Advisory Opinions - Praying Football Coach Wins at Supreme Court

Episode Date: June 28, 2022

The Supreme Court has been making waves with two recent religious liberty cases, Kennedy v. Bremerton School District and Carson v. Makin. Sarah and David delve into the Kennedy opinion, involving a high school football coach who was fired for praying on the field. The case overruled the Lemon test, used in First Amendment cases for decades, but there’s still much to be decided in the future. Plus: More on the political fallout from the Dobbs v. Jackson Women’s Health ruling.   Show Notes: -Kennedy v. Bremerton School Dist. -Advisory Opinions: Supreme Court Hears Football Coach Prayer Case -French Press: Roe is Reversed, and the Right Isn’t Ready -Advisory Opinions: Supreme Court Overturns Roe and Casey -Wall Street Journal: The Law Firm That Got Tired of Winning Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm David French with Sarah Isker, and we've got another huge Supreme Court case to talk about. This time it is Coach Kennedy, the praying football coach. His decision was handed down less than an hour ago as we're recording this. But never fear. We have read the opinion. We read everything before the opinion. We have so many thoughts and we've got more thoughts on Dobbs. And we're going to also just,

we know there are other Supreme Court cases that have been decided. We're tabling some of them for later. We're in the midst of talking about some of the biggest cases in a generation. So we're going to focus on those up front. So today's podcast, Coach Kennedy, and then a little bit more on Dobbs, because quite frankly, a snap judgment and snap response to it shouldn't be our only response to Dobbs. So we're going to talk more about it. So Sarah, Coach Kennedy decision, anything about it? And we'll just right up front say Coach Kennedy won. He prevailed in his claim that the school violated his rights under the free exercise clause when it prohibited him from offering a silent

prayer at the 50-yard line after football games. I think we both expected that. What are your first thoughts on the decision? And is there anything about it that surprised you? So I didn't like this case, as listeners who heard our pod after the oral argument may remember. However, as you say, David, I was expecting my team in this to lose, and it did. So because of those expectations, I will say that I am pleasantly surprised, or at least, I don't know, something that we basically have three concurrences,

one from Thomas, one from Alito, and then a concurrence in absentia, if you will, from Justice Kavanaugh, who simply didn't join a specific part of the opinion having to do with government employee speech. That is interesting to me. We're going to dive into it more, obviously, because I think that that will provide me and people who might agree with me some comfort moving forward as to these cases. Because overall, what happened here to me is that Coach Kennedy won if and only if you accept the factual recitation that came from Justice Gorsuch. As in, the dissent lays out a pretty different, totally different set of facts about this case. And I think what Justice Gorsuch and

the majority are trying to say here is, yep, so Coach Kennedy only wins under these facts, the future Coach Kennedy's, by the way. And that is of some comfort to someone like me who is most concerned about the coercive aspect of a coach praying at the 50-yard line after the game. Obviously, it was cold comfort to the dissent here. But here's the problem. Overall, if you don't specify a narrow set of facts, then either way, this case ends up having problems. Either you have the coercive problem that I'm most concerned about, or you have the problem of a teacher not being able to say a prayer before they eat their meal in the cafeteria, or not being able to wear a yarmulke to school. So if that's the trade-off, then I'll take this, where religious exercise is protected, with a whole bunch of caveats, both on the facts, on public employees,

with a whole bunch of caveats, both on the facts, on public employees, and of course, David, I'm waiting for you to do your victory dance on overruling Lemon. So I think we need to start with that, of you tell us about Lemon, why you wanted it overruled, and then if you could just explain the victory dance you're doing for those who can't see you. You know, it's really hard for me to do better, honestly, than Gorsuch's opinion as to the problems with the lemon test. Okay. So let me, let me read a, read a key portion of this opinion. And this is the portion where Gorsuch is rebutting the district court, the district's decision to rely on Lemon. In other words, the school district said, wait a minute, the presence of the Lemon test means that we can't permit the coach to pray. So the district- And just real quick, I do find this funny. Ha ha, it's funny, not really. But

Lemon v. Kurtzman was decided in 1971, a huge precedent in this line of cases. I mean, there's bobbleheads of Scalia where he's holding a lemon because he hated that case so much. So in terms of overturning former president of the court, the early 70s not doing great in their batting average. Right. Oh, yes. Yes. And the early 70s, it should be noted, were sort of the last gasp of the sort of the Warren Brennan court that was really a judicial revolution that began with Brown and then sort of ended with Roe. And that's sort of roughly bounding its beginning and end elements and had a lot of good case law in there. Brown v. Boarding of Education, for example, great case law, and had what I

believe some really bad case law in there, Roe v. Wade being an example. But Lemon is right there in that window. And it's interesting when we talk about controversies of the court, we're just taking a little detour here for a minute. When we're talking about controversies surrounding the court and the sense that the court's decision in Dobbs was an earthquake. And that was really a sense, I'm at the Aspen Ideas Festival right now, and I was on a panel on Sunday, I'm sorry, Saturday evening about the decision. And that word earthquake, Dobbs, was used to describe Dobbs by one of the panelists, one of our former advisory opinions guests, Professor Vladek from the University of Texas. And he was talking about that this was an earthquake.

Absolutely, Dobbs is an earthquake, no question. But I tried to remind the audience that Roe was an earthquake. And the interesting thing about Roe, it was an earthquake that came after a number of other earthquakes during that time in that era. So again, some of those earthquakes, absolutely necessary, like Brown. Other earthquakes were less necessary. So I'm not going to say that Lemon was one of those earthquakes, but it was definitely a decision in that era. So here we go. Just the facts of Lemon, by the way, this was an act in Pennsylvania that allowed the superintendent to reimburse private schools that at that point, at least, were mostly

Catholic for the salaries of teachers who taught, again, in private elementary school, but from public textbooks with public instructional material. And that gets struck down. Now, that case is going to sound a lot more like the Macon main case than it is what we're about to talk about with Coach Kennedy. But this was the case that Justice Scalia, of course, in 1993, compared to a ghoul in a late night horror movie. This is the zombie wandering around. And that was 20 years later. We're another 20 years past that. The Supreme Court kept trying to abandon Lemon without explicitly overruling it. Lower courts, when they wanted to, would just invoke Lemon. That's the ghoulish nature of it. Right, right. So here's Gorsuch.

He says, to defend its approach, the district, the school district, relied on Lemon and its progeny. In upholding the district's actions, the Ninth Circuit followed the same course. And to be sure, in Lemon, this court attempted a grand unified theory for assessing Establishment Clause claims. That's exactly what it did. It put in place a test that was supposed to just be one, insert this whenever establishment clause claims come up. That approach, this is Gorsuch, called for an examination of a law's purposes, effects, and potential for entanglement with religion.

In time, the approach also came to involve estimations about whether a reasonable observer would consider the government's challenged action an endorsement of religion. Now, what the, and then here's Gorsuch more, what the district and the Ninth Circuit overlooked, however, is that the shortcomings associated with this ambitious, abstract, and ahistorical approach to the Establishment Clause became so apparent that this court long ago abandoned Lemon and its endorsement test offshoot. So here's where he's talking about how the court had made it a zombie for a very long time. Which, frankly, I'm very sick of this, and I hope this has come through on the podcast.

Just overrule stuff if you don't want lower courts to follow it. But don't do side-eye at the lower courts when you didn't overrule it, but you're saying it's a zombie. How are they supposed to know? It's very frustrating to like, I don't like that line. He's like, obviously we abandoned it and overrule it. Yeah, exactly. I mean, when is the court to know that a precedent has been so sidelined that you just don't touch it anymore when it's not been overruled? So he says the court has explained that these tests invited chaos in lower courts, led to differing results in materially identical cases, and created a minefield for legislators. And this part is, I think, really interesting. This court has since made it plain,

too, that the Establishment Clause does not include anything like a modified heckler's veto in which religious activity can be prescribed based on perceptions or discomfort. And this is, I think, really an important reason for the shortcomings of lemon and the way lemon developed, Sarah. So essentially what began to happen in the lemon test is that, you know, it was one of these multi-pronged tests. And when you have some of these multi-pronged tests, a lot of times, you know, it's the same criticism I have that I have for intermediate scrutiny, how rational basis review is the government wins, strict scrutiny is when the plaintiff wins, and intermediate scrutiny is when the judge wins. And then this Lemon test became kind of like that, except the grounds for suppressing sort of

religious expression was, what does somebody else think about it? So if somebody else is looking at this, what did they think about it? And so as just a natural consequence, you began to have an approach that was substantially different from the approach applied to other kinds of First Amendment protected expression, one that depended, that allowed the negative feelings or the negative assessment of another person's speech to dictate its legality. And that was way outside of the rest of First Amendment jurisprudence. that was way outside of the rest of First Amendment jurisprudence. And it created this really weird world in which the combination of the free exercise clause and the establishment clause somehow resulted in religious expression, in many cases having less protection than comparable

secular expression would have. And this, I think, is sort of the final blow to that legal regime. And we can talk about that a little bit more, but that's why I'm doing the victory dance here. Actually, no victory, no true crossed my face, Sarah, when I read it. You'll be pleased to know that Wikipedia has already been updated. That's amazing. That's amazing. happening for years and years and years is that me as a First Amendment litigator litigating free speech and free exercise clause cases, we always had to face this reasonable observer kind of test that meant that we were, if you were engaging in religious speech, you were behind the eight ball

in a way that secular speech was not. And that was always a profound constitutional flaw of lemon. And now that's corrected. And it's interesting because it's not quite a heckler's veto, but in practice, it kind of turned into one. It would be very community-based. In that community, particularly if you had, oddly and almost counterintuitively, the more minority-esque your religious practice was, the more the reasonable observer somehow would think that it was establishing that religion. Anyway, it didn't work is the point. It has been zombified for 20 years

and today was overruled. Okay, but that was not the end of this analysis by any means. They create kind of a new test, although notably Thomas and Alito waving their hands saying, let's be very clear on what's not part of this test. And Kavanaugh not joining a portion of the opinion that goes to part of that analysis as well. So Justice Gorsuch in part three says, now before us, Mr. Kennedy renews his argument that the district's conduct violated both the free exercise and free speech clauses of the First Amendment. These clauses work in tandem where the free exercise clause protects religious exercises, whether communicative or not, the free speech clause protects religious exercises. Whether communicative or not,

the free speech clause provides overlapping protection for expressive religious activity. He then goes through the free exercise analysis. Good so far. But then part B, he goes through the free speech part. This is the Garcetti analysis and pickering to some extent that we've talked about before. This is the part that Justice Kavanaugh does not join. He doesn't say why he doesn't join it. He just doesn't join it. So he joins the free exercise part. He joins including the sentence where it says that they act in tandem with overlapping protections. And he joins the part about sentence where it says that they act in tandem with overlapping protections. And he joins the part about a burden shifting analysis that basically Kennedy needs to prove that his free exercise or free speech rights were burdened. And then it will shift over to the district school in this case to show that what they did was nevertheless constitutional.

But Kavanaugh not going to join on to this Garcetti analysis. Here's Gorsuch writing with, again, five votes on this paragraph. In Garcetti, the court concluded that a prosecutor's internal memorandum to a supervisor was made pursuant to his official duties and thus ineligible for First Amendment protection. In reaching this conclusion, the court relied on the fact that the prosecutor's speech fulfilled a responsibility to advise his supervisor about how best to proceed with a pending case. In other words, the prosecutor's memorandum was government speech because it was speech the government itself had commissioned or created. It was an expectation of the job. On the flip side, he talks about a case called Lane, a public employee terminated after he

testified at a criminal trial about matters involving his government employee. They distinguish that by saying, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not just did you learn about it from the scope of your employment. Applying these lessons here, Gorsuch says, it seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension,

he was not engaged in speech, quote, ordinarily within the scope of his duties as a coach. Indeed, one might argue that was the problem, not the solution. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, et cetera, et cetera. Simply put, Mr. Kennedy's prayer did not owe their existence to Mr. Kennedy's responsibilities as a public employee. So that's all the part that Justice Kavanaugh does not join. And it's interesting to me that the Thomas and Alito concurrences,

David, seem to touch on some of this concern as well. Let me read you just a little bit from Justice Thomas. I joined the court's opinion because it correctly holds that Bremerton School District violated Coach Kennedy's First Amendment rights. I write separately to emphasize the court's opinion does not resolve two issues related to Kennedy's free exercise claim. So this is a little distinguishable from Justice Kavanaugh. Justice Kavanaugh is talking about the free speech claim. Here, Justice Thomas is going to talk about the free exercise claim.

And he says, first, the court refrains from deciding whether or how public employees' rights under the free exercise clause may or may not be different from those enjoyed by the general public. Indeed. Okay. That seems like a pretty big one. Second, the court also does not decide what burden a government employer must shoulder to justify restricting an employee's religious expression because the district had no constitutional basis for reprimanding Kennedy under any possible applicable standard of scrutiny. Those are pretty big things that were left undecided, David. Again, the point being here that the facts are going to matter so much to the Kennedy analysis. This opinion, by the time you get through these concurrences and not joins,

it's very narrow. Okay, here's Justice Alito. It's one paragraph. The expression at issue in this case is unlike that in any of our prior cases involving the free speech rights of public employees. Petitioner's expression occurred while at work, but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity. The court does not decide what standard applies to such expression under the free speech clause. Again, Thomas was just talking about how we didn't pick a standard under free exercise.

Alito noting we didn't pick a standard under free speech. And Kavanaugh simply not joining the whole free speech section. But the court holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I joined the opinion in full. Hmm, David, did anything get decided in this case? Coach Kennedy wins and Lemon is gone. That's it. Like, I think those might be the only two things,

which is giving me a lot of comfort right now. I'm feeling way better about this case than I dreamed I would on a day like today. I don't like that. Not that I don't like your comfort. Yes, but my comfort is your discomfort. I think you are exactly right to feel discomforted by my comfort because I think this is really narrow to the facts and not even the real facts. The facts is Justice Gorsuch presented them, which are night and day, from the facts is Justice Sotomayor presents them in the dissent.

I think her facts are more complete. And I think her facts would make the case really hard to resolve, which is why Justice Gorsuch picks a much narrower. He picks three prayers only. why Justice Gorsuch picks a much narrower, he picks three prayers only. And in those three prayers, none of his own football players join him. That is not the overarching facts of this case that led up to it. Yeah, it gets really messy when you look at the big picture. Yeah. So let me tell you why I'm discomforted by your comfort. And then I would love for you to talk about those additional facts. Yes. Because it was...

We'll get into some facty facts. Yeah. It was really interesting to me to read the Gorsuch factual summary because I thought... Unrecognizable. That's... Not unrecognizable. That's unfair. They were totally recognizable. It's just narrow. Yeah. It was selective. Shall we say selective in yeah. In incomplete. And, and the interesting thing is if you read the factual summary, Gorsuch's factual summary, it makes the school district just seem like they're kind of a collection of anti-Christian, you know, this is just an anti-Christian animus. Oh, and can I give my like little, my annoyance, if you remember from the oral argument, is that in fact, they had someone arguing the case who did have that animus.

Yes. Remember he was the head of the separation of church and state group. He actually does at least appear to have a pretty anti-Christian animus. It is baffling to me, truly baffling. And this applies to all cases down the line, except for those required to be argued by the Solicitor General of the United States, who actually I think is very good at this. I don't understand why anyone is hiring a non-conservative to argue their case before the Supreme Court at this point. Because either you already have those three votes or you don't, and you're trying to get

two more votes who speak a language that a liberal arguer, like the guy who heads up the litigation for the separation of church and state group, doesn't speak. And the oral argument, he somehow thought he was going to win over two more votes by talking about how absurd it was and how Christian this guy was. That wasn't ever going to work. And it was a baffling oral argument from the other side. And you see it represented here in the majority opinion. And I'm sure they're telling themselves today that there was no way for them to win this case. I hope they look at these concurrences, look at what Justice Kavanaugh didn't join, look at the facts between Justice

Sotomayor and Gorsuch, and realize just how winnable this case actually was and that they lost it. And they lost it for students like me, so I'm annoyed. Yeah, the oral argument was pretty remarkable, and we talked about that before before we should put a link to that discussion in the show notes because that was really striking about the oral argument it was very much of a if this is this is unfair because it wasn't this far but here's the the analogy i think kind of holds as a matter of kind of the thrust of the way the oral argument was. It reminded me more of a cable news hit where you're sort of trying to score your ideological points versus a court argument where, you know, I have to persuade two of these people or I lose. It was like if you rile up Justice Sotomayor even more, you will get an extra vote. That's not how this is going to work.

This isn't an enthusiasm gap problem. And at one point, remember, Justice Thomas asked him a question and he audibly scoffs. He audibly scoffs, which, by the way, is exactly cable news behavior that's going to kind of make you a hero with your tribe. that's going to kind of make you a hero with your tribe. And it'd be like, you know, watch, secular lawyer destroys religious fanatic Judd. You know, then that might work online, doesn't work in the courtroom. And yeah, we talked about that at length.

But so here's how I read this opinion. And Paul Clement was arguing for Coach Kennedy. And that's where I think you needed someone to take on Paul Clement. Again, from the right, there's plenty of options. Cannon Shanmigan, the husband of the pod, Scott Keller, just to provide some options out there. But no, in all seriousness, you need to hire someone. They don't need to actually be conservative themselves, but they need to speak originalism. They need to speak religious liberty language.

And if you're not hiring someone who speaks that language, don't scoff at a justice. So I'm very frustrated, I think, by what I see here was even more winnable than I think I thought after the argument to actually see the opinion. think I thought after the argument to actually see the opinion. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.

So listeners, what you don't know, because everything appears so seamless, is that we just had a, oh, I don't know, almost a 30 minute break because the Wi-Fi at Sarah's house just decided that it didn't want to upload any more of Sarah's content. And Sarah, I'm going to just go ahead and assume that was because you disagreed with me and the internet was doing what the internet does when that happens, punishing you for your wrongness. Well, you were about to start talking about why you are discomforted by my comfort. And yeah, my household will not take that. I think that might be it. I prefer my interpretation. But if Sarah sounds a little

bit different, it's because she has changed locations, is using a different mic, and we're rolling on. We're pressing through because that's what we do. So let me talk about sort of my emotional roller coaster as I read this opinion. An emotional roller coaster is maybe a little bit extreme to describe it. But the way in which I steadily, I grew more excited and then less excited. So I'm reading the opinion and it gets rid of lemon. Yay. Then I'm reading the opinion and very intriguingly, it starts to talk about, it starts to look like it might be narrowing Garcetti a little bit and has some interesting additional language. And for those who don't remember, Garcetti is a public

employee speech case, which is basically says that if you are speaking on the job in your official capacity as a public employee, that you don't really have First Amendment rights. And it carved out a potential exception for that general rule when it raised academic freedom issues. But what the court here said is, wait a minute, what the majority opinion is saying, wait a minute, not everything done while you're quote on the clock is going to be your speech in your capacity as a public official. And so there's going to be some speech that is private speech, even when you're on the job. And when it's private speech, even when you're on the job, we're going to go through the pickering analysis. And that is, your First Amendment rights will

start to attach if you're speaking on an issue of public concern, and then there's a balancing test after that. And then there was this thing that kind of raised my eyebrows. Here, Gorsuch says, they, the parties, appear to accept, at least for argument's sake, that Mr. Kennedy's speech does not raise questions of academic freedom that may or may not involve additional First Amendment interests beyond those captured by this framework. And when he said that even the word may and academic freedom in the context of high school, I had this little eyebrow raise, like, what is going on here? And so then they analyze it under the Pickering analysis because the majority Gorsuch analyzes it under the Pickering analysis because he said that this private prayer was private

speech or this prayer on the 50-yard line was private speech, not part of his duties as a public official. And then I realized, wait, this is the part Kavanaugh didn't join. And then I get to the Thomas and Alito concurrences and I'm thinking, huh, is this last part even a part? Like, really? Does it represent the majority of the court? And so by the end of it, I was exactly where you were, Sarah, which was this is Lemon is dead and he can pray. That is this case. And boy, is that it. So I'll run through the facts as Justice Gorsuch laid them out, and then I'll run through the facts as Justice Sotomayor laid them out. And again, it's not that either one isn't truthful, but it goes to this framing question that we've been talking about a lot in the last week, David. Whether you're looking at

the historical analysis for the Second Amendment or abortion, boy, does framing seem to matter a lot. And it even does when we're talking about a coach praying at the 50-yard line. So let's start with Justice Gorsuch. Joseph Kennedy began working as a football coach at Bremerton High School in 2008 after nearly two decades of service in the Marine Corps. Initially, Mr. Kennedy prayed on his own, but over time, some players asked whether they could pray alongside him. Mr. Kennedy responded by saying, this is a free country, you can do what you want. The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes, team members invited opposing players

to join. Other times, Mr. Kennedy still played alone. Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. Separately, the team at times engaged in pre-game or post-game traditions, prayers in the locker room. It seems this practice was a school tradition that predated Mr. Kennedy's tenure. Mr. Kennedy explained that he never told any students that it was important they participate in any religious activity. In particular, he never pressured or encouraged any student to join his post-game midfield prayers. For over seven years, no one complained. It seems the district superintendent first learned of them only in September 2015 after an employee

from another school commented positively on the school's practices to Bremerton's principal. At that point, the school sends him a letter. The superintendent identified, quote, two problematic practices. First, Mr. Kennedy had provided inspirational talks that included overtly religious references. Second, he had led students and coaches in a prayer in the locker room tradition that predated his involvement with the program. Basically, they say, stop that going forward. After receiving that letter, Mr. Kennedy ended the tradition, predating him, of offering locker room prayers. He also ended his practice of incorporating religious references or prayer in his post-game motivational talks to his team on the field. Mr. Kennedy further felt pressured to abandon his practice of saying his own quiet

on-field post-prayer game. Driving home after the game, however, Mr. Kennedy felt upset that he had broken his commitment to God by not offering his own prayer. So he turned his car around and returned to the field. By that point, everyone had left and he offered a prayer of thanks on the 50-yard line. On October 14th, through council, Mr. Kennedy sent the school officials informing them that because of his sincerely held religious beliefs, he felt compelled to offer a post-game personal prayer of thanks at midfield. I chuckled because all of a sudden the language starts sounding a lot like various Supreme Court precedents. Okay, so now the school and Mr. Kennedy are going to go in this back and forth of the school saying, look, just you can pray off field, you can pray on your own. Mr. Kennedy are going to go in this back and forth of the school saying, look, just you can

pray off field. You can pray on your own. Mr. Kennedy's saying, no, he wants to pray on the field. They go back and forth and back and forth. And eventually he's going to be removed. And this is going to involve those three prayers where he keeps praying on the 50-yard line after the school keeps saying, we appreciate what you're trying to do here, but no. Okay, that's Justice Gorsuch's representation of the facts. Now I'm going to read Justice Sotomayor talking about the exact same course of events. The district court first hired Kennedy in 2008 on a renewable annual contract to serve as a part-time assistant coach for the varsity football team. Then it goes through his description of his duties, etc. It requires him to exhibit sportsmanlike conduct at all times, utilize positive motivational strategies.

You get the point? In September 2015, a coach from another school's football team informed the 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. The district initiated an inquiry. That's when they then learned about Kennedy recounted that initially he prayed alone and that he never asked students to join him. Over time, however, a majority of the team came to join him, with the numbers varying

from game to game. Kennedy's practice evolved into post-game talks in which Kennedy would hold aloft student helmets and deliver speeches with overtly religious references, which Kennedy describes as prayers, while the players kneeled around him. The district also learned that students had been praying in the locker room, and this includes pictures, by the way, of a lot of students at the 50-yard line with their arms kneeling and arms around each other. While the district inquiry was pending, its athletic director attended a football game

and told Kennedy that he should not be conducting prayers with players. director attended a football game and told Kennedy that he should not be conducting prayers with players. On September 17th, the district superintendent sent Kennedy a letter informing him that leading prayer with students on the field and in the locker room would likely violate the establishment clause. The district court acknowledged that Kennedy had not actively encouraged or required participation, but emphasized that school staff may not indirectly encourage students to engage in religious activity or endorse religious activity. They reiterated that all district staff are free to engage in religious activity, including prayer, so long as it does not interfere with their job

responsibilities. Kennedy stopped participating in locker room prayers and after a game the following day gave a secular speech. But then we have that, you know, crisis of conscience on the drive back. He then hired an attorney, sent a letter explaining that he was motivated by sincerely held religious beliefs to pray following each football game. The letter claimed that the district had required Kennedy to flee from students if they voluntarily chose to come to a place where he is privately praying during personal time. Kennedy requested the district simply issue a clarification that prayer is Kennedy's private speech. All right, continuing. Before the homecoming game, Kennedy made multiple media appearances

to publicize his plans to pray at the 50-yard line, leading to an article, a lot of media coverage. The district began receiving a large number of emails, letters, and calls, many of them threatening. Kennedy's letter asserted that he had not invited anyone to pray with him. The district noted that might be true of Kennedy's September 17th prayer specifically, but that Kennedy acknowledged inviting others to join him on many previous occasions.

And around and around we go. At some point, the Satanists get involved because they always do, David. They always do. The At some point, the Satanists get involved because they always do, David. They always do. As a game, the district receives calls from the Satanists who intended to conduct ceremonies on the field after football games if others were allowed to. This is where all of that media attention

then causes a whole bunch of other people to storm the field. Members of the band get knocked down. People are jumping the fence. The district court was forced, sorry, the district, the school district was forced to make security arrangements with the local police to post signs near the field because, of course, Coach Kennedy only had access to the 50-yard line because he was a coach. And now we have the letters back and forth of the various accommodation where

the district keeps trying to accommodate kennedy says no here's so to my organ kennedy did not directly respond or suggest a satisfactory accommodation instead his attorneys told the media he would accept only demonstrative prayer on the 50 yard line immediately after games. Kennedy, during the October 23rd and 26th games, again prayed at the 50-yard line. He stood on the field alone with players standing nearby. Kennedy prayed, surrounded by members of the public, state representative who attended the game to support him. I mean, it keeps going, but the point being, those are pretty different factual allegations to me. Yeah. And you know, we, they're very different. They're very different. And we talked about this before when we were talking about the case, and this is something

that, and it goes to sort of the legal, the legal posture and the legal arguments that brought us to this point. And the counterfactual I have, or the question that I would offer for the school district is, what if the school district, rather than applying lemon, had applied tinker? And when I say that, that Tinker is the seminal free speech case in public schools, generally applied to the speech of students. But it says quite clearly that teachers and students do not abandon their free speech rights at the schoolhouse gate. When a teacher comes into the school, they do not abandon all their free speech rights. This is something that's been held for a very long time. school, they do not abandon all their free speech rights. This is something that's been held for a very long time. Now, it doesn't mean that student and teacher free speech rights are the same.

It just means that teachers don't abandon their rights. But now, here is the but on Tinker. The but on Tinker is that it's still a school that is, the purpose of the school is educational, and you cannot, neither student nor teacher speech can create a material disruption. And in this circumstance, it would be interesting to me to see if the defense that it, what would have happened, Sarah, if this was not presented as an establishment clause violation, but this was presented as a material disruption under those facts because you have this incredible sort of public response that leads to, you know, people jumping gate, jumping fences, people being knocked down, you know, demands to flood, you know,

people flooding the field, at least in one circumstance. And that's a that if you actually go back and you look at if this was viewed through the tinker frame and not the lemon frame? What say you? Really interesting point. I mean, you get into this heckler's veto problem. What if they had been rushing the field to protest him praying? Would we then say that was a material disruption? I think no. I think, no. In this case, the problem is that they were rushing the field to support him,

at least to some extent, with his sort of wink and a nod that he wanted that support. And again, Justice Gorsuch's analysis of the actual actions that he was disciplined for start on September 17th with that first letter from the school. But as Justice Sotomayor points out, on September 11th, while the district's inquiry was pending as they're finding out all of the prayers, the athletic director tells him he should not be conducting prayer with players. So with the athletic director watching at that game, Kennedy led a prayer out loud, holding up a player's helmet as the players kneeled around him. And then on the bus ride home with the team, he posts on Facebook that he thought he might have just been fired for praying. That's what's going to lead to all this media attention. And he's told not to do it. He keeps doing it only after the September 17th letter, when he then stops some of the activity,

then has this crisis of conscience, and then hires a lawyer on October 14th, does it sort of become super legalistic where they're trying to now test the boundaries of free exercise versus establishment? It's that sort of intentional testing that I think is going to limit this to its facts. Because the Coach Kennedy pre-September 17th is clearly violating the law. The Coach Kennedy post-September 17th isn't, but only because he's got a lawyer to be very specific so that he's not violating it. And Justice Gorsuch is only looking at that post-September 17th action. And so again, I think this case is going to be a little like Fulton, where it's really, it's a win for religious liberty, I guess, but boy, is it narrow. No, it's definitely narrow. And I do want to pin the heckler's veto point just for just for a minute, because that was actually some of the really thoughtful questions we got back and comments that we got back when we first discussed this.

comments we got back was, well, wait a minute. If the reaction to the speech is the problem, isn't that a heckler's veto? And isn't it really the responsibility of the school to protect the speech and to protect against the reaction? In a normal heckler's veto situation, the answer to that would be yes. In other words, what's happening with the heckler's veto is that it is the response of opponents. So opponents create a disruption that causes a school to stop the speech. Well, if, if, and under that kind of analysis, what that then means is I can just stop whatever speech I want to stop if I'm disruptive enough. Right. And so that we can't have that, that is fundamentally contrary to sort of the principle, you know, fundamentally contrary to First Amendment principles that somebody can just stop my speech. I have free speech until somebody

doesn't like me enough. But this is different from that, because this is a supporters. This isn't hecklers, it's supporters. And so in that circumstance, it's a different analysis. In that circumstance, what you have, and I think a fair inference could be drawn from some of the activism, is that actually the public entry onto the field and that kind of public support was an intended consequence of the speech. Indeed, there's this great footnote from Sotomayor. The court, meaning the Gorsuch opinion, the court describes the events of October 16th game as having, quote, spurred media coverage of Mr. Kennedy's case. In fact, the district court found that Kennedy

himself generated the media coverage by publicizing his dispute with the district in his initial Facebook posting and is in his media appearances before the October 16 game. Is that relevant to a religious liberty analysis, free exercise, or free speech in this case? No, not strictly speaking, but it goes to this coercion point, David. Is he trying to coerce students into joining that prayer with him, or will it have a coercive effect to a reasonable observer? This is my whole beef with this case. Whether the purpose or effect, to go back to Lemon a little bit, is that you're going to have students praying on the 50-yard line who have different religious observances at home because they either want to be with their friends, feel social pressure to be there,

or, you know, game time is being decided by this. Maybe scholarships to schools is determined by game time. I mean, there's a lot of dominoes that fall from this. You know, the oral argument... But to be clear, there's no record evidence of that. Nope, there's not. There's no evidence game times determined by this or scholarships are determined by this in this case. Nope, there's definitely not. But there is that quote from the coach at one point where he... What is the quote, David? Something about how

there's no separating a good man from a good Christian or something like that, that his job is to raise good men and therefore good Christians, something to that effect, that he gives in a totally unrelated media appearance. But I don't know. I am deeply uncomfortable that the majority of justices don't see a problem, you know, this is still on duty. You know, he's still acting as the coach of the school. He has access to the 50-yard line because of his position as a school employee. And, you know, again, it would be one thing if under the facts, he goes to the 50-yard line, looks up, does a quick, you know, genuflect or something where literally there's not time for students to join him. That does not appear to be what's going on here. Yeah. And, you know,

that's why I keep going back to this tinker point and how kind of screwed up our analysis of expression is when it's religious, or how screwed up the analysis has been when religious expression is involved. When there's also, and this is, again, sort of the interesting aspect of the Alito and Thomas concurrence, which is really, they're really joining on the free exercise piece of this in the end of lemon and that's that like that's it but if you start to sort of drain from religious speech the sort of notion that it has a you it that there has to be a completely separate analysis of religious expression um from from generalized First Amendment expression, and you just think of it in terms of the Tinker analysis, I think the district's case is

exponentially stronger. When you bring in the Establishment Clause part of that, really all of that disruption stuff and everything is not really relevant to the established clause, establishment clause analysis as it has developed over the last 25, 30 years. It's incredibly relevant, incredibly relevant to a free speech analysis and the tinker analysis. And so that's why, you know, I think there was this distortion effect that was, there's, Lehman was exerting this gravitational pull on the legal analysis that's now gone.

And I think that that's ultimately going to be for the good. And look, this was, we got an email from Hiram Sasser at First Liberty after we first talked about this case and the oral argument. And he said that this is really

going to turn on the record. As he put it, I can bring the record with me. Happy to give it a go and see if the record evidence is convincing. And I think we'll have Hiram on maybe next month to talk a little bit more about this case. But David, very clear, this case turned on the record and whose version of the record the justices were going to buy into they bought into coach kennedy's version and that's what gave them the win unquestionably hyrum's a good dude i look forward to that yeah that that's because i i want you to i want you to hold his feet to the fire sarah on the on the uh evidence and we'll take a quick break to hear from our sponsor today aura

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That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, let's talk a little bit more Dobbs 72 hours later. Okay. So do you have any additional thoughts about the opinion? And let's extend it, not just sort of like the cold legal analysis of the opinion, but extend it into the fallout from the opinion. What are you seeing having 72 hours to sort of sit with it? What are you seeing having 72 hours to sort of sit with it? So the political fallout to the opinion is interesting to me because I think there's a lot of sincerely held feelings about it. But some of it I just discount as not being consistent. So, for instance, saying that now the court is nakedly partisan. So, for instance, saying that now the court is nakedly partisan. The problem with that is that we didn't hear those types of claims back when Roe was decided. And as we talked about at the beginning of this podcast, depending on maybe what you thought of those cases.

But if you weren't saying that those were particularly partisan, then I don't see how overturning those cases is then particularly partisan. New York, California, Massachusetts, where the people who are marching presumably have voted to protect these rights. And they're purporting to speak on behalf of women that live in states where they have voted a different way. Maybe they're right. Maybe they speak on behalf of those women. But again, there's some evidence at least that they don't. And I keep pointing to this Texas special election. But if the Democratic primary voters in that Texas district want a pro-life representative, then who are these women in New York whose abortion rights are fully protected under New York law? Who are they to say that those women are simply wrong and shouldn't get to speak for themselves? Women make up a majority of voters in the country. And so I find that not persuasive. And then third, of course, you can't say both. You can't say that this Roe v. Wade is incredibly popular. Abortion rights are

incredibly popular, but also we can't leave it up to states because then abortion rights won't be protected. Which is it? And of course, there's actually quite a bit of evidence that when it comes to issue polling that these groups are pointing to and political pundits, that the issue polling isn't right, that it doesn't tell the full story. I've used the gun example before. You polled background checks, expanding background checks. That polls at 90% in some states. But when it's actually a ballot measure to expand background checks, Hillary Clinton in 2016 overperformed, meaning that there were Hillary Clinton voters who either voted the other way, voted against expanding background checks, or didn't vote at all on that question, showing that in some places accounted for a 30% change from the polling in those states, which means that the issue polling isn't capturing something here.

And when it comes to abortion, I think you're going to see the same thing. Issue polling is showing one thing, but the reality on the ground and individual voting outcomes, very different. So I have two thoughts. One is very similar to yours, your first point, Sarah. And the second is a little bit different on the political fallout. So on the first point, I was on a panel at the Aspen Ideas Festival, sort of the kickoff, this part of the festival on Saturday night, and I was the only pro-life person on the panel. And one of the points that one of the panelists made, our friend, Professor Vladek from University of Texas, was, Roe was this earthquake. As I said earlier in the podcast, you know, there had been, there were a lot of earthquake cases 20 years, 50 years ago,

and for almost 20 years, there was a series of earthquake cases. And I don't, I think the idea that said to say that's an earthquake is sort of that it's an earthquake is really an argument about the legal merits of the quake. Those are kind of two different things, because it can't be the case that the earthquakes are one-way ratchets. You can earthquake in one direction, you can't earthquake back if you're just talking about the magnitude of the case. Now, the magnitude of the case can be a factor in judicial decision-making when appropriate, but the magnitude of the case is not the end of the analysis by any stretch. So I would, you know, if you're talking about people who are sort of saying, well, the court is just really politicized and really intervened in American culture in this dramatic way.

And I'm thinking, I'm raising my hand saying, what do you think Roe v. Wade was? I mean, how much more dramatic can you get than Roe? There wasn't a non-dramatic option here, really. And that's what I really try to impress upon people. And the other thing is, I've talked to a lot of very smart progressives while I've been here in Aspen. And let me channel their worry. Here is their worry. Their worry is they believe that the public is broadly supportive of abortion rights with limitations. In other words, you know, they think that if states could settle on sort of a 12-week ban or a 14-week ban like

France has or like exists in a whole bunch of European countries, that that is actually where the majority of people are. They're not actually with the idea that abortion should be protected from conception until delivery. should be protected from conception until delivery. If they're not with that idea, they start to believe, especially when the baby develops more in the second and third trimesters, that there should be some pretty strict limits as the baby develops. And that's sort of, to the extent we have a consensus position in the U.S., that would be the consensus position.

That is what polling shows and has showed forever. It's been remarkably stable. But what they say is the Democratic activist base won't permit the Democratic Party to adopt the popular position. And so there was this interesting moment where Stacey Abrams over the weekend was talking about abortion policy and refused to say in Georgia sort of what limits she would be willing to put on abortion rights. And so on the one hand, the Democrats are saying, well, the Supreme Court's way out of step, 60, 65, 70 percent, whatever number you want to pick, of Americans want to protect abortion rights. And then when they turn around and propose measures to protect abortion rights choose an extreme position supported by 30, 25, 30 percent of Americans and then wonder why that doesn't get traction. And so I think that there's this sort of unwillingness on the part of the Democratic activist base. It's spent almost 50 years

not having to compromise on abortion rights one inch because of Roe. Just to be clear, neither did Republicans. No. Republicans have this exact same problem on the other extreme. I think Republicans actually have a worse deal with it, though, because Democrats have a message on this, which is, yeah, no, we don't support any limits because we trust a woman to make that decision with her doctor, that women aren't taking this decision frivolously.

And so you don't put limits on it because that's the trust that you place in the individual woman and her doctor and her religious advisor to make that decision. On the flip side, you have Republicans who are going to be sort of in a race to the back, to the front, if you will, whatever you want to call it, of 15 weeks isn't going to be good enough, six weeks isn't going to be good enough. And then you end up with this weird, like, life begins at fertilization law, where IVF is then going to become impossible in those states, which isn't going to work. Yeah, there's no question that Republicans have passed a lot of laws that when they were passed, there was no intention for them to go into effect, that this was political signaling to sort of demonstrate, well, this is how pro-life I am.

And they were immediately enjoined. They were immediately enjoined. So now red states are going to have the laws that they passed enacted, and it remains to be seen how the public responds to that. Now, what's interesting is if you look at some of these trigger laws in the states where some of these more strict abortion laws are locking into place, they were also states previously before Dobbs with very low abortion rates. So these were states that already had, relative to other states in the

union, really low abortion rates. So abortion had really become much less a part of the experience of women in these states. And so it will be interesting to see what the political effect is when there's abortion bans in states that already had very low rates. So I don't know the answer to that. We'll see. But I do know that a lot of laws are going into effect that were voted on by state legislatures with the understanding that they never go into effect. And the thing I'll be looking for in these state laws, to be clear, is that they define abortion to make clear that it has to only apply to a fetus that is living. That would cut out miscarriages

immediately. And then they have to have a separate abortion does not include in its definition any non-living fetus, by which I mean a heartbeat or anything like that to include miscarriages. And a definition of abortion cannot include an ectopic pregnancy where the fetus is implanted anywhere other than the uterus, because once those are within the definition of abortion, you get into some bad drafting where they're having trouble differentiating between the two. Hey, David, can I make one other point about the gun case? Yes. Yes. Justice Scalia was the intellectual leader of the court, and Justice Thomas was simply following him. That he didn't have sort of his own intellectual heft to him. He was like a sidekick.

There was definitely some racial component to that, I want to say, just from the outset. But also, it was just wrong. So, for instance, here's a question I got from someone. I always thought of originalism as the method of applying the tiers of scrutiny rather than originalism being the test itself. And my answer to that is yes, but this is the transition framework of how you go about it. But Scalia was pretty clear that there was going to be a diversity of historical analysis, that there was, you know, less room for policy preferences, but still it was giving you a ballpark. That's not what Thomas's judicial philosophy is. And so I think a lot of people are still in this sort of Scalia-ism originalism. And Thomas is telling you in the gun case, welcome to Thomas-ism originalism. And they're quite different. Yeah. Welcome to Thomas

land. That's right. Now, the interesting question is if, if here's the last question, because I have to jump off, but so here's this interesting question. If Thomas is an intellectual leader, more of an intellectual leader than people have given him credit for, what does that mean for his analysis of substantive due process? Doesn't, isn't that a point for those who say, wait a minute, these other substantive due process cases that Alito and Kavanaugh have assured us are not in danger, aren't they in more danger if Thomas is now an intellectual leader on the court? So on the substantive due process side, yes, I absolutely think that a majority of justices

agree with him that those cases were wrongly decided and that substantive due process is dead. The difference is when you then get to the stare decisis analysis of whether you overturn a case and you get to that reliance interest issue. And on Obergefell, I think it's really clear. On Griswold, I still think the reliance issue is really different than the Roe analysis, but I accept those who are telling me that, like, it's closer than you think. If abortion's reliance interest is only for the difference between, in this case from Mississippi, 15 weeks to 24 weeks from Roe, then why is Griswold any different? I think you can argue that one sets their marital life around the ability to access contraception and that that is a reliance interest as a society,

vasectomies, like all sorts of other things. Again, of course, even if that got overturned, I understand some people are telling me that they think their state legislature would ban birth control. Okay, I don't agree. Yeah, I don't think a single state legislature would do that. But I think you're right. Here's the way I would put it. You will not see with this court another substantive due process decision. But you won't see a reversal of prior substantive due process decisions.

And that's my prediction. I could be wrong. I think, you know, you would have to sort of say that Alito and Kavanaugh are just not telling the truth to say that I'm wrong. I don't think that's the case. But I would, I think that substantive due process is a source of newer or expanded rights is gone. But that doesn't mean that those prior precedents will be overruled. Okay, David, last question. Paul Clement announced that he and his partner Aaron Murphy are out at Kirkland and Ellis. It's related to the gun case. Kirkland telling them that they could no longer represent their winning clients in the gun

case as that litigation will continue to some extent, and Paul Clement saying you simply cannot drop a client in the middle of representation, that that violated his ethical codes. It's the second time that Paul Clement and Aaron Murphy have left their law firm over this exact question of dropping a client. However, the last time it was over DOMA, the Defense of Marriage Act. And in that case, there actually did seem to be some possibility that the law firm didn't know that they had taken on that client. Roughly two weeks after that representation was signed on to, they're pushed out of their law firm. That's how the little boutique law firm Bancroft starts as a spinoff from King and Spaulding. Kirkland then

takes in all of Bancroft. They've been representing this client, the New York Gun and Rifle Association, is it called, David? New York Rifle and Pistol. Yeah. They've been representing them for years. The law firm can't claim that they didn't know or sign off or approve of the representation. They're just saying that because the client won, they don't want them representing them anymore. What are your thoughts on the, again, set aside the merits of the case, just the legal ethical part of this. So two thoughts. One, Paul Clement's going to be fine. He's in the realm of lawyers who are uncancellable in that rarefied air. But two, this is absurd. This is absurd. And it really undercuts this sort of idea that law firms have raised, law firms that have represented Guantanamo

Bay inmates, for example. And when people have critiqued them and they said, how dare you judge us by our clients, right? Because people deserve representation. And we're talking, we're vindicating important constitutional rights here. And I agree with that. with that. Even war criminals deserve legal representation, and lawyers have to step up and do that, even if the public loathes and despises them for it. But to then turn around and say, well, don't judge us for our clients, but we're going to be culling our attorneys because of their clients is a little bit of an inconsistent message there, Sarah. And it's one that I think, what is it, guys? Do you want us to judge you for your clients or do not? Because pick one. You can't have it both ways. You cannot sit there and tell the public when you're representing somebody

who's truly loathsome, well, you can't judge us and then turn around and push out lawyers who are engaged for no ethical reason at all. There's no ethical reason why they're pushed out because, well, I find their clients too distasteful. So I'm sorry, guys. But only after they won at the Supreme Court. Yeah. Just a few hours after they were pushed out, they published a Wall Street Journal op-ed. The timing was interesting. You know, everyone has an op-ed in their back pocket, as David Latz said, just in case they get pushed out of their law firm on a Friday. A lawyer can withdraw from representing a client for good reason, like a newly discovered conflict of interest. But defending unpopular clients is what we do. The rare individuals and companies

lucky enough to be universally popular for the time being have less need for lawyers. And the least popular clients are most in need of representation, from the British soldiers after the Boston massacre to the defendant in the Boston Marathon bombing. Our adversarial system of justice depends on the representation of controversial clients, no matter which side has most of big law rooting for it. This is particularly true in constitutional cases. Many of our fundamental constitutional guarantees are designed to be counter-majoritarian,

and many have been vindicated by litigants who are deeply unpopular, but still have a right to march through Skokie, Illinois, to confront witnesses against them or defend themselves from violence. You know, this was a great line. The Constitution is the foundation of American liberty, but it isn't self-executing. It depends on lawyers who are willing to take on controversial matters and on judges who are able to hear the best possible arguments from both sides. And they end with, we are sticking with our clients.

Yes. And look, you know, sometimes vindicating constitutional rights. I mean, the Nazis marching through Skokie. I've had my own clients who were, who said some horrible things. I mean, horrible. When I was at fire, we came to the defense of this University of Colorado professor named Ward Churchill, who compared the 9-11 victims, Sarah, to little Adolph Eichmanns. The 9-11 victims. Not great. That's bad. That's bad. It's also constitutionally protected speech. And at FIRE, the decision that FIRE made from its founding is it protects constitutionally protected speech. And we had some people who'd say, not that speech, not that speech.

But if you say, I'm not protecting constitutionally protected speech anymore, you're not a civil liberties organization so much as an advocacy organization for preferred points of view. And FIRE, to its credit, has long maintained that integrity. It goes to the ramparts for constitutionally protected speech, even if, you know, the speech makes you throw up in your mouth a little bit. And, you know, this idea that, well, you know, we're this noble legal profession and how dare you judges for our bad clients. And then, oh, wait, we're going to judge our own people for their bad client. No, no. It was absurd. But all right, Sarah. We've still got more opinions to come. We've got climate change, which will determine who gets to

decide, Congress or the president. All right, listeners. Thanks for joining us. I think we have thousands of new listeners, Sarah. We've had thousands of new listeners after the Dobbs decision. Welcome to Advisory Opinions. And if you're a new listener and if you like what you've heard, please go rate us on Apple Podcasts or wherever you get your podcasts. Please subscribe wherever you get your podcasts. And subscribe wherever you get your podcasts. And please check out thedispatch.com. Shop with Rakuten and you'll get it. What's it?

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