Listen to Amicus:
The Supreme Court handed down another 6–3 decision collapsing the separation of church and state on Monday, ruling in favor of more sectarian prayer in public schools. Kennedy v. Bremerton School District asked whether Joseph Kennedy, a high school football coach, had a First Amendment right to pray with students at the 50-yard line after games. According to some teammates, this practice coerced players into joining—and practicing Christianity at school—for fear of incurring the coach’s disfavor. Nonetheless, Justice Neil Gorsuch’s opinion for the court found that Kennedy’s school violated his rights when it asked him to pray in private.
Dahlia Lithwick and Mark Joseph Stern discussed Gorsuch’s refusal to follow both reality and precedent in a bonus episode of Amicus available to Slate Plus subscribers. Their conversation has been edited for length and clarity.
Dahlia Lithwick: Mark, you recently told me that Kennedy v. Bremerton was going to be the sleeper case that you were watching because it wasn’t just a referendum on doctrine. It was a referendum on truth. The case just came out, and the court held 6–3 that coach Joseph Kennedy had his First Amendment rights to religious liberty and free speech violated by a school policy that did not allow him to pray with masses of students following football games. This feels like a singular moment because this entire case—and Justice Sonia Sotomayor used photos in her dissent to make this point—is a referendum on truth.
Mark Joseph Stern: There were two narratives in this case. One is that Coach Kennedy was simply engaged in quiet, private prayer at the 50-yard line and students voluntarily joined him. The other is that Coach Kennedy created a spectacle by engaging in loud prayer circles, to which he invited not only the members of his own team but also opposing teammates and individuals who attend the school. And the Supreme Court adopted this first narrative, even though—as the pictures in Sotomayor’s dissent illustrate—it is flatly false. This was not quiet, silent prayer. This was coercive, loud prayer during the course of school duties by a school official who was hired in part to serve as a leader and role model for students. He conveyed the reality that if you did not join his Christian prayer circle, you were not a full and true teammate, and you might not even deserve to be playing on that team.
Lithwick: And just to go through the facts for a minute, Justice Neil Gorsuch’s opinion for the court accepts the narrative that Kennedy was fired. Which he wasn’t—he was put on paid administrative leave. And Gorsuch accepts the narrative that this was “private” and “quiet,” even though there were TV cameras and elected officials and people storming the field and knocking over the tuba players to join.
It’s as if Gorsuch is writing some sort of medieval tract about a holy saint on a journey through the desert who’s just trying to pray, and this dumb school district keeps throwing obstacles in his way that it calls “accommodations.” It’s such a strange framing of the facts.
[Read: Supreme Court Lets Public Schools Coerce Students Into Practicing Christianity]
Stern: Gorsuch evinces an almost divine certainty, as though he is a holy man traveling the countryside of a medieval land back in the 13th century, receiving these visions from a deity that must supersede any puny, mortal illusions of reality. As he so often does, Gorsuch reflects an almost pathological certainty in his own rightness, an inability to believe that something he perceives to be true might not be true. He bulldozes over the facts of this case and blows past photographic evidence.
This is a horrifying approach to judging. It ratifies the Supreme Court’s stature as a group of gods on Mount Olympus who speak the truth because anything they say must be the truth. And in Kennedy v. Bremerton, we get this pathology in its purest form. The Supreme Court can just manipulate the facts to craft a narrative—a “siren song of a deceitful narrative,” as a lower court judge put it—to get where they want to go when rewriting the Constitution.
Lithwick: This decision has real, significant consequences. The Lemon test is, I guess, overruled, or stomped into nonexistence. Tell us what the law was and what it is now.
Stern: I think it’s safe to say that the Lemon test is overruled because Gorsuch says it’s already dead. He says: The country didn’t know it, but we quietly overruled the Lemon test at some stage in the past 20–30 years. I’m not going to pinpoint when, but trust us—it happened.
Lemon was a decision from 1971 that lays out a framework for evaluating establishment clause claims, and Justice Sandra Day O’Connor refined it into a standard that is quite clear and defensible. She said we can’t have laws that appear to be endorsing religion or any particular faith, since that sends a message to the community that there are in-groups and out-groups, and insiders who share this favored religion get special treatment while everybody else is out in the cold. So the test is: Would a reasonable observer think a government action is endorsing religion?
Here, the answer is obvious: Any reasonable observer would look at what Kennedy did and say, duh, this is an endorsement of Christianity. This is an employee of the school, in uniform, smack dab in the middle of his official duties, expressing thanks to a Christian God. But Gorsuch gets around that problem by saying: “That test is overruled. We have a new test, which is ‘history and tradition.’ Go back and figure out what James Madison would’ve wanted in public schools today.” And magically, the majority’s policy preferences align perfectly with their imagined idea of what James Madison would’ve wanted.
Lithwick: And Gorsuch goes so far as to tell the students who are not religious, who felt coerced into joining this prayer circle, that they should just be more tolerant.
Stern: Right. Gorsuch says: Students, you don’t like getting coerced into Christian prayer? Too bad. Toughen up. You’re going to have to deal with proselytization in school because that’s what the Framers would’ve wanted. And by complaining to your mommy about this little Christian prayer circle, you’re showing me that you’re not ready to participate in a pluralistic society. You’re not capable of showing the requisite respect for Christianity and Jesus that our Constitution demands of you. There is a total refusal to empathize with religious minorities.
Lithwick: Right. And of course, the counterfactual here is the Muslim coach bringing his prayer rug to the 50-yard line. It’s hard to imagine the courts, or the fans, would have the same solicitude.
I want to ask you about one of the themes we’ve seen, which is the court saying, we’re going to ditch these tests because they’re unworkable. They’re inconvenient. They’re clumsy. The Lemon test here. The undue burden test for abortion after Dobbs. The two-step test for gun regulations after Bruen. I guess I’m saying a version of what you just said, which is if you do away with all the tests, then you’re just at the point where it’s just because I said so. It’s just power.
[Read: The Supreme Court Will Pay in Legitimacy for Overturning Roe]
Stern: The fundamental purpose of the tests is to constrain judges and future courts and create a set of ground rules that everybody is playing by. And that includes not just judges, but also the thousands of employees of public schools and school districts who have to figure out how to balance the establishment clause—to the extent that it still exists—with free exercise and free speech, and live in fear of ruinous lawsuits that accuse them of anti-Christian persecution.
The idea of these tests is that everybody’s working from the same playbook and we can disagree over how that playbook might apply in one particular instance, but we’ve all got the same starting point. And this Supreme Court says that’s a bunch of hooey. It says we don’t need these tests because they’re just judge-made rules that have no basis in the Constitution. And instead, everything rides on the subjective determination of five or six Republican appointees who happen to be sitting on the Supreme Court at this moment.
I think there’s an incredible amount of arrogance in these decisions, throwing out the Lemon test and the undue burden test and the two-step test and saying, “Well, we can do better if we just play it by ear and make up new rules as we go along.” I don’t think that can possibly be true. I think what they’re really doing is preserving a maximum amount of leverage for themselves in future cases, and for their ideological allies in the lower courts, who are going to be the ones to expand these new precedents to their logical extreme.