Justice Sotomayor’s dissent in Kennedy v. Bremerton is as shoddy as its first sentence, where she uses deceptive wordplay to recast Coach Kennedy’s quiet post-game prayer at midfield as “say[ing] a prayer at the center of a school event.” No, the fact that Kennedy prayed at the 50-yard line after the game was over did not make his prayer “at the center of a school event.”
It gets much worse. Sotomayor refuses to focus on the actual grounds that the school district identified for disciplining Kennedy. As Justice Gorsuch’s majority opinion 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.”
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?
Sotomayor has also gotten a lot of attention for including in her dissent three photos that the usual suspects misinterpret 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?