In June, the Supreme Court ruled in Kennedy v. Bremerton School District that a school district violated the Free Exercise and Free Speech rights of a high-school football coach when it disciplined him for praying quietly after three games. Ever since the Court’s ruling, the Twitter-verse has been rife with ill-founded claims that Justice Gorsuch’s majority opinion rewrote the actual facts of the case. Folks making this claim have routinely cited the photographs that Justice Sotomayor included in her dissent.
I now see that Stanford law professor Mark A. Lemley makes this same claim in an online essay for the Harvard Law Review Forum. Lemley nakedly asserts:
In Kennedy v. Bremerton School District, the Court took the remarkable step of rewriting the facts of the case, ignoring what actually happened (as found by both the district court and the court of appeals and documented with photographs), and writing its own (false) set of facts to tell a more favorable story for the outcome it wanted to reach.
As his sole support for this proposition, Lemley cites parts I-A and I-B of Sotomayor’s dissent.
So let me restate what I spelled out the day after the Court issued the ruling in Kennedy.
A careful reading of Sotomayor’s dissent will reveal that she and Justice Gorsuch differ not on what the actual facts are but on the very different matter of which facts are relevant to the legal question before them. The majority focuses on the actual grounds that the school district identified for disciplining Kennedy. As Gorsuch explains, “The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.” Sotomayor does not dispute this. She complains instead that by looking only to the grounds that the school district “articulate[d],” the majority “errs by assessing [the district’s Establishment Clause concerns] divorced from the context and history of Kennedy’s prayer practice.” In her view, the majority provides a “myopic framing of the facts.”
As Gorsuch’s majority opinion spells out, for over seven years no one complained to the school district about Kennedy’s pre-game and post-game practices (which took different forms over time). When the school district in September 2015 did object to Kennedy’s post-game “inspirational talks” with “overtly religious references,” Kennedy complied by ending those talks.
Under Sotomayor’s contextual assessment, it doesn’t matter that Kennedy stopped giving post-game talks with religious content, and it doesn’t matter that the school district stated that it was disciplining Kennedy only for (in Gorsuch’s summary) “praying quietly without his players after three games in October 2015.” What this means is that Sotomayor would treat Kennedy differently from another coach with no history of prayer practice who started praying quietly without his players at midfield. Kennedy’s prayers would somehow violate the Establishment Clause, while the other coach’s identical conduct wouldn’t. What sense does that make, especially when the district itself didn’t invoke Kennedy’s past practice against him?
Lots of folks have misinterpreted the photos that Sotomayor includes as somehow refuting Gorsuch’s statement of the facts. Oddly, Sotomayor does not discuss the photos and thus invites the misinterpretations.
The first photo (on page 5 of her dissent) shows Coach Kennedy in a prayer circle with players from both teams. Unlike with the other two photos, Sotomayor doesn’t include a date in the photo’s caption, so only a careful reader will know that it came from the time that Kennedy was giving post-game talks (i.e., before he received the school district’s directive in September 2015), not from any of the three games for which the school district punished Kennedy.
The second photo (on page 9) shows Coach Kennedy in a prayer circle surrounded by players, and it bears the date of October 16, 2015—the first game for which Kennedy was punished. But only the careful reader will discern that all of the players surrounding Kennedy are “from the opposing team” (as Sotomayor states on the previous page). So any suggestion that he coerced them to join him would be absurd.
The third photo, on page 10, shows Coach Kennedy in a prayer circle without any players, but with some players in the background. The caption states that it is from October 26 (after the third game). Sotomayor’s text preceding the photo states that “The BHS [Bremerton High School] players, after singing the fight song, joined Kennedy at midfield after he stood up from praying.” (Emphasis added.) I’m reliably informed that the players in the background of the photo, in white jerseys, are from the opposing team, not from Bremerton High. In any event, even if that weren’t so, I don’t see how she thinks that the photo helps her argument.
Even if the “endorsement” test that Sotomayor invokes were a sound interpretation of the Establishment Clause, how and why would an objective observer, on a proper presentation of the facts, think that the school district was endorsing religion by allowing Coach Kennedy to say a quiet prayer at midfield after a football game? How and why would the fact that no players from his team joined him for any of the prayers after the three games suggest that players felt coerced to join those prayers?
While I’m at it: In the very next sentence of his essay, Lemley objects that the Court “has reached out to decide issues not presented by the case before it” and cites Dobbs v. Jackson Women’s Health Organization as supposed support. That is a wild misuse of Dobbs.