students had prayed in the past in the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too.”
The school district learned of these prayers in September 2015. Gorsuch jumps immediately to the Sept. 17 letter after noting how the school learned of the prayers. This omits the fact that the school’s athletic director attended a game on Sept. 11 and “told Kennedy that he should not be conducting prayers with players,” according to Sotomayor. After the game and in front of the athletic director, “Kennedy led a prayer out loud, holding up a player’s helmet as the players kneeled around him.”
Kennedy then went on Facebook and posted that “he thought he might have just been fired for praying.”
Only after the athletic director’s request was so publicly flouted did the school send its Sept. 17 letter ordering Kennedy to cease praying. The letter still noted that “all District staff are free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.”
Kennedy “stopped participating in locker room prayers and, after a game the following day, gave a secular speech,” Sotomayor writes ― but he soon retained counsel who sent the Oct. 14 message stating the coach’s demand to pray on the 50-yard line.
When the school replied on Oct. 16, it rejected Kennedy’s demand to pray at the 50-yard line while noting that “Kennedy’s letter evinced ‘materia[l] misunderstand[ings]’ of many of the facts at issue.”
“For instance, Kennedy’s letter asserted that he had not invited anyone to pray with him,” Sotomayor writes. “The District noted that that might be true of Kennedy’s September 17 prayer specifically, but that Kennedy had acknowledged inviting others to join him on many previous occasions.”
Kennedy’s letter also asserted, incorrectly, that his prayers at the 50-yard line “occurr[ed] ‘on his own time,’ after his duties as a District employee had ceased.” The school responded that he “remain[ed] on duty … immediately following completion of the football game, when students are still on the football field, in uniform, under the stadium lights, with the audience still in attendance, and while Mr. Kennedy is still in his District-issued and District-logoed attire.”
The letter from the school district made no objection to Kennedy returning to the field to pray after his postgame duties were complete, when it “did not interfere with his job duties or suggest the District’s endorsement of religion,” Sotomayor writes.
Gorsuch mentions none of this history.
Additionally, Gorsuch claims that the school’s Oct. 16 letter failed to accommodate “Kennedy’s request to offer a brief prayer on the field while students were busy with other activities ― whether heading to the locker room, boarding the bus, or perhaps singing the school fight song.”
But Kennedy never clearly asked for accommodation at those times. He stated that he would be willing to pray “when the kids went away from [him],” but only later clarified under questioning in a deposition that praying “while the players were walking to the locker room” or “bus” was an approach that, according to Sotomayor, “would have been ‘physically possible’ and ‘possibly’ have been acceptable to him.” Furthermore, “he had never ‘discuss[ed] with the District whether that was a possibility for [him] to do’ and had ‘no idea’ whether his lawyers raised it with the District.”
Gorsuch does note that this claim of praying while players were “heading to the locker room” or “boarding the bus” came at a later date, but he omits any mention that Kennedy said that such a request had never been discussed with the school district.
After the Oct. 16 game, Kennedy went to midfield to pray while his players sang their fight song. There, he was joined by the opposing team’s coaches and players and surrounded by press. Gorsuch mentions that this “event spurred media coverage of Mr. Kennedy’s dilemma.” But he does not mention that “Kennedy himself generated the media coverage by publicizing his dispute with the District in his initial Facebook posting and in his media appearances before the October 16 game,” as Sotomayor notes.
“Members of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members,” Sotomayor writes. “After the game, the District received calls from Satanists who ‘intended to conduct ceremonies on the field after football games if others were allowed to.’”
Gorsuch, again, fails to note that student band members were knocked over as people rushed to join Kennedy on the field. He simply stated that “members of the community” joined him there.
The school’s Oct. 23 letter to Kennedy outlined how his promotion of his prayers was distracting him from his duties as head coach. As coach, he had “specific responsibility for the supervision of players in the locker room following games,” and “until recently, [he had] regularly c[o]me to the locker room with the team and other coaches following the game.” But his prayers and the media attention he sought out “drew [him] away from [his] work.”
The letter asked for Kennedy’s engagement as “[d]evelopment of accommodations is an interactive process,” but noted that any further violation of school orders would result in suspension and termination. Kennedy did not respond.
“Instead, his attorneys told the media that he would accept only demonstrative prayer on the 50-yard line immediately after games,” Sotomayor writes.
Kennedy then prayed by himself at the 50-yard line after the Oct. 23 game, and prayed with members of the public, including some state legislators, after a game on Oct. 26. Two days later, the school sent him a letter placing him on administrative leave.
After Kennedy’s suspension, former players came forward to say they’d felt “compelled to join Kennedy in prayer to stay connected with the team or ensure playing time.”
Gorsuch dismissed these assertions as “hearsay” that could have been “occasioned by the locker-room prayers that predated Mr. Kennedy’s tenure or his postgame religious talks, all of which he discontinued at the District’s request.”
Before Kennedy was fired, the school’s varsity head coach recommended Kennedy’s employment be terminated because he “failed to follow district policy,” “demonstrated a lack of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the school district” and “failed to supervise student-athletes after games due to his interactions with media and community.”
Gorsuch does not mention these reasons for Kennedy’s firing. He insists on only looking at the final three prayers, in separation from the entirety of the facts that led to Kennedy losing his job.
Sotomayor, however, connects Kennedy’s earlier prayers to his final three: “Kennedy, a school employee, initiated the prayer; Kennedy was ‘joined by students or adults to create a group of worshippers in a place the school controls access to’; and Kennedy had a long ‘history of engaging in religious activity with players’ that would have led a familiar observer to believe that Kennedy was ‘continuing this tradition’ with prayer at the 50-yard line.”
The fact that Kennedy had been leading prayers for his players at the 50-yard line for seven years ― and that when confronted by the school, he ran a public relations campaign to advertise his continued 50-yard line prayers, turning the school into a circus ― has no bearing on the case for Gorsuch or the other five conservatives. They have the votes, after all.