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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 opposite five conservative justices, overrules a 1971 decision that laid out how the federal government should act to maintain itself separated from the promotion of faith.

The choice accomplishes this by echoing the story told by Joseph Kennedy, a highschool 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 an image of a coach who only desired to conduct his own private prayer after his team’s games while looking for no attention from his players or the general public.

This story, nevertheless, “misconstrues the facts,” as Justice Sonia Sotomayor noted in her dissent. It buys hook, line and sinker what ninth Circuit Court of Appeals Judge Milan Smith, a George W. Bush appointee, declared a “deceitful narrative” when the case got here before him.

Gorsuch’s Story

Kennedy was fired from his job, Gorsuch writes, “because he knelt at midfield after games to supply a quiet prayer of thanks.” And he did so “while his students were otherwise occupied.”

Kennedy had a history of praying within the context of football games ― Gorsuch acknowledges that much. He began by praying “on his own,” but “over time, some players asked whether or not they could pray alongside him.” The variety of players joining Kennedy’s postgame prayers on the 50-yard line “grew to incorporate a lot of the team,” though it fluctuated from game to game. The coach then “began incorporating short motivational speeches together with his prayer when others were present.”

The team also sometimes engaged in pre- and postgame prayers within the locker room. These prayers were a “school tradition” predating Kennedy’s tenure, Gorsuch states.

In September 2015, the college learned of Kennedy’s prayers “after an worker from one other school commented positively on the college’s practices to Bremerton’s principal.” On Sept. 17 of that yr, the college superintendent sent a letter to Kennedy telling him to stop leading prayers within the locker room and on 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 hope on the sphere 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” on the 50-yard line.

“He ‘told everybody’ that it will be acceptable to him to hope ‘when the children 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,’ after which catch up together with his team.”

On Oct. 16, in a letter ahead of a game that very same day, the college replied. They said that Kennedy had complied to this point with their Sept. 17 request to stop praying on the 50-yard line and together with his players within the locker room. But they forbade Kennedy from “any overt actions” that would “appea[r] to an inexpensive observer to endorse … prayer … while he’s on duty as a District-paid coach.”

Gorsuch describes this letter as failing to accommodate “Kennedy’s request to supply a temporary prayer on the sphere while students were busy with other activities ― whether heading to the locker room, boarding the bus, or perhaps singing the college fight song.”

Former Bremerton High School assistant football coach Joe Kennedy takes a knee in front of the U.S. Supreme Court after the court heard his legal case, Kennedy vs. Bremerton School District.

Win McNamee via Getty Images

Regardless of the letter, Kennedy prayed, initially by himself, on the 50-yard line while his team sang their fight song. Nevertheless, members of the opposing team and other “members of the community” joined him on the sphere in quiet prayer.

“This event spurred media coverage of Mr. Kennedy’s dilemma and a public response from the District,” Gorsuch writes.

The varsity district responded by making robocalls to folks to inform them the sphere was off limits to anyone watching the games. They posted signs around the sphere with an analogous message, and got local police to forestall any incursions onto the sphere.

One other letter from the college district to Kennedy arrived ahead of an Oct. 23 game. This letter credited him with not praying together with his players within the locker room and only performing quiet prayer on the 50-yard line, but still stated that he shouldn’t publicly pray at midfield while on the clock as a public school worker. The letter suggested he as an alternative pray in a “private location … not observable to students or the general public.”

But Kennedy again went to the 50-yard line after the Oct. 23 game and, by himself, bowed his head and offered a “temporary, quiet prayer.” This was “closer to what we wish,” in response to the district, but remained constitutionally impermissible.

After an Oct. 26 game, Kennedy once more went to the 50-yard line to hope. “While he was praying, other adults gathered around him on the sphere,” Gorsuch writes. “Later, Mr. Kennedy rejoined his players for a postgame talk, after they’d finished singing the college 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 capability, in … football program activities,’” Gorsuch writes.

“In brief, Mr. Kennedy didn’t seek to direct any prayers to students or require anyone else to participate. His plan was to attend to hope until athletes were occupied, and he ‘told everybody’ that’s what he wished ‘to do,’” Gorsuch states. “It was for 3 prayers of this type alone in October 2015 that the District suspended him.”

In spite of everything, Gorsuch writes, “Kennedy’s actual job description left time for a non-public moment after the sport to call home, check a text, socialize, or engage in any manner of secular activities … That Mr. Kennedy selected to make use of the identical time to hope doesn’t transform his speech into government speech.”

Sotomayor’s Rebuttal

That’s the story as Gorsuch and the bulk tell it. But this tale is extremely deferential to the story presented by Kennedy, the one which Judge Smith declared a “deceitful narrative.”

Sotomayor doesn’t dispute the origin of Kennedy’s prayer. He began his prayers on the 50-yard line after he was hired in 2008. He didn’t ask his players to hitch him, but eventually a majority of the team did so. He then began to present motivational speeches with “overtly religious references” while holding his players’ helmets above his head, as players knelt around him.

Kennedy also began to steer prayers contained in the locker room before and after games. Gorsuch described these prayers as a “school tradition,” but didn’t mention that this tradition was carried out solely by the players and never by the coach who preceded Kennedy. Sotomayor, nevertheless, notes that “students had prayed prior to now within the locker room prior to games, before Kennedy was hired, but that Kennedy subsequently began leading those prayers too.”

The varsity district learned of those prayers in September 2015. Gorsuch jumps immediately to the Sept. 17 letter after noting how the college learned of the prayers. This omits the proven fact that the college’s athletic director attended a game on Sept. 11 and “told Kennedy that he shouldn’t be conducting prayers with players,” in response to Sotomayor. After the sport and in front of the athletic director, “Kennedy led a prayer out loud, holding up a player’s helmet because the players kneeled around him.”

Kennedy then went on Facebook and posted that “he thought he may need just been fired for praying.”

Only after the athletic director’s request was so publicly flouted did the college send its Sept. 17 letter ordering Kennedy to stop praying. The letter still noted that “all District staff are free to interact in religious activity, including prayer, as long as it doesn’t interfere with job responsibilities.”

Kennedy “stopped participating in locker room prayers and, after a game the next day, gave a secular speech,” Sotomayor writes ― but he soon retained counsel who sent the Oct. 14 message stating the coach’s demand to hope on the 50-yard line.

When the college replied on Oct. 16, it rejected Kennedy’s demand to hope on the 50-yard line while noting that “Kennedy’s letter evinced ‘materia[l] misunderstand[ings]’ of lots of the facts at issue.”

Justice Neil Gorsuch Justice Neil Gorsuch “misconstrues the facts” in his opinion in Kennedy v. Bremerton, in response to Justice Sonia Sotomayor.

Erin Schaff-Pool/Getty Images

“For example, Kennedy’s letter asserted that he had not invited anyone to hope with him,” Sotomayor writes. “The District noted that that is likely to be true of Kennedy’s September 17 prayer specifically, but that Kennedy had acknowledged inviting others to hitch him on many previous occasions.”

Kennedy’s letter also asserted, incorrectly, that his prayers on the 50-yard line “occurr[ed] ‘on his own time,’ after his duties as a District worker had ceased.” The varsity 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 remains to be in his District-issued and District-logoed attire.”

The letter from the college district made no objection to Kennedy returning to the sphere to hope after his postgame duties were complete, when it “didn’t interfere together with his job duties or suggest the District’s endorsement of faith,” Sotomayor writes.

Gorsuch mentions none of this history.

Moreover, Gorsuch claims that the college’s Oct. 16 letter did not accommodate “Kennedy’s request to supply a temporary prayer on the sphere while students were busy with other activities ― whether heading to the locker room, boarding the bus, or perhaps singing the college fight song.”

But Kennedy never clearly asked for accommodation at those times. He stated that he can be willing to hope “when the children 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, in response to Sotomayor, “would have been ‘physically possible’ and ‘possibly’ have been acceptable to him.” Moreover, “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” got here at a later date, but he omits any mention that Kennedy said that such a request had never been discussed with the college district.

After the Oct. 16 game, Kennedy went to midfield to hope 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 doesn’t 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 general public rushed the sphere to hitch Kennedy, jumping fences to access the sphere and knocking over student band members,” Sotomayor writes. “After the sport, the District received calls from Satanists who ‘intended to conduct ceremonies on the sphere after football games if others were allowed to.’”

Gorsuch, again, fails to notice that student band members were knocked over as people rushed to hitch Kennedy on the sphere. He simply stated that “members of the community” joined him there.

The varsity’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 within the locker room following games,” and “until recently, [he had] frequently c[o]me to the locker room with the team and other coaches following the sport.” 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 faculty orders would lead to suspension and termination. Kennedy didn’t respond.

“As an alternative, 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 on the 50-yard line after the Oct. 23 game, and prayed with members of the general public, including some state legislators, after a game on Oct. 26. Two days later, the college sent him a letter placing him on administrative leave.

After Kennedy’s suspension, former players got here forward to say they’d felt “compelled to hitch Kennedy in prayer to remain connected with the team or ensure playing time.”

Gorsuch dismissed these assertions as “hearsay” that would have been “occasioned by the locker-room prayers that predated Mr. Kennedy’s tenure or his postgame religious talks, all of which he discontinued on the District’s request.”

Before Kennedy was fired, the college’s varsity head coach really useful Kennedy’s employment be terminated because he “did not follow district policy,” “demonstrated a scarcity of cooperation with administration,” “contributed to negative relations between parents, students, community members, coaches, and the college district” and “did not supervise student-athletes after games as a result of his interactions with media and community.”

Gorsuch doesn’t mention these reasons for Kennedy’s firing. He insists on only taking a look at the ultimate three prayers, in separation from everything of the facts that led to Kennedy losing his job.

Sotomayor, nevertheless, connects Kennedy’s earlier prayers to his final three: “Kennedy, a faculty worker, initiated the prayer; Kennedy was ‘joined by students or adults to create a gaggle of worshippers in a spot the college controls access to’; and Kennedy had an extended ‘history of engaging in religious activity with players’ that will have led a well-recognized observer to imagine that Kennedy was ‘continuing this tradition’ with prayer on the 50-yard line.”

The proven fact that Kennedy had been leading prayers for his players on the 50-yard line for seven years ― and that when confronted by the college, he ran a public relations campaign to advertise his continued 50-yard line prayers, turning the college right into a circus ― has no bearing on the case for Gorsuch or the opposite five conservatives. They’ve the votes, in any case.

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