Tuesday, June 28, 2022

Change The Facts, Change The Outcome

Or change the facts to suit the outcome.

Gorsuch says the coach "knelt at midfield" after games "to offer a quiet prayer of thanks."  Which seems innocuous enough, right? 

Alito says "a brief lull in his duties apparently[? There is an evidentiary record.  You don't know when or why he did this?] gave him a few free moments to engage in private activities."  Because of these "few free moments," what he was doing was done in "a purely private capacity."

Remember, children:  definition is everything.  

But did it stay that way?

Kennedy's practice evolved into postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with "overtly religious references, which Kennedy described as prayers, while the players kneeled around him. 

It's probably an Oxford comma issue, but I'd really prefer "knelt" there.

Change the facts, change the outcome.  And the first question is:  who changed the facts here?  But we aren't through yet:

In September 2015, a coach from another school's football team informed BHS' principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team's coach told the principal that he thought it was "'cool'" that the District "would allow [its] coaches to go ahead and invite other teams' coaches and players to pray after a game."

Private capacity?  Quiet prayer of thanks?  Lull in his duties?  Where did all that go?

That's the Supreme Court opinion.  The appellate court noted petitioner was just a liar:

Don't know where that record of the “deceitful narrative” went, either.  You'll also notice Judge Smith rides that point hard; very hard:

In his statement, Judge O'Scannlain omits most of the key facts in this case, reorders the chronology of events, and ignores pertinent Establishment Clause law, much of which has been in place for more than half a century.

Let me just quote a bit more extensively from Judge Smith's opinion:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false. Although I discuss the events in greater detail below, the reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers. In fact, the record shows clearly that Kennedy initially offered silent, private prayers while on the job from the time he began working at BHS, but added an increasingly public and audible element to his prayers over the next approximately seven years before the Bremerton School District (BSD) leadership became aware that he had invited the players and a coach from another school to join him and his players in prayer at the fifty-yard line after the conclusion of a football game. He was disciplined only after BSD tried in vain to reach an accommodation with him after he (in a letter from his counsel) demanded the right to pray in the middle of the football field immediately after the conclusion of games while the players were on the field, and the crowd was still in the stands. He advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result. As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media.

That highlighted bit is a rebuke to Justice Kennedy, who clearly seems to prefer his own facts over the ones presented in the trial record.  Appellate courts do not sit as finders of fact; they are to take the record before them as the facts to which the law must be applied.  I strain to find anything in this record which allows for a wholesale overthrow of precedent but, there we are.

When Joseph Kennedy was hired by BSD in 2008, his post-game prayers were initially silent and private. Kennedy v. Bremerton Sch. Dist. (Kennedy IlI), 991 F.3d 1004, 1010 (9th Cir. 2021). [That citation means this information comes from the trial record.  That's no small thing on appeal.] Over the ensuing years, however, Kennedy made it his mission to intertwine religion with football. Eventually, he led the team in prayer in the locker room before each game, and some players began to join him for his post-game prayer, too, where his practice ultimately evolved to include full-blown religious speeches to, and prayers with, players from both teams after the game, conducted while the players were still on the field and while fans remained in the stands. Id.
Was this noticed by the Supremes?  Yeah, I think so:

A reminder courts can pretty much do whatever they want once they toss the facts aside.

That picture is what Alito calls acting "in a purely private capacity."  I wonder how many of us could go down to mid-field after a school football game and offer a religious ritual?  Purely privately, you understand.

By the way, the record from the trial court, quoted extensively in Judge Smith's opinion (at the link in the tweet) shows the coach made a very public figure of himself to arouse support for his prayers at midfield.  One wonders how "private" the practice was at that point, when he used his position as football coach to challenge the school's reading of Constitutional law by way of newspaper ads and social media posts.  It seems "private" doesn't mean what it used to.  Well, after Dobbs, that was pretty much a given, wasn't it?

And yes, we're deep into the land of ideology v. legal reasoning:
One can even say we're leaving legal reasoning far, far behind.  As Justice Sotomayor notes, explaining sotto voce that this case is directly in line with the heinous Hobby Lobby ruling:

“The Court’s history-and- tradition test offers essentially no guidance for school administrators. If even judges and Justices, with full adversarial briefing and argument tailored to precise legal is- sues, regularly disagree (and err) in their amateur efforts at history, how are school administrators, faculty, and staff supposed to adapt? “How will school administrators exercise their responsibilities to manage school curriculum and events when the Court appears to elevate individuals’ rights to religious exercise above all else? “Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal changes that will inevitably follow the Court’s choice today to upset longstanding rules.”
Yup. That's today's lesson. It’s not a good one.
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