Ian Millhiser: The Supreme Court hands the religious right a big victory by lying about the facts of a case
Writing for Vox, Ian Milhiser lays out how SCOTUS rewrote the facts of the case of the praying coach to yield a victory– and then dismantle precedent with far-reacding importance.
Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”
(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)
Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.
The Court’s decision to explicitly overrule Lemon v. Kurtzman, the 1971 decision that previously governed cases involving the Constitution’s language prohibiting “an establishment of religion,” has obvious implications for future lawsuits: Lower court judges will no longer apply Lemon’s framework to establishment clause cases.
But it’s not clear how those lower court justices should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.
If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students.
Gorsuch’s opinion, however, describes a very different case than the one that was actually before the Court.