Thursday, April 28, 2022

Part I

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Is it Unconstitutional for a High School Football Coach to Pray on the Fifty-Yard Line After a Game? Coach Kennedy Gets His Day at the Supreme Court

The Supreme Court of the United States became the ground for a very important set of arguments on Monday. Oral arguments were held in a Supreme Court case having to do with a former high school football coach in Bremerton, Washington, as he’s filed suit against that school district for infringing upon his own religious liberty, his own right to pray by basically terminating his employment as a high school football coach, because at the end of games, he went to the 50-yard line and prayed and he was often joined by students, and as it turned out, by a good many others as well. The school board saw this as a great offense, claimed that it was an unconstitutional establishment of religious exercise, and thus took the action against the coach.

The coach, a former Marine, decided that he would eventually take action against the school system and he did so in the courts, and that landed before the Supreme Court of the United States on Monday. The arrival of this particular case at the Supreme Court was not uncomplicated nor was it at this point unexpected. Coach Kennedy, as he is known, that would be Joseph Kennedy, the former coach for the Bremerton, Washington High School, varsity and Junior Varsity football teams had lost his case at the Ninth Circuit. It had gone through the federal court level, and then it had gone to the Ninth US Circuit Court of Appeals. Some of you will know almost immediately that the Ninth Circuit has been in recent decades infamously America’s most liberal appellate circuit in the federal courts.

It’s very interesting to see even how this case is in summary introduced in the national media. Nina Totenberg, a very well-known reporter covering the Supreme Court for decades at National Public Radio began her report this way, “The US Supreme Court jumps back into the culture wars in a case that involves a football coach’s asserted right to kneel and on the 50 yard line at the conclusion of a public school football game.” Lawrence Hurley and Andrew Chung reporting for Reuters said it this way, “The US Supreme Court’s conservative majority appeared sympathetic towards an appeal by a Christian former high school football coach in Washington state, who was suspended from his job for refusing to stop leading prayers with players on the field after games.” After the oral arguments, veteran Supreme Court reporter Adam Liptak of the New York Times summarized it this way, “The Supreme Court’s conservative majority seemed to be searching for a narrow way to rule in favor of a former high school football coach who lost his job for praying at the 50 yard line after his team’s games.”

The Reuters report got at least this much right when the reporters tell us, “The issue is whether as a public employee Kennedy’s prayers and Christian infused speeches alongside players amounted to governmental speech, which can be regulated under Supreme Court precedents or a private act separate from his official duties, which the First Amendment would protect.” Coach Kennedy’s case which may well now set an important precedent was taken up by First Liberty Institute and its attorneys Kelly J. Shackelford and Jeffrey C. Mateer. Coach Kennedy was represented before the Supreme Court in the argument itself by Paul D. Clement, who was counsel of record. Paul Clement is one of the most experienced Supreme Court litigators currently alive in the United States today. He opened his case by setting the issue clearly.

Addressing the justices, attorney Clement said, “When Coach Kennedy took a knee at midfield after games to say a brief prayer of thanks, his expression was entirely his own. That private religious expression was doubly protected by the Free Exercise and Free Speech clauses. When the school district fired him for that fleeting religious exercise out of endorsement concerns, it not only violated the First Amendment, but it ignored a veritable wall of this court’s precedence that make clear that a school does not endorse private religious speech just because it fails to censor it.” The back and forth between the Supreme Court justices and the attorneys arguing both sides of the case sometimes came down to disagreements over the basic facts in the case. But the basic facts at stake here are abundantly clear, and that is that this school district took action against this Christian coach because he had engaged in prayer at his own initiative, he had done so on the football field and eventually had allowed students and others to gather with him.

The school district basically claimed that represented an official government sponsorship or endorsement of that prayer and thus it was unconstitutional, the coach must cease the practice. When the coach made clear that his own Christian conviction would incline him to pray and that he had a religious liberty right to pray, the school went so far as to suggest that it might be permissible if he would pray but out of sight of students. In other words, that it would be something that he would have to hide as if basically ashamed of it or the school district ashamed of it. It is interesting to know that attorneys for the school district trying to justify the termination of the high school football coach said that the ground of the termination had shifted to the fact that there were students who felt that they had been coerced into participation simply because the person who had initiated the prayer was a coach who had vast power over student athletes.

But as Mr. Clement pointed out to the Supreme Court justices, the school district had actually terminated the coach based upon the endorsement grounds. That was it, the other grounds were basically added later. By the time the oral arguments were concluded on Monday, even most in the mainstream media had come to the assumption, giving witness to what had taken place between the justices and the attorneys, that the coach was likely to prevail in terms of his claim against the school district. The question might come down to just how sweeping an eventual decision might be, what kind of precedent might be set.

There are several things I want us to consider here. There are issues that were not largely considered by the mainstream media nor by even many in the religious press, but I want to draw attention to them. For one thing, as I looked at the filings in this case, even before the oral arguments were held, I was actually shocked, very shocked at one development. In the written brief submitted to the Supreme Court prior to the oral arguments, the main lawyer, the council of record in this case representing the school district was not an attorney in Washington State, but rather an attorney by the name of Richard B. Katskee. He was listed as counsel of record and Bradley Gerard was listed also as an affiliated attorney. Both of them are actually with the organization known as Americans United for Separation of Church and State.

Now what so caught my attention there was the fact that you would think that in this context, the school board would try to be presenting itself as a disinterested party just trying to do its job, not trying to take a position on these big constitutional questions, but that is contradicted by the fact that the school board actually turned to very ideological attorneys in order to represent them even, or you might say, especially in the oral arguments before the Supreme Court of the United States. So let’s ask the question, what is this group known as Americans United or as Americans United for Separation of Church and State? Is it the separation of church and state a good thing? Isn’t that just basic to our constitutional order? Wouldn’t an organization that goes by the name Americans United for Separation of Church and State just be trying to uphold some of natural constitutional balance?

Well, by the fact that I’ve raised it, you figured out there indeed is a lot more to this story. For one thing, the original name of this organization was not just Americans United, much less Americans United for Separation of Church and State, it was actually going back to 1947 and 1948, Protestants and Other Americans United for Separation of Church and State. And make no mistake in this context, Protestant meant not Roman Catholic and in particular, not Roman Catholic when it meant that parochial schools might receive, or for that matter, students in Roman Catholic schools might receive some kind of support from any level of government when it came to paying for what the organization would’ve decried as parochial or religious education.

The group Americans United actually started out with a very clear, very Protestant identity. Again, unashamedly at the time, this meant anti-Roman Catholic and it came in the background of a great debate between many Protestants on the one hand and Roman Catholics on the other about the proper relationship of the church to the state. The Catholic church, especially pre-Vatican II, was far more in favor of direct state support of religious interests, or in this case specifically Roman Catholic schools. But there’s much more to the story, and at least part of the story has to be that during the very same period, say the second half of the 20th century, many Protestants moved in a far more separationist direction claiming the authority of the Establishment Clause in the U.S. Constitution. That is the clause in the First Amendment against the national government establishing a state church as requiring an absolute separation, an absolute wall of separation, to use the metaphor that was borrowed from Thomas Jefferson, between church and state.

And what this meant in act was that the Supreme Court and cultural elites in the United States, particularly those of liberal Protestantism moved into a posture of opposing any religious manifestation in public claiming that it represented some form of an establishment of religion. In particular, they were pressing for A very secularist and secularistic understanding of the role of the national government. And you saw an entire series of decisions handed down in which it became very, very difficult for religious believers of any form, but Christians in particular, to operate as Christians when there was any contact whatsoever with the government. As in the public schools, where of course you had not only official school prayer ruled unconstitutional, but eventually as we just saw in this case. You had a high school football coach terminated because even after the game, in an entirely voluntary sense, he went and knelt and prayed at the 50-yard line. He was sometimes joined by students, and thus, according to this secularist understanding of the constitution, that very clearly indeed ardently put the Establishment Clause as supreme over the Free Exercise Clause of the Constitution.

What you saw was the fact that a sterile public square was what was insisted upon by so many in the cultural elites. And let’s just face it, we’re looking in the year 2022 at a situation that is far more advanced in cultural secularism than anything that could have been imagined all the way back, say, in 1948 when the group that these lawyers represent was actually organized. The group that now goes by the name Americans United is decidedly secularist, if not in the religious affiliation of all of its personnel, it is in terms of its arguments and it is certainly in terms of the effect of those arguments. Americans United basically demands a public square in which no one at any time would have to confront any religious claim or even see any religious practice that might have anything to do with public territory, public property, public facilities, public campuses, public schools, you go down the list. It eventually got a high school football coach on the 50 yard line after a high school football game.

Just after the oral arguments on Monday, the Americans United president and CEO, Rachel Laser, released a statement in which she said, “If the Supreme Court gets this case wrong, we could witness the greatest loss of religious freedom in generations.” She continued, “We’re on very dangerous ground. If the court is considering overturning decades of established law that prevents government employees from pressuring students to pray in public schools. The facts of the case, the laws of our country and religious and non-religious Americans alike are on the side of protecting students’ religious freedom.” But notice, this is a claim that the religious interests of students, the religious liberty interests of students would prevent a coach from praying on the 50 yard line even if none of them were involved, even if there was absolutely no coercion for students to participate at all. Here you see the secularist agenda, religious liberty is simply redefined as something that should prevent anyone who might not want to see or to witness any religious act or confront any religious message.

It is basically the claim that religious liberty means that at least in the public square, religious liberty comes down to never having to see anyone or observe anything or hear any message that is religious. At least to our relief, we should note that a majority of the justices of the Supreme Court didn’t seem to be buying that argument at all.

Part II

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Secular Purpose, Secular Effect, No ‘Excessive’ Government Entanglement? The Supreme Court’s Broken ‘Lemon Test’ Needs to Go

But that leads to another big issue that we really need to confront. And at least three points in the oral arguments, the issue of a lemon test came up. Now that might sound like something that should have to do with a used car a lot, but it actually is very important as you think about American constitutional law. There’s a history there that I think you’ll find very interesting.

We go back to the early 1970s, because in 1971 the Supreme Court of the United States handed down a decision in a case known as Lemon v. Kurtzman. It had to do also with religion in the public square. Writing the majority opinion in that case was the then chief justice of the United States, Warren Berger. Warren Berger basically set down a three-pronged test. It became known as the Lemon Test because the original name on this case was Lemon, as in Lemon v. Kurtzman. The Lemon case came down to the fact that the Supreme Court, in this case, ruled that a law in order to pass constitutional muster must begin with a secular purpose. It then must have at least primarily a secular effect. And third said the Chief Justice, “It cannot foster what might be defined as an excessive governmental entanglement with religion.”

So, number one, it has to start with secular purpose. Number two, at least the primary effect has to be secular, and then there can be no excessive government entanglement. But wait just a minute, how exactly would you make that judgment? When you think about, for example, secular purpose, how exactly do you know the actual purpose or every purpose behind any law, any act, any regulation? How do you know exactly what is the primary effect or perhaps even the intended primary effect and who decides whether it’s secular or not? It was the chief justice in that 1971 case who rather creatively added the third test here, that excessive government entanglement.

Well, the word excessive there just again points to the fact that’s a comparative word and that’s a rather elastic word. What in the view of one might be excessive might in the view of another not be excessive. The first two principles had gone all the way back to the Everson case in 1947, but by the time you got to the Lemon Test, it became so familiar in United States constitutional law, that it basically gave an opportunity for court after court to issue ruling after ruling that began to conscribe religious liberty in the name of protecting the Establishment Clause of the US constitution.

It became a great engine for the secularization of this country, often by court decision, if not court order. The issue of the Lemon Test came up with Justice Neil Gorsuch, addressing a question to Paul Clement, attorney for Coach Kennedy. He went on to say that he believed that attorney Clement was actually arguing that the Lemon Test “was a mistaken test and a mistaken way to think about what the Establishment Clause requires.” Just shortly thereafter, Justice Brett Kavanaugh picked up the same argument going on to say that he actually doesn’t believe that the Lemon Test is a test in “our case law anymore.” He asked Mr. Clement, “Is that correct?” And the attorney responded, “Sure, but it’s a stubborn fruit and I don’t think just pushing a pencil through it has done the trick.”

In other words, Mr. Clement was saying what Justice Kavanaugh had implied, which was that the Lemon Test is not only out of date, it was wrong in the first place. The court has not even applied it of late and as attorney Clement said, it’s not enough just to say that the test doesn’t appear now to be mandatory the court should just come right out and say that the Lemon Test itself is wrong. Later in a retort with the attorney for the school district, Justice Neil Gorsuch asked the question, “Would it be overruling Lemon not to apply it since we haven’t applied it in, I don’t know, 20 or 30 years?” The justice went on later to say, “We’ve been asked too many times, that is, to apply it and we haven’t done it in 20 or 30 years,” he said. Now I’ve given this particular case and these oral arguments so much attention because I do believe the stage is set for this case to be one that will establish a precedent.

In any event, it’s going to have a huge impact in one school district and in the life of one former high school football coach, but all likelihood, it points to something far larger and this is what we need to recognize. Over the course of the last several decades in the United States, there has been an increasing cultural hostility to religious expression in the public square. The cultural left has wanted to marginalize religious expression at least to make sure it doesn’t take place outside of some kind of private domain. It should have no role in American public life, but just to closely look at American history, including the practice of our constitutional founders and framers indicates that lacks intellectual credibility. Furthermore, it basically establishes secularism as the national religion. The strict separationist position is impossible and implausible. It will basically lead to the fact that there will be no religious expression, as one New York Times columnist said, “outside individual hearts, private homes and churches.” But that is not religious liberty, that is not consistent with the religious liberty interest that is guaranteed in the First Amendment to the U.S. Constitution, which is often referred to as the Free Exercise of Religion.

Furthermore, it is a direct denial of the fact that some religious worldview is going to be present in every society, even in atheistic worldview is in its own way a religious worldview. We should be hoping for the Supreme Court to rule in favor of Coach Kennedy. Furthermore, it would be in favor of religious liberty and the free exercise of religion, but we need to also hope that the Supreme Court will just officially just come out and say that the Lemon Test is no more. It’s not enough for even two justices to say, “I don’t think it is a test anymore because we haven’t applied it to in 20 or 30 years.” It is in a standing Supreme Court decision, and now the Supreme Court has the opportunity and the responsibility to come out and officially for history’s sake and for the sake of our constitutional order set the record straight.

Now you understand why this case that the press will say is about one former high school football coach and one school district in the State of Washington really turns out to be about more, indeed about a lot more.

Part III

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A Look at the Pro-Abortion Effort to Intimidate the Supreme Court — Abortion Supporters Fear What’s Coming from the Court this Term

Finally today, of course, we are looking for the Supreme Court to hand down its ruling in the Dobbs Case concerning abortion coming out of the State of Mississippi. This is the case that more than any other thus far presents the court with the opportunity and of course I would argue the responsibility to reverse the infamous 1973 Roe v. Wade decision.

But a very important statement came from the editorial board of the Wall Street Journal yesterday. And it’s important to recognize this is not just an opinion piece written by a columnist, this is a statement from the editorial board of one of the nation’s most important newspapers, but this editorial will set it far apart from what you’re going to see from the editorial board of most American major newspapers.

Most of those papers are very liberal, if not beyond liberal actually, in terms of the characterization of their worldview. But it’s important to recognize that in Wednesday’s print edition of the Wall Street Journal, that newspaper ran an editorial entitled, “Abortion and the Supreme Court.” And in it, the editorial board called for the Supreme Court to muster the courage to reverse the Roe v. Wade decision and to send the issue of abortion to the states. That would be the effect of reversing Roe v. Wade. But there’s something else that’s very important in this editorial in the Wall Street Journal, the editorial board is addressing the Supreme Court itself and is acknowledging the fact that the left and the pro-abortion movement has been running a sustained campaign to try to intimidate the justices on the court from taking the action of going so far as to reverse Roe v. Wade, and in that case to act honestly.

Those who are the proponents of abortion rights are doing their best to try to intimidate the court and failing that to contextualize any ruling from the court as being brought about as an act of political extremism. The editors of the Wall Street Journal aren’t buying it, they wrote, “The Supreme Court will soon decide an abortion case in which Mississippi is asked the justices to overturn Roe v. Wade. The oral argument suggested that five justices lean toward doing so, but a ferocious lobbying campaign is trying to change their minds.” The next sentence, “The campaign may be the most apocalyptic in its warnings since the Obamacare Case in 2012.” The editors then cited many mischaracterizations of the case before the court and then they summarize with these words, “All of this is aimed at swaying the justices to step back from overturning Roe v. Wade and Planned Parenthood versus Casey, because the political backlash against the court will be ferocious.”

The editors then went on to say this, “The particular targets,” and by that they mean of the intimidation campaign, “are justices Amy Coney Barrett and Brett Kavanaugh, which the editors acknowledge are the two most recently confirmed justices.” The editors understand full well and we had better all understand similarly that if the Roe v. Wade and Planned Parenthood versus Casey decisions are reversed, it won’t mean that abortion is illegal all across the country. It would return the question to the states and the states would be just about evenly divided in terms of what we know right now about the direction of abortion legislation state by state. The question would return to the states and there it would enter into democratic process, and in that process, both sides would have to make their argument. The point is that the Supreme Court of the United States in 1973 use up to the question, taking it away from the legislative process.

And even as we recognize that the reversal of Roe v. Wade will not mean less work for pro-life Christians but more work; it’s holy work, it’s important work, and it’s work that we are eager to do. We will not be able to rest until every unborn child is protected and every human life from the moment of conception until the moment of natural death is respected and honored and protected.

Reversing Roe v. Wade will not be the end of that story, but it is an extremely important indeed essential chapter in that story and it’s high time for the Supreme Court to do the right thing and bring that long, sad chapter of Roe v. Wade to an end. So we believe, and so we must pray.