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Liz, Rebecca, Alison and Monica break down the latest case threatening the separation of church and state, Kennedy v. Bremerton, which involves a Christian high school football coach praying at the 50-yard line after games. The hosts review the facts of the case, outline what happened at oral arguments and make predictions on what this means for the rights of public high school students of minority faiths or no faith at all.
Background
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Liz Cavell: Welcome back to We Dissent, the podcast with four secular women attorneys discussing religious liberty in federal and state courts and our work to keep religion and government separate. I’m Liz Cavell with FFRF and one of your co-hosts
Monica Miller: And I’m Monica Miller with the American Humanist Association and also one of your co-hosts.
Alison Gill: Hi, I’m Alison Gill with American Atheists and also one of your co-hosts
Rebecca Markert: I’m Rebecca Markert with the Freedom From Religion Foundation.
Liz Cavell: So today we are discussing another case at the Supreme Court this term. It is called Kennedy versus Bremerton School District. And this is yet another case that is threatening to weaken the constitutional right to separation between church and state. And here is our big five alarm because it is about our secular public schools. So, we are going to kinda launch into this because we have a lot to say at all of three of our organizations, the majority of the work that we do really involves religion in the public schools and making sure that our public schools are secular and religion free, and that our public school students rights to freedom of conscience are protected. And there are decades of strong precedent in our federal courts that has really strongly secured public school students’ rights to secular public schools. And so this is another case in a trend of not good cases, but we’re gonna launch into it, try to explain what’s going on with the case, what’s at stake, and what to expect.
Rebecca Markert: Well, I’m gonna start with just by setting this scene here and discussing who is involved in this case. I like to always sort of explain who the parties are. So everybody kind of understands who we’re dealing with. So the petitioner in this case is Joseph Kennedy. He is the Bremerton High School assistant football coach, or was, he no longer works there. He was hired in 2008. What’s interesting about him is he’s never actually coached football before. And he only actually played this sport for two years when he was in the Marines. I just thought that was an interesting fact. It’s not really relevant to the case here, but fun fact.
Monica Miller: No, it’s interesting.
Rebecca Markert: He’s represented by First Liberty, which is an organization that we know pretty well with our organizations. They’re formerly known as the Liberty Institute, their headquartered in Plano, Texas. They have a tagline that is "religious freedom for all." And recently they’ve been running around claiming that they’re really in it for everybody’s religious rights they have on their website, every American of any faith or no faith at all, has a fundamental right to follow their conscious and live according to their beliefs, which is great in theory. But here are some of their representative cases <laugh> they are representing, some US Navy seals against the vaccine mandate requirements in the military. They are also the attorneys representing the parents in Carson v. Makin, which we discussed earlier on this show. They also represent Sweet Cakes By Melissa. She’s a baker in the state of Oregon who refuses to bake cakes for same sex marriage ceremonies. And of course, Monica, you know them because they are also involved with the Bladensburg cross case.
Monica Miller: That’s correct, they were my opposing counsel. And I think they changed names like during my case. And I was like, what is this during discovery. They were basically claiming that the Latin cross represented everyone, including Jews and Muslims and that they would easily defend this case if it were a Star of David, but yet they could point to no case of like the eons of cases they represented, where they actually defended a Jewish monument or a monument for another religion.
Rebecca Markert: And these list of representative cases that I’m pulling from their website. I mean, just go to show that they are representing Christian plaintiffs. I did not find any other plaintiffs listed from any other religion or no faith at all.
Liz Cavell: Oh, weird.
Liz Cavell: They were like on a full tear of defending Christian owned businesses that like want to discriminate against LGBT customers in violation of the anti-discrimination laws. That was their big crusade and have really recently latched onto anti-vaccine plaintiffs in the COVID era. So that is basically their religious freedom for all.
Alison Gill: It’s such a funny tagline too, because was saying religious freedom for all, but their definition of religious freedom is so pinched and like particular to their belief systems. That is the real problem right here. Their definition will just, freedom is just not one that’s well understood or accepted by everybody,
Liz Cavell: Right? Yes. Also their definition of all is problematic. Right. Okay. So let’s talk about First Liberty at SCOTUS.
Rebecca Markert: Yes. So they are represented at SCOTUS by Paul Clement. He is the one who actually argues the case in front of the Supreme Court. He’s a former US Solicitor general. He’s also known to argue these types of cases. He famously argued Hobby Lobby versus Burwell a number of years ago and actually that was the first case that he won at the US Supreme Court. Um, then on the other side is Bremerton School District, they’re in Washington state. And they are represented by one of our sister organizations, Americans United for Separation of Church and State. Many listeners probably are already familiar with this organization. It’s been around for a very long time. And another fun fact about that organization, it’s also run by a woman lawyer, Rachel Laser. We hope to have her on our show one day too. It was argued by their legal director, Richard Katskee, he’s a very experienced lawyer at Americans United and he has actually acted, I think, as a mentor to a lot of us here too.
Monica Miller: Richard is phenomenal. He really helped liaise a lot of the Amicus briefs in my SCOTUS case, him and Dan Mac. And I sent him an email, just, you know, telling he did great. And like I knew what that feeling was going into the Supreme Court with them wanting to overturn Lemon. Like, it’s not like, right. Your experience of like, like, oh, I gotta argue my first SCOTUS case is really dampered by like what SCOTUS has been since we both argued our cases and he kind of said something like, you know, something like a unique experience to have gone on that chopping block.
Liz Cavell: The firing squad, right?
Monica Miller: Yeah, exactly. It’s not like a fun day in court. It’s like, what is Alito gonna do?
Liz Cavell: And it’s not like, I wonder what’s gonna happen. It’s my day in court.
Monica Miller: Exactly. I wonder what’s gonna happen. No, it was just like, we know it’s gonna happen. How do we stop it from being like the most of a train wreck possible?
Liz Cavell: Yeah. Well, yeah. Richard did a great job and we’ll talk more about oral arguments later, but, that’s a good kind of basics on the parties, Rebecca. Thanks. And then we wanna talk about the facts of the case, like what happened in Bremerton, Washington to lead all the way up to the Supreme Court. And this is gonna be tricky because we need to talk about the alarming thing that happened to the facts in this case. And SCOTUS is going to be relying on completely fabricated facts that have kind of changed and morphed as First Liberty has kind of pushed this case through the Appellate Courts. So, when this case was before the Ninth Circuit, one of the Ninth Circuit judges, Judge Smith called it a deceitful narrative that was being put forth by appellate attorneys. And that was totally unsupported by the facts of the case that were found below in the district court and the actual real world facts that actually happened in Bremerton High School.
Liz Cavell: So we can just kind of go through some of these. So it’s, we’re kind of gonna do like a true versus false thing here because it literally is, what we’re gonna read in this final opinion is probably going to lay out some facts of the case that are actually just completely untrue. So yeah, the coach, Kennedy’s lawyers in front of the Supreme Court are alleging, and this is false, that his prayers were number one, that they were personal private, you know, by himself, just him kind of doing a personal little prayer by himself and that if any students participated that their participation was totally voluntary, that the school district basically was banishing his religious expression from public view, that’s a quote, basically pushing him to pray in private only, and kind of banishing him from the public square. That’s a favorite kind of narrative from our ultra conservative opponents. And then the other kind of false fact that has been spun is that his employment ended because of his religious practice, kind of implying, this is an employment discrimination action that he was fired because of his religious practice. And the truth of the matter was that he was placed on paid leave while the district tried to work with him to accommodate his outrageous demand to be able to pray on the 50 yard line. And what actually ended up happening is that after the school year elapsed his contract expired and he did not reapply, the real facts are actually wild because what happened was. I think there was actually a history, Rebecca mentioned that Coach Kennedy became the coach of Bremerton High School in like 2008. And I think there were several years there where he actually did pray privately before games or during games or whatever, whenever one has to pray for football. And then somewhere along the way, he decided that he wanted to pray on the 50 yard line. And the whole, obviously the whole point of that was at the end of the game when, you know, postgame speeches and, and huddles and, you know, good gaming with the other team takes place in the middle of the field, he was gonna go out there and hold up the team helmets and say a prayer and invite the other team’s players and his own players to join him. And there’s, there’s pictures of this online, you can see, and in the briefing, because it was like a big to-do as was the entire point of as one does, when you pray on the 50 yard line in front of like a stadium full of people, you know, that rubs some people the wrong way, because he’s a public school football coach and complaints, you know, came in and that’s when the school kind of started trying to work with him for a way that he could pray or fulfill his religious need to pray without violating the Establishment Clause on behalf of the district.
Rebecca Markert: And before this, he was praying in the locker room with the team as well. And he agreed that that was inappropriate, but he then came back and said, even after the school, tried to accommodate him and said that they would give him space elsewhere to do it, he needed to be on the 50 yard line. So this whole idea that it was private and, you know, for himself is just completely deceitful, like the Ninth Circuit judge said.
Alison Gill: Right. And at one point he went on television and invited people to join him. I mean, got progressively worse over time. It was not just one static thing to talk about with him. It just kept changing and growing.
Liz Cavell: Exactly.
Monica Miller: Yeah. And they kind of tried to couch it as like, you know, like the taint of the prior practice can’t like impede the court’s review of like this current one. And you’re just like taint of prior practice, that’s all he was doing was engaging other people in prayer. And up until like litigation is all of a sudden, like his private prayer. But like you said, like he was doing it before elsewhere. Like there was no need for him to be on the field in front of all these students.
Alison Gill: You can’t just select one day to say like, this is the day it was good and every other day was just an aberration.
Monica Miller: Right. Right. Exactly. Like it’s like the other days were not a taint, like this was his practice.
Liz Cavell: Right. Totally. And I mean, this will become, like, when we talk about what took place at the oral arguments, this was such a significant part of the discussion, which is really abnormal and deserves to be kind of called out for how bizarre it is to be like, relitigating the facts at the Supreme Court of the United States. Like the facts are the one thing that are supposed to already be found and static, and you’re arguing on like these huge points of law. And really what’s happening because this Supreme Court is just open for business, is litigants are coming up to the court basically being like, okay, well first I need to explain my alternative facts and then I will tell you what law to overturn or what, you know, freaking decades, long constitutional principle I would like you to overturn. And it’s really bizarre to kind of watch that play out at oral argument because there are some judges that are calling it out and there are some judges that are just sticking their heads in the sand and pretending that we all don’t obviously see the obvious facts that obviously happen.
Monica Miller: Yeah.
Liz Cavell: It’s so weird.
Monica Miller: It happened in my case, Justice Alito made up facts that weren’t in the record, like completely unsupported and they were proposed by the First Liberty people. I think it’s their strategy in a way, like Becket Fund would do this to our Pensacola case. They have this practice of introducing on appeal, like appendixes, like new records of evidence quote that were never introduced to the trial court. So in our case, they introduced like all these other parks and other monuments in Pensacola that weren’t on the trial court record and it was like 200 additional pages of appendix material. It was outside the record and the court accepted it. And like, that’s basically what happened at my Supreme Court level too. And I’m like, okay, so we’re not only just distorting the law, we’re just gonna be operating off of different facts. Like I wouldn’t have brought this case if it was those facts.
Liz Cavell: Right. And for all you non-lawyers out there who are like, what’s wrong with that? Or maybe no one would think that this is like not how it’s done. There’s kind of a process for appealing things through the courts and the whole premise of the, of the process is that the facts are found at the, at the lowest court level, because that is the court that is closest to the facts where there’s, where there’s the time and the opportunity for discovery and for fact finding to be put before the trial court, which in federal court is the district court. And so those facts are found by the court and it’s issues of law that are appealed, not like, you know, I thought of new facts and so I just need like another court to give me an opportunity to air them.
Alison Gill: The reason why it’s really significant in our issue area, especially though is because the conservatives are pushing more and more towards this historical sort of approach to what’s allowable under the Establishment Clause. Right. So, you know, if something was allowed historically, it’s allowed now, and then they can introduce all these facts from somewhere to establish this historical record. So that’s why it really matters for our issue area, more than others in some ways. Cause if you’re just allowed to introduce a whole bunch of new quote unquote historical facts, right. And that’s where the law is, then that’s, that’s really damaging.
Liz Cavell: Yeah. And I mean, the other thing that’s just like horrifying to us as lawyers is just, I mean, people may not know this, but it’s normally like a point of professional pride that you don’t like lie to court.
Monica Miller: Yeah. Right.
Rebecca Markert: It’s not just professional pride.
Liz Cavell: It’s just like–
Rebecca Markert: It’s an ethical law
Liz Cavell: Yeah. It’s also like super important.
Rebecca Markert: An ethical obligation.
Liz Cavell: Yeah. It’s important to the process as well. Yes, it is an ethical obligation. It’s kind of the one thing that makes the whole process, you know, it’s kind of like America right now. It’s like, if we’re not all playing by the same rules, then we’re not doing anything. We’re just like, nothing is happening. There’s just like cheaters winning. And that’s, what’s happening. It’s just like new facts being introduced literally at the Supreme Court level and lawyers being totally fine with, you know, like Paul Clement, just putting his, his professional patina on, what is really something that we should all be alarmed at because it’s not fair and it’s not true. This narrative that we, you know, that I just mentioned is not true. And the one that Rebecca kind of painted, which is like, actually, this has been his practice for all time. You know, he prayed with students in the locker room. He obviously thought it was part of his, or it should be part of his freedom as coach to pray with students or to encourage students at the very least to pray.
Rebecca Markert: It just goes back to that idea that if you tell a lie often enough and frequent enough, it just becomes the truth. And that’s essentially what Coach Kennedy is doing here. And like Alison mentioned this PR campaign that he underwent, as soon as he was told, we’re gonna accommodate you in a different way. And he was like, no, no, no, I want it to be on the 50 yard line and I want my rules to apply, not yours. And then he went on TV and started telling everybody that he was persecuted and look at what they’re doing to me. And he kept doing that out in the media that he got a whole bunch of journalists also sort of portraying that narrative. That like, look he’s being persecuted, he was fired for that when he was not actually fired. It got to the point that even the New York Times podcast, The Daily did an entire show on the oral arguments and the case and the reporter there, Adam Liptak actually bought into some of this stuff. Like he didn’t correct him when he said that he was fired, you know, the, the first like five or 10 minutes of that show was just this, like woe is me narrative for Coach Kennedy where like, they went through his entire, his entire personal history and all of the, the hardship that he went through. And then he finally became a coach and he was doing all these great things and then the evil school district came and told him he couldn’t do it anymore. And that’s also very upsetting. It’s not just that the courts are believing this, it’s the media and everybody, all of the messaging surrounding this case is just wrong.
Liz Cavell: It’s just wrong.
Monica Miller: Well, even circling back to the first premise that you brought up, that he wasn’t even like a lifelong coach. Like he just recently started coaching. So it’s not like he devoted his career to this like profession. It’s like, he was an inexperienced guy, he wanted to come pray with the students, he did pray with the students. He led this whole campaign and it’s not a small twisting of the facts, it’s a complete distortion of them.
Liz Cavell: Yeah. It’s a total revisionist history. And part of the thing that Rebecca’s alluding to on the, like the garnering of media interest, it was like a calculated campaign to drum up this sort of persecution complex in his local media. So as the school district is trying to accommodate him while he’s on paid leave.
Monica Miller:
Oh my god. <laugh>
Liz Cavell: Yeah, we can’t get that for women when we have babies, but it’s real important when you are negotiating how to pray on the 50 yard line with your employer. So as he’s on paid leave, he’s also going on TV to be like or maybe this was before he was on paid leave. When he’s negotiating with the district he’s saying things like, Hey, come out in October, such and such at the game, I’m gonna do this anyway and you know, it’s all for freedom. And also some state legislators are gonna be there praying. And so, you know, it created in addition to being like flagrantly unconstitutional and just like really in bad faith, it was and subordinate, it was also a zoo. It was just an absolute safety hazard because totally people were like, bum rushing the field, because he’s creating this whole spectacle. And it’s all about like, where do you stand in this controversy at the football game about the prayer? And so, I mean the different coercive pressures, like we’ll talk about later, but obviously this is not just a guy humbly trying to hang his head and pray for football.
Monica Miller: No, I’m really glad that we cleared those facts up and hopefully more people can listen and it I’d like to think that journalists are just being lazy and not like just taking sides completely. You know, but I don’t know. I mean, I feel like that’s kind of like defying their journalistic integrity by not, you know, looking at the record themselves rather than just taking Kennedy’s team’s word for it.
Alison Gill: Well, some of it has to do with the framing used by their side, which is really smart. I mean, they’re tar they’re, they’re highlighting this person who has this compelling story. They’re focusing on this story. And then the other side is the school district and you know, they’re a bunch of bureaucrats, right. So they’re trying to set up this little guy versus bureaucrat’s argument, right. And so it’s not surprising that media falls into that cause they always fall into it. Over and over again. Right. There’s actually a really great article, I think in Slate or Salon about this, this very issue with this case and how it’s representative of a lot of the attacks on, you know, government regulation.
Monica Miller: Interesting.
Liz Cavell: Right. It’s just this bizarre and we see it over and over again. And it’s so disappointing, like to hear this on The Daily, you know, it’s not like, I don’t know. It’s The Daily, it’s like I wanna listen to The Daily all the time and trust what it says and it’s just this totally bogus narrative. And it’s not just because you know, we’re annoyed with this case and what it’s poised to do. Like it’s literally false the narrative that like this is a case of persecution. I mean, it’s just, it’s so tired
Alison Gill: Actually, it’d be a good point to talk about the mootness because I think that’s a good point that’s not raised also. Cause that also feeds into the whole falseness.
Rebecca Markert: The thing about the standing argument in the mootness argument is that Coach Kennedy no longer lives in the state of Washington, he moved to the state of Florida and the attorneys for the school district did submit a brief to the Supreme Court, pointing that out. Like, Hey, we found out that he doesn’t live in the state anymore, he moved to Florida, he sold his house in Washington, bought a house in Florida, registered to vote there. They’re all over Facebook talking about how they are residents of Florida now. And that renders the case moot. There’s no reason for the court to look at this case anymore because he’s no longer there. And he responds by saying, well, I’m gonna move back if they give me my job back.
Liz Cavell: Right. And like the reason it’s moot is because the relief he’s asking the court for is his job back. His job back and also to be able to do his prayers on the 50 yard line, like he wants it all. But of course he’s not really in a position to like receive that relief because he no longer lives there, or anywhere near. He is like literally as far as you could possibly be from the Pacific Northwest in Florida,
Alison Gill: I think it’s like a $5,000 year job or something crazy like that.
Rebecca Markert: I was just going to say that. It’s a part time job and only pays $5,000. And to think that he’s actually going to move across the country for this $5,000 job is just laughable.
Liz Cavell: Right?
Monica Miller: And again, going back to the theme of like, if this weren’t a Christian plaintiff, if this were us, there is no question we would be kicked out on standing. Thinking back to the pledge case with Mike Newdow, where he was a father of a child in a public school district and didn’t have standing to challenge the pledge of allegiance because they didn’t want to acknowledge that there was religious language in the pledge. Like this man has no vested interest in the outcome anymore. Like according to article three, like it’s just infuriating.
Liz Cavell: Yeah. It is.
Alison Gill: It really shows that they’re going outta their way to take these cases. And I think, I mean, this goes back to what we were saying about the malleable facts in the case, like the facts are sort of whatever they want them to be. They’re going outta their way to take this case, even though it really shouldn’t be in the court in the first place. And I’d argued the third part of that trifecta and this came up in the oral arguments, maybe it’s a good tie to that. Was that his beliefs are whatever they need to be at the moment to get him the exact desired, exact desired relief. They are, my beliefs actually is I have to pray at the 50 yard line exactly. On at this exact time you can’t make any other accommodations. So it’s very, very gerrymandered and specific. So it’s just it’s I don’t know. It’s, it’s very frustrating.
Rebecca Markert: And back to what Monica was saying, if it were us, if it was an atheist plaintiff making these arguments to the court, we wouldn’t have our day in court. The court would definitely dismiss the case because we don’t have standing to sue anymore. And that is largely what the brief for Freedom From Religion Foundation and the American Humanist Association centered on was just the fact that the court is establishing these different tiers for standing. So atheist plaintiffs are not getting the same rights and privileges to get into the courthouse as Christian plaintiffs are.
Monica Miller: I got yelled at actually when I, so I just argued in the 11th Circuit Court of Appeals a couple weeks ago, I had a very conservative panel and these were plaintiffs that went to a prayer vigil, experienced the prayer vigil, lived in the town, were sent communications from the police department and they might lose on standing, even though these people had way more than direct unwelcome contact judge, Judge Newsom that was leading the panel and you know, to the other side, he was like, well, let me just play devil’s advocate. It’s like, no, your whole job is to be neutral to both sides. Like you’re not supposed to just play devil’s advocate with them and then ask me the real questions. I was like, you know, I implore you guys to consider this case as if it weren’t an atheist plaintiff and you know, some version of that. And then Judge Newsom was like, like, I’m gonna assume you didn’t mean us personally on this panel. And I had like a split second to decide if I wanted to like lean it into it or not. And I was kind of like, yeah, I did mean that like I did mean you guys specifically because I couldn’t, I just was so I was so jarred by the questioning. And it’s really with the Establishment Clause more so than the other provisions that are, you know, for more individual rights focused like you’re right to a jury trial or your right to, you know, these things the Establishment Clause is really like a <inaudible> against the government intrusion on religious things and also from encroaching on the freedom of conscious. And so when the government does that, it’s usurping its power, it’s taking it from the people. And so we should all be concerned. Republicans especially should be concerned because they’re ostensibly founded on the idea of like limited government and not having government overreach. But to me like the Establishment Clause, plaintiff is somewhat of a different posture than the others that they’re actually more like a public defender of the Constitution kind of doing a service that they should be thanked because we’re not getting money. They witness something that was a violation oftentimes it does cause real injury in the sense of like, you know, stigma and you know, emotional harm and things like that, that Christian plaintiffs are not dealing with because they’re not part of like the minority that is hated on in the Bible Belt.
Alison Gill: I think it’s a real problem that it’s not understood that the Establishment Clause also protects individual rights. Like it’s, it’s one of the major problem because it does right. It protects individual right just in a different way. Right. And it’s been recognized, you know, in the other context, but not for the Establishment Clause in, in a, especially by this most recent court.
Rebecca Markert: Well, and I think the rights of the students in this case are particularly lost because of the narrative that has been spun around Coach Kennedy and his persecution because he couldn’t pray at the 50 yard line. We’re really losing sight of the fact that this Establishment Clause and the law surrounding religion in the public schools is to protect the children from this influences from people who want to proselytize and you know, goes against the parents rights to direct the religious or non-religious upbringing of their children. And it really frustrates me that there’s one fact that I feel like didn’t get enough play and it’s that there were atheists, there was at least one atheist player on that team who said that they felt compelled to participate because he feared he wouldn’t get playing time if he didn’t participate in those prayers. And that those facts are lost is so upsetting because it really is like the court has always, I think Liz, you mentioned this in the Carson episode that the court has always jealously guarded the rights of school children because of who they are. They’re young and they’re vulnerable and they’re this captive audience and the state public school system is the biggest state machinery that we have. And the Establishment Clause is all the more important in this context. And we keep losing sight of those are the people whose rights we care about in this context.
Liz Cavell: So true.
Monica Miller: Richard Katskee brought up the case of Society of Sisters, something like that during oral argument. And he mentioned that to remind us that it’s also the parents’ right to raise their children according to the dictates of their own conscience. So it’s not just the student’s right. The other individual right holder would be a parent coaches don’t go to school to benefit themselves. They go to benefit the children that are there to learn. So to have the focus be so shifted on him and his right is really like you said, Rebecca, just really upsetting.
Liz Cavell: Yeah. This was a really good kind of pivot to the oral arguments and the issues that came up. But also before we dove into that, it’s important for us that we kind of do a really short crash history of Establishment Clause jurisprudence, but in the context of public schools and why, because of that history and tradition, this case is so important. So we wanna kind of just do a couple minutes on that before we jump into oral arguments and Rebecca already kind of alluded to this, but not just the Supreme Court, but all of the federal courts going back decades. And I, we calculated like at least 60 years, the earliest cases that were deciding some of these issues of public schools promoting religion. And as early as 60 years ago, the Supreme Court and the federal courts have been establishing this kind of hard line of strong separation between church and state in our public schools. And the reason that courts have always been really strong and hard on separation in public schools is because as Rebecca mentioned, there are several forces at play that make violations in public schools especially egregious and that make those concerns around, you know, how government employees and public schools are conducting themselves really heightens those concerns. And that’s because number one, public school or school attendance is mandatory. So, Rebecca said earlier, these kids are a captive audience, and yes, there are other attendant activities that are voluntary, quote, unquote, like football, but that the whole social experience of school that comes along with the mandatory attendance of school and for most kids public school, the whole kind of social experience includes all of these things that are only voluntary in the most, you know, pedantic sense. They’re not truly voluntary because kids want to have the full experience of school. They feel tons of pressures to engage in all kinds of activities that go along with school and those are school sponsored activities in any event. And then the other thing is school children are young, even high schoolers. They’re young, they’re vulnerable, they’re less wise to the ways of the world. So, you know, they’re less able to understand like nuance differences between something that’s school sponsored and something that’s not school sponsored. They are under the authority to an awesome degree of their teachers and their coaches and, you know, their band leaders and all of these adults in their lives that have so much power over them and their success and their futures. So anybody have anything to add to that before we kind of move on to oral arguments?
Monica Miller: I mean, I’m just wanting to underscore that the importance of this case is that those cases will potentially be upended. And we sort of see this as akin to like overturning Roe, but in our Establishment Clause area, because this is the cornerstone of our democracy, the Establishment Clause, and these precedents make up what the protection is of the Establishment Clause. So when you do away with those, you’re kind of doing away in large part with something that holds us together as a country. And so I think, yeah, the importance of this case and a few others that are, you know, on the chopping block or on the deciding block is, are really, can’t be understated, I guess, is what I wanna impart.
Alison Gill: And this is a little bit of a, I don’t know, deviation, but just before we get into oral arguments, because it’s not really discussed there, I did wanna also talk about free speech a little bit, just because this is a case that does involve some free speech issues. And one of the arguments that, Coach Kennedy brought up was that, you know, because this is religiously motivated speech, it’s entitled to a greater degree of deference or protection than other types of speech. So the idea that religiously motivated speech is worth more or should be better protected than other types of speech, which is not something that the Supreme Court has said. It’s been in concurrences, there was one from the Seventh Circuit that actually Justice, well then at the time, Judge Barrett joined onto, around this issue, but said, basically there’s a higher level of protection because it’s protected by both the Free Exercise and Free Speech Clauses, but that’s not something that the, the Supreme Court has ever signed onto and for good reason, because it undermines entirely the idea of freedom of speech. Like if some speech is favored over others, then you don’t really have free speech because it’s unworkable. You’d have to figure out, you know, what, what, what is the motivation of the speaker? First of all, you have to make that judgment and then say, okay, well, if it’s religious, they get this much power. And if it’s not, they don’t. So it just destroys the balance in free speech in the first place. So this was our Amicus brief at American Atheists. We talked about why religious speech should not get higher levels of protection and how, if it did, or it’s an unworkable system. And even if it was workable, somehow it would destroy, tt would be very disfavorably because the government would not be able to sort of regulate their own messaging. They would not be able to have a consistent message. It would change all the time, depending on who was in charge, they would not be able to administer programs. It would be not a world that would be functional, luckily that was not discussed during much during oral arguments.
Liz Cavell: Yeah. But I do think that was a really important point that your brief made, because it’s definitely, I don’t know how much it was like seized on in oral arguments, but definitely you heard counsel kind of falling back on this, the underlying speech arguments several times. And in a way that I thought was really bold, not the current state of the law kind of arguing the alternative for Coach Kennedy, which is like, well, you know, even if you don’t wanna overrule the whole like Establishment Clause, this speech is, you know, entitled to such heightened protection.
Alison Gill:
Yeah, he used the speech mechanism to get around like, oh, get to get around consideration of if this is coercive or not. Repeatedly. Like we can just ignore coercion and focus on the speech when we want to.
Rebecca Markert: Also focused on the Establishment Clause and the school prayer cases. But another sort of setup for the oral arguments is this idea that Coach Kennedy is a public employee. And when you work for the government you work for a school district, that’s part of the government. You accept that there are going to be certain limits on your rights, including your right to free speech. You cannot just say whatever you want when you are engaged in duties for your employer. And that is also an important piece to understand before we go into what they talked about at oral arguments.
Liz Cavell: And I mean, that makes you different than an employee that works at like the Apple Store or, you know, Jamba Juice, I don’t know why I’m saying this weird California thing. Whatever, like, you’re not that you, there are different things about your employment if you are a government employee who acts and speaks on behalf of your government employer. Why? Because there are certain things the government can and can’t do, because this is America and we used to have a bill of rights. So that’s important and also, it’s not just Rebecca Markert saying that, like, this has been the tradition of the courts both on, on speech, just government speech and how government employees can and cannot engage in government speech or how their employer can regulate their speech. And on the Establishment Clause side, as we talked about, there are just decades of case law going back that establish that teachers, coaches, school employees acting in their capacity as teachers or coaches or whatever are acting on behalf of the school district. They represent the school district. And that’s what reasonable students, you know, view their conduct and their speech as being that of the school. And there’s nothing really hard to understand about that. And it’s not particularly hard to parse. I mean, there have been cases, it’s been very fact dependent, and this is where, you know, the oral argument was kind of infuriating where it’s like, but what about this? In terms of hypothetical facts, but the reality is like, it hasn’t been that hard to like apply this idea of like, when is a government employee engaging in government speech, it’s kind of this, this thing. That’s, it’s really obviously like when you’re on the 50 yard line, like right after the game, when the coach normally like does a big postgame speech and you’re literally holding up the like, team helmets of the teams, like you’re still kind of in the middle of your job as coach, but yet we hear like, you know, so much just bafflement on behalf of some of the Justices when they’re trying to kind of parse this issue at oral argument. So let’s dive in oral arguments. What did you guys think? Did you love it?
Alison Gill: You know, it’s interesting oral arguments, as you were just talking about, they kept trying to just sort of bat away the actual facts, the conservative justices repeatedly, like–
Liz Cavell: Wait, the actual facts or the, the alternative facts, actual facts?
Alison Gill: Actual facts, not even engage with facts, engage with like hypothetical facts, what they make up. Like, let’s not talk about facts. Let’s talk, let’s make up our own facts as if we’re not doing that enough already in this case.
Liz Cavell: Right. They would be like, all right, alright, well, pretend it was the 50 yard line, but he didn’t go on the news. Right. Then what? You know, like kind of creating these, like, you know, cabined off versions of like how you could, like, what do you call it? Like legitimize, anything that Coach Kennedy did. Or kind of insulated from being government speech or something like that. Like there was just so much hypothetical talk and you’re right, Alison, not a lot of engaging on the facts, the actual facts.
Rebecca Markert: I thought one of the best lines of the morning was Justice Sotomayor. When she said, I don’t know of any other religion that requires you to get at the 50 yard line, the place where post-game victory speeches are given, what religion requires you to do it at that spot.
Liz Cavell: I love that.
Alison Gill: They responded by saying, well, that’s his religion.
Rebecca Markert: They absolutely said it was his religion.
Liz Cavell: Yep.
Alison Gill: But that’s, that goes back to my earlier point about the religious, I don’t know, gerrymandering, the religion is whatever it needs to be to fit the facts of the case, right. And I thought that was a really great way of pointing that out.
Monica Miller: And like the amount of work that I have to do to establish that humanism is close enough to a religion for like prisoners to be able to have humanist meetings on par with religious groups. It’s like, oh, I don’t know, like that doesn’t fit the model, even though it does because like it doesn’t have to be a religion, but yet he gets to rely on just his own word and oh, well, no, one’s challenged the sincerity of his beliefs. Are you kidding me? Of course they have, like half of this thing has been about, you know, he doesn’t have a right to, you know, like his belief about standing at the 50 yard line. It’s belied by the facts of him praying elsewhere for other times. So I don’ t even understand that point doesn’t seem true.
Liz Cavell: Right? No, one’s questioned the sincerity of his beliefs. And that’s the way of saying I’m really embarrassed by this.
Monica Miller: Totally
Rebecca Markert: Do you, but do you think that he was embarrassed? I think he was like, oh no, like certainly Justice Sotomayor you are not questioning his sincerity?
Monica Miller: I kind of heard it that way too.
Liz Cavell: Well, it was a little bit of that, but she was like, no fine, he has to thank God for the football, but why does he have to do it at the 50 yard line?
Monica Miller: And that’s why they brought up like the banishing to a closet or something. It’s like, what should he be banished to a hall closet to go pray?
Liz Cavell: Well, his, I mean, I thought Paul Clement’s answer to that. What you’re saying is totally embarrassing. But his, his only answer was like, well, yeah, it’s his religion, he felt compelled to do the prayer where the thing he was praying about happened. You know what I mean? It’s just kind of like stupid and embarrassing when you’re like a real serious person.
Alison Gill: Then why not the end zone? He wanted the end zone.
Liz Cavell: Well, that’s my point he’s and he’s comparing him so much to Tim Tebow and I just hate that so much.
Monica Miller: Tim Tebow thing was cracking me up. Because I was also just like, okay, that’s not government speech. That’s Tim Tebow. That’s the NFL.
Alison Gill: Right, he doesn’t work for school.
Liz Cavell: And you Coach Kennedy, sir are no Tim Tebow. And this is where it’s really hard for me because everyone knows that I am a University of Florida alum and a Florida Gator. And Tim Tebow was my only Jesus when I was in college. However, it’s just funny to me because it’s like, I’m sorry, is Coach Kennedy, the Tim Tebow in this analogy.
Monica Miller: No, he’s a coach that barely coaches, that’s making $5,000 and getting paid leave to create stir about his prayers. Like that’s it.
Liz Cavell: Right. It’s just like, I don’t, I still don’t understand that analogy. And it’s like, you know, when soccer players like do their little sign of the cross, when they do a goal, it just happens to be where they are when they do their prayer. It’s like, right but they’re playing, he’s not playing the game. He goes to the 50 yard line, he has to slowly walk out there or he probably jogs and waves out there to do his prayer. It’s just not, I just found that so silly, especially coming after Justice Sotomayor’s like deadpan, you know, version of the question.
Alison Gill: It feels like a religious dog whistle to me or something like that. You know what I mean? Like totally he’s analogous to this guy who’s pretty famous in these circles for doing something religious on the field. And that should be allowable because he did it.
Liz Cavell: And Tim Tebow, like conservative Christians love Tim Tebow. Sotomayor, as always, gets kind of most valuable question award. But it was just totally infuriating seeing the pivots from like, Paul Clement, just like refusing to engage in on the level. Like I say this, every time we record an episode, there was like, as always, kind of two levels of reality going on. And you know, most of the Justices are not on the level grappling with the real facts.
Alison Gill: What bothered me was that they were having this quibbling discussion about whether the word coercion was used in a letter sent to the person like years ago. Like that’s the sort of discourse on the one side. They have to be have all their Is dotted and Ts lined up to such an extent that they need to have like the word coercion in a letter or else they can’t talk about coercion in the case at the Supreme Court years later versus this coach who gets to just be freewheeling and make up his own facts whenever he feels like it.
Liz Cavell: I know it’s so fun. It’s so like punctilious and like, it’s just bizarre because it’s like, well, if you look back at the record, you never saw this. It’s like, what are you talking about? You’re literally just making stuff up. Let’s back up and explain what you’re talking about, because I think it’s really interesting. Like we have to kind of set up what are, where does all this endorsement coercion stuff come from and why is it so important?
Monica Miller: Sure. The endorsement test is a test that’s sort of born out of the Lemon Test, which is the primary test that’s using Establishment Clause cases that requires a secular purpose, secular effect and no religious entanglement along the way in the Supreme Courts, mostly school jurisprudence, the Santa Fe case, the court kind of merged the first two of those prongs, the purpose and effect prong, but to ask really what would a reasonable observer perceive that’s being done here? Would they perceive the school endorsing prayer or would they perceive something else? And so that’s kind of the endorsement test. I think Justice O’Connor might have been the one that kind of coined it, but it’s really still very tethered to the doctrine of Lemon and what the government can and can’t do. Just from a basic what the Gover, what the Establishment Clause prohibits. It prohibits the government from, you know, looking like it’s endorsing religion or sponsoring or promoting it. Then you’ve got the coercion–
Liz Cavell: Super simple.
Monica Miller: Super simple. And then coercion is really not, it doesn’t really have its primary home, even in the Establishment Clause. It’s kind of more of a Free Exercise Clause concept, which is that the government can’t coerce individuals into believing one religion or another. I mean, it clearly has its roots in the Establishment Clause as well. But as justices have noted before coercion became like the talking point of the Establishment Clause, it’s really just a shortcut way of finding an Establishment Clause violation because when the government endorses or sorry, when the government coerces individuals to participate in religion, it unquestionably also endorses that religion. It’s really hard to coerce without endorsing, but they’ve never seen coercion as like the main thing the Establishment Clause is guarding against because Free Exercise Clause kind of does that. So our opponents have been viciously trying to overturn the Establishment Clause as just like a concept. And they’ve been attacking it through the endorsement test in Lemon and saying that the Establishment Clause doesn’t even prohibit religious endorsement by the government and they wanna get rid of the Lemon Test. And so they’re really honing in on coercion because they want it to displace the regular test because coercion would be a higher bar for us to meet.
Liz Cavell: Right. That the only thing the Establishment Clause really prohibits is the government coercing in people into religious practice or whatever that, you know, it really doesn’t even mean that anything more than that while all these decades and decades of case law establishing that actually, and especially public schools cannot endorse religion, basically put their stamp of approval and you know, for all to see that they approve of or encourage certain religious practices or just religion in general that actually, you know, that shouldn’t be what the First Amendment, the Establishment Clause means. So Alison, you wanna take away what you’re talking about when you say Coach Kennedy’s attorneys are focused on this letter.
Alison Gill: It was one of the letters that they sent to the coach basically saying the school district sent to the coach saying, you know, please stop this behavior. You have been engaging activities that’s not allowed under the Constitution. We’re going to have to take steps here. And they focused a lot on like how this would seem like they’re endorsing improper activity that would violate the separation of religion and government. They don’t the, the contention to the other side is that because this focused on just endorsement, there was no argument that coercion was at play here. And so now years later, when they tried to talk about how the, his activity with both endorsing endorse Christianity and was also coercive and had a coercive impact, that that is not something that should be discussed, it’s not part of the record and therefore it’s just, you know, a pretext basically,
Liz Cavell: Right? So like in other words, like, because the district, the reason the district gave him,, the coach for why he had to stop his behavior or else was because it endorses religion in violation of the Establishment Clause and nowhere in that letter, did they mention it was coercive? So therefore like when you’re looking at whether or not this employment action was kosher or not just, you have to listen to what the school district said in their correspondence. Like don’t, don’t be thinking about coercion. Or whether his behavior was super coercive.
Alison Gill: Even though we know it was right, but that doesn’t matter.
Liz Cavell: Exactly. And that, and so that’s was really telling, because the obvious implication is like his behavior was hella coercive and we all know it. And that is a bad fact for Coach Kennedy and his attorneys. So like they really drove hard this argument that the only thing the court should be considering is what the district kind of raised as their concern. You know, when this was all taking place, which is endorsement. And I don’t even know how true that is. Probably not very,
Alison Gill: No, they pointed, I think Richard Katskee pointed a few places where they talked about coercion too, in an aspect, of course maybe they might not have used the word coercion, but they talked about the impact on students. So, and even still, I mean, these things develop over years of litigation and of course coercion is a concern, right? They might not raise it in a letter for various reasons because they might not wanna imply to the judge. I mean, to the coach that, oh, you’re harming students. It may not be the best way to reach him. That may not be the best way to convince him.
Monica Miller: So you’re so right. And that’s exactly what Richard was saying. There’s, there’s many reasons why you don’t put list all the things in an employment letter, like it’s an employment letter, so they could list one reason or several, like clearly they can’t list a discriminatory reason. But if they’re saying, you know, we have some endorsement concerns like that doesn’t mean that’s the extent of their concerns.
Liz Cavell: Yeah. There were definitely some justices that were just like, so happy to play dumb on this point and play along with this most notably and most infuriatingly, Justice Alito who just angrily, you know, went off on this, he was so concerned about this employment discrimination. And are you telling me–
Alison Gill: It’s not an employment discrimination case!
Liz Cavell: Right. No. And we don’t look at the reason why he was fired and he wasn’t even fired. So it’s like, there’s just, so you can’t even with, with Alito,
Rebecca Markert: Were you guys surprised though that Justice Kavanaugh was the one who brought up coercion and said, and also brought up the fact that like, Hey, these players felt like they had to participate or maybe they wouldn’t play next week.
Monica Miller: Yeah. And Kavanaugh particular, like he’s written into his decisions because I sort of studied them right before my SCOTUS case. Right. When he got like robed is like, he would write these dissents or concurrences like that were like, everyone has a right. You know, lik even atheist, like he wrote even atheist in a couple of his opinions about, you know, like what the First Amendment protects, but then he turns around and does the exact opposite. So like to me, the questions from him seemed like more of like a setup, if anything, or him trying to like be like, I am economical and care about other people.
Liz Cavell: So what he revealed in oral arguments was actually like just looking at the words of it and not being like a cynical jerk, was the crux and the most important like piece of this case, which is the, this just plain, like not BS discussion of how coercive the relationship is between coach and player in a public school. And like Justice Kavanaugh was momentarily kind of, I don’t know if he was playing devil’s advocate with himself but he was kind of revealing in his questioning of I think it was Paul Clement that like isn’t this coercive, no matter what, because like, and Clement tried to sort of say, well, we don’t, you know, even if you care about coercion, like you should only care about actual coercion. Like go find me a student who says they, he was coerced. Kavanaugh kind of said, well, here’s the thing, like you’ll never know about it because the coach will never like admit to favoring students who participate and students will never like have the guts to go against the grain when it comes to currying favor with the coach who controls so much of their lives at this stage when you’re playing high school football. And like, that’s the problem with his role as a public school coach, like he has such awesome power. But you know, he said that in the next breath, he said, listen, Lemon endorsement is over. It’s not a thing, we have never enforced it and never will again. So don’t even worry about that. Just talk to me about coercion and we’re supposed to be like, yes, Kavanaugh, you get us.
Rebecca Markert: Exactly. That’s what I thought as well. I mean, I thought, you know, oh, it’s interesting that he’s like picking up on this, but I know that what he’s really getting at is no you’re right, we do not wanna have Lemon anymore. And Gorsuch kind of also agreed with him later on where he was just like, yeah, we buried Lemon. And so like talk to me about endorsement and why we shouldn’t use that. But we want to, like Liz said earlier, to displace that with this coercion test and it made me think about what the opinion could possibly look like. I don’t believe that Coach Kennedy is going to lose, but it did make me wonder for a second. Like what if he, what if the school district wins, but coercion is the test and that’s the test for the Establishment Clause. Like, it looks like it’s a win for us, but it’s not really and that I think is something that could happen. I don’t actually think it will, I think in the end, you know, he’ll get enough votes for Coach Kennedy to win. But that was something that popped up when I was thinking about justice Kavanaugh, his line of questioning.
Alison Gill: I mean, it’s an outcome, us losing, you know, I hear you, but it is better outcome than, I mean, because at least his Establishment Clause means something at that point.
Liz Cavell: No, this is this, this is the state we’re in with so many of our cherished constitutional rights. It’s like, we’re just sitting here saying, what do you think the crumbs will be? Oh gee, I hope they’re big crumbs.
Monica Miller: I know, but it’s so true!
Rebecca Markert: What coercion is the test? If coercion is the test it’s for students, right? And in the public school context, I think then that like just really does limit us to like the Establishment Clause only has force in the public school context. I mean all other tests, other challenges that we have under the Establishment Clause are done.
Liz Cavell: I know.
Alison Gill: Or other areas where it’s coercive, maybe prisoners. I mean you could think of other areas where it’s coercive.
Rebecca Markert: That’s true.
Monica Miller: I mean, but you still would have to look at the facts of this. And like if this isn’t seen as coercive, like then what is? Because again, you’ve got a coach, a leader of a, of a student group, you know, in public, in uniform, like all of the indicia of school endorsement wrapped up in this. And so how could you not see this as coercive, if a prayer in like the Santa Fe case was seen then as coercive by a student.
Alison Gill: I wonder if he’ll just ignore coercion altogether and just not discuss it. And just try to take this other approach, like, and just ignore the issue and say, well, this is, you know, a free speech issue or it’s an issue of discrimination against him trying to, you know, it did not accommodate him
Liz Cavell: Kinda like a Masterpiece Cake Shop kind of situation? Where it was like "y’all were so mean to him."
Monica Miller: Yeah. Well that’s actually going back to–
Liz Cavell: You lose.
Monica Miller: Yeah. Liz going back to that. I mean, that’s what I was thinking with that letter, with the employment letter, like they dug so deep into the record. I actually remember listening to you give a talk about the, the Masterpiece Cake Shop and I think you were really like, how did they find this one piece of evidence like that shows discrimination? But like they went so far outta their way to find like some discrimination in like the administrative proceedings, you know, like to say a Christian was discriminated against, but here like the school is pretty clear they meant Establishment Clause, but they’re like, oh no, it’s not specific enough. The double standard just plays out across the board. Like in all these different little permeations, the Masterpiece Cake discrimination didn’t even make sense and yet that was like enough.
Liz Cavell: I mean, it didn’t really decide, it didn’t yield a decision on any of the like legal issues that were before the court. Really it just kind of left them all for another day while still saying, but you win Christian.
Monica Miller: Exactly.
Alison Gill: But it’s had a really significant impact. You can’t say Masterpiece besides the fact besides it, it still has an impact, like a really significant one on where we are with non discrimination law. Right. So, I mean, that’s the problem here is we’re just sort of, these cases are both saying nothing and everything at the same time.
Monica Miller: Exactly. I definitely think we’re gonna get some decisions in the concurrences about how Lemon is overturned and endorsement isn’t a test and the only test is coercion, whether there’s enough, you know, five votes for that view is I think where the concern is like we can rest assuredly.
Alison Gill: I think we’re definitely gonna get that at least. At Lemon.
Monica Miller: Well that’s a good question. I mean like, do we think this is gonna be the final nail in Lemon’s coffin?
Liz Cavell: Ohhhh, I was definitely getting those vibes.
Monica Miller: I was getting those vibes because there’s enough votes for it. Like I think for the first time isn’t there enough votes for it now?
Liz Cavell: Yeah, I think so. I think they, I mean, there’s definitely five, I would think.
Monica Miller: Yeah. I mean, at this juncture, it’s pretty much rendered. We’ve been grappling with it, you know, for the last couple years and we’ve basically been treating it like it’s there, but we know we have to go so much farther around the normal pleading requirements now. So it’s like, you know, I spent half of my 11th Circuit brief arguing why this prayer vigil violated the core principles of the Establishment Clause, you know, like rather than Lemon, because I don’t wanna stand there and have to defend Lemon to a Trump judge. So yeah. So it’s like, in some ways it’s like, we’re already kind of like shifting our focus just to accommodate the new conservative wave of thinking, but right. But at the same time, like having Lemon be dead could overturn tangible law, like tangible case law.
Alison Gill: But do any of us, we don’t, I mean, we don’t actually use Lemon all that much in our cases. At least we don’t all that much in our cases. Anyway, we don’t, you know, use it in cites and that sort of thing. So I’m wondering it being dead. Is that, does, how much does that impact us? Because it’s been dead for a long time in function. Well,
Liz Cavell: It’s not so much Lemon being dead. It’s like the extinguishing of all the principles that Lemon supports, you know, kind of and right. And, and like put into a test format. It’s like, they’re not just gonna be like Lemon’s unworkable, but you know, I love all the principles under it, let’s try to put that in a new format. It’s gonna be like, forget endorsement, forget promotion. You know, it’s nothing it’s coercion, but I’m wondering what you guys think. There was like a part where that’s a good point. Justice Gorsuch said, what do we do if we think coercion is just a test? And I was really happy that Richard got to say remand. Because you can’t decide that question. What do you guys think like is the likelihood of that or is that just dreaming? Well,
Monica Miller: Well, you know, I mean, I think–
Liz Cavell: Okay, fine.
Monica Miller: <laugh>
Liz Cavell: I mean you didn’t have to laugh in my face.
Monica Miller: No, I think, I think–
Alison Gill: Actually, actually this makes sense. Because they don’t, they don’t have to find for the coach or not. They could just say, you know, this is the test, we’ll send it back down. And that way they don’t, they don’t have to find against the coach, right? And that might be a way that they get out of finding against the coach and sending it, making the coercion, the test and sending it back.
Liz Cavell: Monica’s, actually Monica’s so right. That like the crumbs are terrible if coercion is the test, but Kennedy wins. Then it’s just like, that’s, that’s the, I mean, that’s just like awful because you can’t even be like, well at least we still have coercion. It’s just not coercing. I
Monica Miller: If this isn’t coercion–
Liz Cavell: Yeah like ride out on a white stallion, you know, to the 50 yard line and say, join me, my people. You know, it’s just like, it means nothing.
Monica Miller: Exactly.
Alison Gill: You’re right. You have coercion, but it’s meaningless because you can’t possibly be coercive for it to matter.
Liz Cavell: So I just kind of loved that Richard got a chance to say that like full throated, if you think coercion is the test, then the thing to do is to remand for the district court to decide this question because–
Monica Miller: We weren’t operating on that–
Liz Cavell: But like just a reminder, this is summary judgment and you guys should stop finding facts at the SCOTUS level.
Monica Miller: But I think also to his point, like that wasn’t the standard before, you know, like if you like, he doesn’t want to say like Lemon, I feel like he he’s trying to avoid even making it seem like Lemon’s on the chopping block because putting it there would make it there. You know? So I feel like he was trying to dance around that. But like without saying as much, like if they’re saying that there’s a new standard, a new pleading requirement, then that’s gonna make me have to look like shed new light on new facts, you know, like to meet this coercion standard. Um, yeah, I don’t know. I don’t know because I feel like Paul Clement’s response was like, they’re not gonna find new evidence on the record. Like they can’t rewrite that employment letter.
Liz Cavell: Predictions or final thoughts?
Monica Miller: The only silver lining I could think of is that hopefully a wider swath of America will be upset by such a ruling that they don’t want their, you know, kids being subjected to coach led prayers. But I don’t know. It’s hard, right? Trying to find a silver lining for this one.
Liz Cavell: We’re alarmed and we want you to be alarmed too, because this is so, so important that like when your kids go off to school and participate in public school football that like, they don’t feel pressured to conform and join prayer circles. And like just by virtue of your coach doing that, that’s the coercion right there. It’s like, I’m going to do. And Richard brought this up too. It’s like, if there’s an optional training workout every Wednesday morning, you can bet that like every player’s gonna be there because you want the coach to see you doing the things that the team does. And so it’s alarming.
Alison Gill: And this is not just about football either. This will extend to public schools in general. So let’s keep that in mind as well. Right? It’s not just about football. So this, whatever happens here, it has gonna have an impact on everything else.
Monica Miller: That’s so true. Teachers, teachers like every single public school teacher now would be operating under a new standard of what coercion is. And you can bet they they’ll be praying in the hallways and before classroom start, you know, class starts, but like right when the students come in, you know, like I just feel like it’s gonna widen that too.
Rebecca Markert: It’s also not just about prayer either. We see baptisms in high school football and religious clubs and things like that. It’s going to have wide impact.
Liz Cavell: Just like religious grooming. And like this is not for public schools. This is for parents to decide whether and how their children are exposed to religion, not public schools.
Monica Miller: Absolutely.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists and the American Humanist Association. It is hosted by Liz Cavell, Alison Gill, Monica Miller and me, Rebecca Markert. Other production support comes from James Phetteplace and Greta Martens. Audio engineering is provided by Audio for the Arts in Madison, Wisconsin.
Thanks for listening.
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