0:00:00.0 Speaker 1: We'll hear argument first this morning in case 21-418 Kennedy versus Bremerton School District.

[music]

0:00:10.2 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about Kennedy v. Bremerton School District. The ruling which came down this summer, grants a school football coach the right to pray on the field after games. It also overturns a long-held legal test that the courts have used to determine whether or not a religious activity is acceptable.

0:00:34.3 Speaker 3: The ruling follows the Roberts Court's pattern of holding up religious rights, and it goes against years of precedent where the court has held that students could not be pressured to participate in religious activities.

0:00:45.8 Leon: Today's case is one in a series from this term in which modern precedent has been overturned and replaced with the vague notion that history and tradition should guide decisions going forward. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have devoured our civil rights, like my cat devouring the salmon I made when I'm not looking. I'm Peter.

0:01:16.8 Rhiannon: Did she do that?

0:01:17.3 Peter: Yeah. She's...

0:01:21.3 Rhiannon: Didn't she do it with a chicken?

0:01:22.4 Peter: She once took the carcass of an entire Cornish game hen as I believe what you're recalling and dragged it under the bed and consumed it, bone and all. It was gone.

0:01:32.6 Rhiannon: She's bougie. She's not quite a barn cat but... [laughter] But close.

0:01:38.6 Peter: No. But look, tomorrow is her seventh birthday. I love her very much and she haunts my waking life. So happy birthday as well. [laughter] I'm here with Michael.

0:01:50.0 Michael: Hey everybody.

0:01:51.2 Peter: And Rhiannon.

0:01:51.5 Rhiannon: Hi. Hello.

0:01:53.6 Peter: And we're doing a case, right? Okay.

0:01:54.5 Michael: Yeah.

0:01:56.6 Rhiannon: Yeah. It turns out we are doing a case.

0:02:00.0 Peter: And today's case is Kennedy v. Bremerton School District. This is a case from this past term, and in fact, just a few weeks ago about school prayer. Specifically, it is about a high school football coach who engaged in public prayer after football games, was asked to stop by his school, refused and was put on paid leave. He then sued, claiming that his first amendment right to exercise his religion and his first amendment speech rights were being violated. And the Supreme Court in a six to three opinion written by Justice Neil Gorsuch, they agreed with him. So this case is about the increasingly fragile balance between the rights to practice your religion and the separation of church and state. And it is also a case about the willingness of the conservatives on the Supreme Court to straight up lie right to your fucking face.

0:03:01.1 Michael: [laughter] Yup. Yup.

0:03:02.5 Peter: Because the majority opinion mischaracterizes several facts here in a way that can only be construed as intentionally dishonest.

0:03:09.3 Rhiannon: Absolutely.

0:03:10.8 Peter: So Rhi, take it away.

0:03:13.5 Rhiannon: Yeah. I wanna say that a lot of this background story comes from Sotomayor's dissent, and I think it's because she picks up on the extremely selective telling of this story by the majority, and to say it's selective is generous. They straight up lie. And so Sotomayor almost does like a painstaking review of the facts. And so that's where a lot of this background comes from. So shoutout to her, I guess. [laughter] So this case comes out of Kitsap County, Washington. Kitsap County is the home to Bremerton School District, which serves just over 5000 students and employs more than 700 teachers and personnel. And the employees and the students in this school district represent several different religions and non-religious people alike. So Coach Joseph Kennedy, he was hired in 2008 by the Bremerton School District as the junior varsity football coach and the assistant varsity football coach. In 2015, it came to the school district's attention that Coach Kennedy was leading a prayer on the 50 yard line after football games, and the school district kind of opened up an inquiry. What they found was that Coach Kennedy had in fact been leading that prayer since 2008.

0:04:34.1 Rhiannon: And while according to Kennedy, the prayer had started out solo, he said that initially he just took a knee at the 50 yard line and was praying by himself. But over time, the school district found things evolved into basically the majority of the team joining him in knelt prayer after the game on the 50 yard line, immediately after shaking hands with the opposing team. This was happening at every game. So the prayers also over time turned into these kind of long post-game speeches with overtly religious references. He would hold up students' helmets while students kneeled around him. And this was again happening after every single game. And it wasn't just the extremely public display on the 50 yard line, Coach Kennedy also was leading prayers in the locker room in which students participated in those prayers. So the district tells Kennedy to quit it, quit doing this. Because his behavior likely violated the Establishment Clause of the constitution and opened up the school district to legal liability. The school district does not wanna get sued because of what Coach Kennedy is doing. So Kennedy turns around, comes back and says he's doing this on his own time, it's a private prayer and he's doing it after his duties as a school district employee have ceased. Basically saying, "Look, I'm off the clock, okay? I can pray however I want off the clock."

0:06:01.4 Rhiannon: But the district comes back and points out that his prayers occurred "immediately following completion of the football game when students are still on the football field in uniform under the stadium lights with the audience still in attendance and while Kennedy is still in his district issued and district logo'ed attire". Bruh...

0:06:25.7 Michael: Sounds like you're on the clock, buddy.

0:06:27.9 Rhiannon: You're not off the clock. [laughter]

0:06:28.0 Michael: Very much, very much on the clock.

0:06:29.3 Rhiannon: Yeah.

0:06:30.4 Peter: A lot of evidence.

0:06:30.6 Rhiannon: You are working. And so Kennedy, for his part, goes on a media spree, talking to local TV and print reporters about his right to pray in front of a bunch of kids. And despite the directives from the school district, Kennedy prayed on the 50-yard line after the next two football games, after the school district told him to stop. So because of the media spree, he garnered a bunch of supporters who showed up at the games; at those last two games to join him in the prayer, even though they're not even affiliated with the school or the school district. So as soon as he walked out to the 50-yard line at the end of the game, reporters and TV cameras surrounded him, members of the public rushed to the field to join, some state representatives were there.

0:07:22.4 Peter: Imagine going to a high school football game just so you can wait till the end when the coach prays and charge to the field. What a bunch of fucking losers.

0:07:32.5 Rhiannon: And charge to the field. Kids in the school band got knocked over.

[laughter]

0:07:38.1 Peter: Well, that's obviously funny. I'm not gonna...

0:07:40.9 Rhiannon: It's so funny. It's not funny, but it's just so funny that these fucking insane people were there to rush to the field of a high school football game so that they could pray with the coach.

0:07:52.1 Peter: Trampling people so that you can pray.

0:07:53.7 Rhiannon: Yeah. In the meantime, they're crushing children. It's too good.

0:07:58.3 Michael: These are people who in their free time go protest at abortion clinics or at gay funerals, that's...

0:08:06.1 Rhiannon: That's right. That's exactly the type. Yeah, so good. Anyways, so after these incidents, Coach Kennedy is put on paid administrative leave. Now, while these issues are coming up, parents reached out to the district saying that their children had only participated in Kennedy's prayers because they felt they were gonna be separating themselves from the rest of the team if they didn't join. In fact, all of this sort of public melee around this issue caused a lot of ostracization around the school. And in fact, the head coach of the football team resigned after 11 years at that position because of death threats that the school was receiving, and the coaching staff. And three of five of the other assistant coaches did not reapply the next year.

0:08:55.3 Peter: "Hey, honey, I'm just gonna blast off this death threat and then let's go knock over some school drummer from the marching band so that we can get onto the field and pray."

0:09:02.8 Michael: So we can pray.

[laughter]

0:09:08.1 Rhiannon: So Kennedy sued. He said his rights are being violated, his rights to exercise his own religion and his free speech rights. And the Supreme Court, the modern-day Supreme Court is just all too ready to take this case up.

0:09:24.6 Peter: Yeah. Can we just quickly say these poor school administrators, they're just like, "I think this violates the law, buddy." And then he tells everyone. And then people are like, "We're gonna fucking kill you." And then he sues you.

[laughter]

0:09:35.8 Rhiannon: Right. Right, exactly.

0:09:38.8 Michael: And they do everything they can to accommodate him. They're like, "Yeah, you wanna give a speech at midfield, just keep it secular and then pray after all the students have gone home or whatever." They're going out of their way to... And he's just like, "Fuck that. I'm a fucking minister."

[laughter]

0:09:57.5 Rhiannon: Yeah. "I'm bringing in the news, baby."

0:10:00.6 Peter: So let's talk law. There are two constitutional provisions at work here. First you have the Free Exercise Clause, which says that individuals have the right to freely practice their religion. And then you have the Establishment Clause, which says that the government cannot respect an establishment of religion, colloquially known as a separation of church and state. You also have free speech issues mixed up in here. So let's talk about the two religion clauses. There's an inherent tension where the coach has a right to practice his religion, but the school cannot be perceived as endorsing religion. And the way that courts have resolved this is by saying that private prayers at school are generally going to be acceptable, whereas public prayers that may seem to reflect the endorsement of religion or potentially have a coercive effect on students are generally not going to be allowed.

0:10:53.5 Peter: But those boundaries are often hazy. And as a result, the court has been called upon to draw some lines here. However, what the majority opinion does to address all of this rather than trying to clarify the law is just flagrantly lie about what actually happened here. What the majority does is claim that the coach here engaged in a private prayer. The opinion starts, "Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks."

0:11:30.0 Rhiannon: Oh, my God.

0:11:31.4 Peter: It goes on to say that, "He offered his prayers quietly while his students were otherwise occupied." Again, what actually happened is the coach, after football games would lead a prayer at the 50-yard line. It was not done while his students were otherwise occupied. Kennedy himself openly states that everyone present was free to join and students often did. He would pray out loud, he would sometimes hold up students' helmets, like one in each hand, as he did. At one game, as Rhi mentioned, his media blitz resulted in there being television cameras and politicians present. Gorsuch says, "Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer. This event spurred media coverage of Mr. Kennedy's dilemma." To be clear, this event did not spur media coverage, media was present at the game because the coach had gone on television to talk about it.

0:12:31.8 Rhiannon: Yes.

0:12:32.9 Michael: Yes.

0:12:33.4 Rhiannon: Yes.

0:12:33.6 Michael: Yes.

0:12:34.0 Peter: Sotomayor's dissent, which we'll get to in more detail shortly, includes pictures of the prayers. Because I guess she was so exasperated with the way that Gorsuch was lying about this that she was like, "How about we just put some fucking pictures in the record here?" [laughter] In one of the pictures, the coach is holding up two helmets, one in each hand, surrounded by a crowd of about three dozen players. There's just no other way to put this. If you think this is a private, quiet prayer of thanks, you are a complete fucking moron.

0:13:06.4 Rhiannon: Yeah. Period.

0:13:07.6 Peter: If this is a private prayer, what would a public prayer even look like?

0:13:12.4 Rhiannon: Right? Yeah.

0:13:13.0 Michael: Right.

0:13:13.6 Rhiannon: Is that just Joel Osteen's megachurch shit?

0:13:16.6 Peter: Right. I mean, if everyone is welcome to join and people do, is that not public? Is that not the very definition of public? Am I missing something about the definition of public here? Final cherry on top, Gorsuch also consistently states that the coach was fired when he was in fact placed on paid administrative leave. Perhaps a minor point, but just worth noting that Gorsuch is just... He's just rolling here. He's just... He's just sure. Let's just say he was fired. Fuck it. At this point, why not, right?

0:13:46.4 Rhiannon: Exactly.

0:13:50.3 Peter: Now built into this analysis is also the question of whether the coach's conduct is coercive. When asking whether the Establishment Clause is being violated by a school, there is ostensibly supposed to be an analysis of whether the conduct might coerce students into religious exercise. And in fact, as Rhi mentioned, it's part of the record that parents complain to the district that their children felt compelled to join the prayers.

0:14:14.2 Rhiannon: Yeah, of course.

0:14:15.5 Peter: Makes sense. He's an authority figure. He controls their playing time...

0:14:19.5 Rhiannon: Totally.

0:14:19.6 Peter: And stuff like that. Gorsuch blows this off first by saying this is hearsay and then by using a tactic that he uses throughout the opinion, which is focusing entirely on a couple of incidents where Bremerton students did not join the coach in prayer and basically being like, "Well see, there's no evidence that students were being coerced," which first of all, ignores the fact that a coach doing this publicly has inherently coercive qualities because he's in a position of authority, and second, ignores the many times that students did join him, which we have pictures of.

0:14:53.9 Rhiannon: Yeah.

0:14:55.4 Peter: And by the way, Gorsuch does not address the pictures. Gorsuch is not like, "Let me explain those pictures that make it clear that I'm lying." He just ignores them.

0:15:02.9 Michael: Yeah. This fucking opinion, man.

0:15:06.6 Peter: Yeah. I mean just unbelievably dishonest shit. And not only does he brush off the potential for coercion here, he actually chastises anyone who would complain about this, saying that what this case is really about is the coach's free speech and free exercise rights and that tolerating this sort of thing is part of living in a pluralistic society.

0:15:28.6 Michael: Oh my God.

0:15:29.7 Rhiannon: Yeah. You're an intolerant freak if you're not okay with this guy.

0:15:33.7 Peter: Right. So not only is the coach right, but also how dare you? How dare you even suggest that he's wrong, you bigot. Now again, the irony about his pluralistic society point is that the school is just doing its best to comply with the law, while the coach's supporters are sending death threats to school administrators. So who's really trying to live in a pluralistic society here, right?

0:16:05.2 Michael: Right.

0:16:05.5 Rhiannon: Yeah. That's exactly right. And you know, we should highlight that the court here is actually overruling an older case. It's a case called Lemon v. Kurtzman. And that case is from the early '70s. But what happened in that case is that the Supreme Court laid out this test for whether the government's actions vis-a-vis, religion or religious display was a violation of the Establishment Clause. And the Lemon test says a couple of things, but basically it says that the government's actions with respect to religion, they have to have a secular legislative purpose. The primary effect of this religious action or religious activity has to be neutral with respect to religion. So it can't advance religion and also can't inhibit religion. And finally, that the government can't foster an excessive entanglement with religion. So clearly here, Coach Kennedy is a public school official who is leading a very public prayer during the course of his official duties as a public school employee. That seems to violate the Lemon test. But Gorsuch just kind of does away with the Lemon test entirely. He says, "It's not a good test. We don't like it. Fuck it." And instead says that the Establishment Clause has to be interpreted by reference to historical practices and understandings.

0:17:29.5 Peter: Right. I wanna quickly add that he doesn't say, "Oh, we're overturning the Lemon test." What he actually says is, "The Lemon test has actually been abandoned by the court."

0:17:36.8 Michael: Yeah.

0:17:37.9 Rhiannon: Yeah.

0:17:38.1 Michael: Abandoned.

0:17:39.4 Peter: Basically being like, "This never really existed at all," when you think about it.

[laughter]

0:17:45.8 Michael: It's so ridiculous. I mean they overrule it without overruling it. And I appreciate, we'll talk about this, the dissent basically just says that they're overruling it.

0:17:53.9 Peter: Yeah.

0:17:54.3 Rhiannon: Yeah.

0:17:54.8 Michael: Look, I don't wanna opine broadly about the state of religious displays in schools in this country or whatever, but one reason why the court might have abandoned, "The Lemon test," is that we had reached a certain understanding about what is and isn't appropriate displays of religiosity by public employees that had led to maybe a dearth of controversies for the court to consider. I don't know. Maybe not, maybe I'm wrong. But regardless the Lemon test was good law. It's been good law for a while. I learned it in law school, which was... It was not too long ago. [laughter] But the important thing about the Lemon test is they talk about it like not having clear answers for every scenario or whatever, but the important part of it is that it actually is pretty straightforward. It's not that hard to apply. It just, they don't like the answers it's gonna give in most situations.

0:18:58.9 Rhiannon: Exactly.

0:19:00.4 Michael: Because it's not gonna leave a lot of room.

0:19:01.0 Peter: They're pretending that it's unclear. Like this coach is holding helmets above his head and praying to Jesus. And they're like, "Is this... Does this pass the Lemon test? I don't know."

0:19:10.3 Michael: This just goes to show the Lemon test, really is not very useful.

[laughter]

0:19:15.1 Rhiannon: I know.

0:19:18.3 Peter: So like Rhi mentioned, they replaced that test with an analysis of history and tradition. It's sort of unclear what that's supposed to mean when public schools haven't been around for that long.

0:19:30.3 Rhiannon: Right.

0:19:30.9 Peter: Right? Like they weren't... At the time of the founding, public schools would not be around for like 130 years. [laughter] So I don't know what we're supposed to take from this, but I do want to note that this is the third legal test in the span of a week that the court replaced with, "Well, just look to the history and tradition."

0:19:50.9 Rhiannon: Yes, yup.

0:19:51.9 Peter: Right? In Dobbs overturning Roe v. Wade, they say, "Well, our analysis of fundamental rights will be about whether those rights have a long tradition in this country." In Bruen, the gun rights case, they said the same thing, that analysis of gun regulations and gun laws will be done by reference to history, and now they're doing it here.

0:20:15.8 Michael: Mm-hmm.

0:20:15.9 Peter: Every existing legal test is just being replaced with, "Well, look to the history." Which is great if you really enjoy cherry-picking your history to suit your political ends, which they do. It's one of their favorite things.

0:20:30.2 Rhiannon: Yeah, it's also great if you're a regressive hack, right?

0:20:34.9 Michael: I do love the idea of also... They talk about these things like the Lemon test or whatever as like guidance for courts, and it is. But if you are an athletic director or whatever at a public school, does my inferior's behavior look like we're endorsing religion? That's pretty easy like to eyeball as a total novice. Like would the audience think that the school here is endorsing religion is something any fucking schmuck can reason out. What's the history and tradition around religious display by football coaches?

0:21:19.6 Rhiannon: Right.

0:21:20.6 Michael: Like what the fuck are they supposed to do with that? What do you...

0:21:23.4 Peter: Right, like the assistant coach sprints into the room and he's like, "Sir, sir, I've read the Federalist papers and I have terrible news."

[laughter]

0:21:30.0 Michael: What are they supposed to do with this? It's absurd. As far as like guidance to the people on the ground, this is useless, it's beyond useless, it's counter-productive. It's just gonna invite a ton more litigation and also a ton more of these fucking freaks to try to be as overtly religious wherever they can, like in every facet of life.

0:21:54.5 Rhiannon: Yep.

0:21:54.6 Peter: Right. And how far are we from the court explicitly saying this country was founded on Christian principles?

0:22:04.2 Rhiannon: Oh yeah, it's almost there.

0:22:04.3 Michael: Yeah, for sure.

0:22:04.6 Rhiannon: It's at tip of their tongues.

0:22:05.7 Peter: It feels like we're getting there, right?

0:22:07.8 Michael: For sure. This feels like a good time to take a break.

0:22:14.2 Peter: Alright, we are back.

0:22:16.6 Michael: So we should move on to the dissent, which was really good, I thought, by Sotomayor. As we mentioned, it includes visual illustrations, which were very effective.

0:22:30.2 Peter: Yeah. As someone who has to read these, I do appreciate a picture.

0:22:33.5 Rhiannon: Yeah, I liked it.

0:22:34.6 Michael: It's nice. It's pretty thorough. As Rhi mentioned, she goes through all the facts in like excruciating detail, picks apart all the legal analysis that the majority does. I would say the point that I thought was strongest and the point that I think is worth making and emphasizing is another bit of, I don't know if lying is the right word here, but shaping, creative shaping of the facts by the majority, which is that they basically make this about three instances of prayer, which happened after the district told the coach, "Hey, buddy... "

0:23:18.0 Rhiannon: "Cut it out."

0:23:18.1 Michael: "Cut it out." Yeah.

0:23:19.4 Rhiannon: Yeah.

0:23:19.5 Michael: "Enough of this. We just got word from another coach who was like, "Hey, I heard you're letting that coach pray. That's pretty cool." And they were like, "Mmh, maybe you shouldn't do that."

0:23:31.4 Rhiannon: Yeah.

0:23:32.4 Michael: After that, there were three instances of prayer and it was those for which he was disciplined. And so the court very much makes it about an analysis of those three instances of prayer, and it does a very bad job of it. But maybe the worst part of it is pretending like those weren't a continuation of several years of prayer at the 50-yard line, right?

0:23:58.4 Rhiannon: Yeah, exactly.

0:23:58.5 Michael: Like after every single game. Pretending like this is just three instances of prayer and not the continuation of a practice, the continuation of a habit, of a routine, of something that's built into being on the football team.

0:24:13.1 Rhiannon: Right.

0:24:13.4 Peter: Right. Not to mention a purposeful continuation, such that you could assume if they hadn't put him on leave, he would have kept doing.

0:24:20.0 Rhiannon: Exactly.

0:24:20.1 Michael: Right.

0:24:20.2 Rhiannon: Yes.

0:24:20.3 Michael: Exactly. Exactly, right? That's what's going on here is being part of the football team means praying at the 50-yard line after the games or risking being one of the weirdos who doesn't. One of the...

0:24:33.7 Rhiannon: Exactly.

0:24:35.4 Michael: Non-conformers and whatever might come with that, which might mean reduced playing time or not even getting to play the position you wanna play, or whatever, right? Like...

0:24:43.6 Rhiannon: Yeah.

0:24:44.5 Peter: College recommendation letters, right? Like there's all kinds of stuff.

0:24:46.1 Michael: Yeah, maybe you're not getting the rec you want from your coach, maybe you're not getting team captain or something that would look good on your admissions application, right? All those things are at risk if you're not willing to pray at the 50-yard line with the coach, and you know that going in. That's coercive, that's inherently coercive. There's no way about it. There's no getting around that. And yeah, the majority just wants to pretend like that's not true. They just wanna pretend like, "No, this is just some dude by himself." It's such bullshit.

0:25:20.7 Rhiannon: Yeah.

0:25:21.4 Michael: This opinion pissed me off for a variety of reasons, but the dishonesty is bracing.

0:25:27.6 Peter: Yeah, there's something about Gorsuch's... He's always smug, like unbelievably smug and condescending. But to have that tone while also blatantly lying, it's pretty infuriating stuff.

0:25:39.4 Michael: Yes.

0:25:39.5 Rhiannon: Yes.

0:25:39.9 Michael: Yes.

0:25:40.6 Rhiannon: Yeah, there's something even in the couple of pulled quotes from the opinion, Peter, where you were talking about Gorsuch lying. It's so clear that he's making it seem like Michael said, as isolated incidents, just a couple of times that this has happened. So for example, like you said, Gorsuch says, "Though Mr. Kennedy was alone, when he began to pray, players from the other team and members of the community joined him before he finished his prayer." That's so clearly written to describe one singular event, right?

0:26:15.4 Michael: Right.

0:26:15.7 Peter: But also, what he's referring to, I believe, is the time when he had done, already done the media blitz, and people stormed the field to join him.

0:26:24.2 Rhiannon: Yes, that's exactly right.

0:26:27.4 Peter: He's framing it like people noticed him praying, and they were like, "That guy's praying. And I think that's pretty cool, 'cause I love God too, I'm gonna go pray with him." What actually happened was people were like, "He's fucking doing it."

0:26:35.9 Michael: "We're going with him."

0:26:37.9 Peter: Then they all sprinted full speed at the 50 yard line and knocked over various children in the process.

0:26:42.4 Michael: Yeah, the guy who had been praying after every game for seven years was like, "I'm doing it again." And everyone was like, "Yeah, we're gonna do that with you." Because they're also a bunch of religious freaks. And, yeah. That's not an isolated incident, like divorced from the history there, right?

0:27:01.0 Peter: Yeah.

0:27:01.8 Michael: So here's the thing that gets me about this beyond this case. There are challenges going through the law courts right now, coming from Jewish communities, actually, about abortion, saying, "Hey, it's part of the Jewish faith, that when a pregnant person's health is in trouble because of pregnancy, they need to have an abortion. This is consistent with our faith. Our practice of our faith requires an abortion in these instances." So there's some question of how the Supreme Court will handle that. How will their sort of Christian, anti-abortion zealotry meet up with their free exercise zealotry where they just wanna give religious people and especially religious Christians, carte blanche to do whatever the fuck they want? And I think this gives a distressing insight into how that might go, which is that they will just lie about the facts to shape an answer that they like, which means that it might not be the case that it's your deeply held religious belief as a Jewish person, that abortion is required in certain instances. That just might not make it into the facts of the Supreme Court.

0:28:16.8 Rhiannon: Yeah.

0:28:16.8 Peter: You know, in some ways, the fact that they lie and say this was private, is good, because it means that technically, the law is still that public pronouncements of religion by teachers and coaches are generally going to be unconstitutional.

0:28:29.4 Rhiannon: Yeah, that's true. Right.

0:28:30.9 Peter: But I'm not sure how far that gets you if a court can just lean on this case, to declare that obviously, public prayers are private. And moreover, there's just sort of this Orwellian undertone, where the court is saying, "If you're on our team, just bring us the case. And we will tell the lie that you need us to tell."

0:28:48.0 Michael: Right.

0:28:50.4 Rhiannon: Yeah. That really makes me think about the difference here, the sort of in-group out-group that's created by these kinds of government activities and what the court is embracing. The Supreme Court with this case is really embracing rules that overlook minority religions and non-religious people. And as a result, it's the court endorsing the creation of this in-group and an out-group at public schools. I think that's what I find most egregious is that this is happening to kids.

0:29:21.0 Michael: Yeah.

0:29:22.1 Rhiannon: We covered in another case, a similar kind of circumstance in Town of Greece V. Galloway. We covered that case which was about a prayer happening before city council meetings, I believe. And this just seems a step further, because it's happening to children, people who are more vulnerable to coercion. And through these religious displays, we're saying, we're good with the government doing this activity, encouraging or supporting a majoritarian religion, and thereby communicating to a child with any other religious affiliation, that they are in the minority, they're different, their religious displays are not as legitimate, not as cool, not as worthy. And that has real effects on how kids grow up whether you're in the in-group or the out-group. As somebody who grew up Muslim in Texas, also playing sports at school where prayers were held at the beginning of every game, this is like a real legitimate thing that happens and there are real emotions, affiliations that are encouraged by this kind of behavior.

0:30:26.7 Peter: Yeah.

0:30:27.7 Michael: Yeah. Prepping for this case has put me in a bad mood for days. And I spent a lot of time unpacking why. And it really I think goes back to that quote Peter mentioned, at the top learning how to tolerate speech or prayer of all kinds as part of learning how to live in a pluralistic society. And what got me about that is this case coupled with some other high profile cases, at the end of this term, pretty much are the stick in the heart of pluralistic society in America. Like staples of a pluralistic society, are our shared public spaces that we can enjoy freely and comfortably and safely. And the Supreme Court is flooding those with assault rifles, so that you can't go to a public school or a parade, or a library or any of these public spaces that are the lifeblood of a pluralistic society and feel safe. You can't.

0:31:32.4 Rhiannon: Right. Or your place of worship for that matter.

0:31:35.9 Michael: Yeah. Unless your place of worship happens to be, what, like an Evangelical, white Christian Church, then you're probably safe.

0:31:42.3 Rhiannon: Right, right.

0:31:43.6 Michael: The idea of a pluralistic society in America, maybe... I don't wanna get accused of sugarcoating American history in saying that we had one and it's gone. I don't know if we ever did, but it feels like at some point as a society, we at least aspired to it. We at least reached for it. And now I feel like there's a purposeful movement to eliminate that idea entirely, and there's something repulsive about that language being thrown in your face as the Court is establishing Christian hegemony in public spaces.

0:32:27.2 Rhiannon: Right.

0:32:28.2 Peter: Right.

0:32:29.2 Michael: Right. Like you're not actually safe to go out to all these places of secular gathering, but do you know what is safe in those spaces, is Christians professing their Christianity, right? And that's what's safe. A Muslim coach tries that shit, those death threats aren't going to the fucking school board for trying to rein him in, he's the one getting the death threats, right?

0:32:51.9 Rhiannon: Right. That's right.

0:32:52.8 Michael: That's the country we live in now. And it's not a pluralistic one, and it's not a tolerant one, and it's depressing and it's fucking infuriating.

0:33:01.8 Peter: Yeah.

0:33:02.1 Rhiannon: Yeah.

0:33:03.5 Peter: The whole point of protections for minority religions and people who aren't religious, etcetera, is that if you allow people like the coach to publicly and loudly announce their religion, the net effect is that the dominant religions have this megaphone.

0:33:26.9 Michael: Mm-hmm.

0:33:27.3 Peter: Right?

0:33:27.5 Rhiannon: Yes.

0:33:27.9 Peter: The result is not a pluralistic society. The result is the majority religions dominating public spaces, dominating public discourse, and ultimately holding the reins of power and explicitly doing so to further religious ends, which is what we're seeing in this country. And if I could get a little more technical, the majority is prioritizing the free exercise and speech rights of government employees here, rather than trying to find a coherent balance between those rights and the coercive effect of having government employees in positions of power openly endorsing certain religious values. There's a real fundamental problem with that. I wanna make what's maybe a pretty obvious point in some ways, but is often overlooked in these cases, the government, whether it be the federal government or state or municipal governments, just a patch work of institutions, each of them comprised of individuals. If you allow for every individual within those institutions to engage in public endorsements of religion, you are effectively allowing for the institutions themselves to do so. That is especially true in places and circumstances where there are dominant majority religions. How can you prevent the government from endorsing religion, if you cannot prevent any given member of the government from endorsing religion?

0:34:51.5 Peter: What's the difference between having members of a government institution endorse religion and having the institution itself endorse it?

0:35:00.3 Rhiannon: Yeah, exactly.

0:35:01.4 Peter: If every member of a school's administration is Christian and openly espousing their belief, what's the functional difference between that and the school itself declaring itself to be a Christian school?

0:35:11.2 Rhiannon: Exactly, yeah.

0:35:12.5 Michael: And I think it's interesting then to think about how the court treats student speech in contrast. 'Cause here we are talking about how this is potentially just opening up employee, like teacher and administrators' religious speech in a way that could be transformative, but we've talked in the past about how student speech can be quite limited on campus, especially under the current court. And the rationale for that is that students can be disruptive, they can be disruptive to the learning environment, or whatever. I don't know man, this shit sounds pretty disruptive to me.

0:35:56.7 Rhiannon: Yup, yeah.

0:35:57.4 Michael: A fucking local news showing up to the game to cover the prayer, the band getting trampled by a bunch of freaks who would otherwise be at a sporting event, heckling the people for worshipping false idols or whatever, like these are absolute... We are unleashing the nuts to just go disrupt shit willy-nilly, and the court doesn't seem to care at all, probably because they to some degree agree with that speech.

0:36:29.3 Rhiannon: Yeah.

0:36:29.9 Peter: Yeah, and it's important to remember Clarence Thomas believes that Tinker should be overturned. And Tinker was a case where students put black armbands on to signal their opposition to the Vietnam War. Clarence Thomas doesn't even think that should be allowed, but a coach holding two helmets above his head screaming a prayer to 40 people, totally fine. So I wanna talk a little bit about some recent conservative jurisprudence on this stuff, 'cause the Establishment Clause is functionally being ignored. The current court doesn't really believe in the separation of church and state in any meaningful way. This was at play in another case this term Carson v. Makin. We don't have to get into it too much, but I do wanna talk about what I think is the current worst case scenario in this line of jurisprudence, because given recent history, I think worst case scenarios are worth discussing.

0:37:22.3 Rhiannon: Yeah.

0:37:22.7 Peter: So we discussed this a bit in Town of Greece v. Galloway last year, but there is a formerly fringe academic theory that has gotten a foothold on the court with a least Clarence Thomas and maybe Neil Gorsuch, which says that the Establishment Clause does not apply to states at all, meaning that not only can state governments engage with religious institutions and could coaches endorse religion, but states could establish their own official religions. The reason that they believe this is that originally, just like the rest of the Bill of Rights, the Establishment Clause was meant to restrain only the federal government. States could and did establish official religions. The Establishment Clause was intended to prevent the federal government from doing the same and from interfering with state-established religions. But as we have mentioned many times before, the First Amendment is now considered to be incorporated against the states, meaning that it applies to the states just as much as it does to the federal government. Some conservative scholars though, have latched on to the idea that the Establishment Clause should be an exception. They claim that the real goal of the clause was to prevent the federal government from interfering with states' established religions. And so it doesn't make sense to apply the same rule to states.

0:38:45.6 Peter: Now we don't have time to cover all the reasons why this is stupid. Off the top of my head, the Establishment Clause and the Free Exercise Clause are literally in a single sentence separated by a comma.

0:39:00.4 Rhiannon: That's right.

0:39:00.8 Michael: They're clauses. [laughter]

0:39:00.9 Rhiannon: Yeah.

0:39:02.2 Peter: Right, right. So to say that one applies to the states and one doesn't, you're getting a little silly. But also like this analysis just sort of flips the entire concept of incorporation on its head. We all know the Bill of Rights used to apply to just the federal government.

0:39:16.1 Rhiannon: Right.

0:39:16.7 Peter: And that it had nothing to say about state government. But as Gary La Manna said to Paulie Walnuts in season five, episode three of The Sopranos, "A lot of things used to be."

[laughter]

0:39:33.7 Rhiannon: God. [laughter]

0:39:34.9 Peter: I've been waiting for a moment to say that for years.

0:39:36.6 Rhiannon: Yeah. I can tell.

0:39:37.9 Peter: Finally showed up.

0:39:38.6 Rhiannon: Happy for you.

0:39:40.6 Peter: He's a minor character. Relying on the purpose of the clause at the time of the founding just doesn't make much sense here. The point of incorporation is to take the restrictions that once applied only to the federal government and apply them to the states as well, in order to more fully secure the rights of citizens. Establishment Clause prohibited the federal government from establishing a federal religion. If you apply it to the states, then they can't create a state religion. It's not markedly different from the incorporation of any other clauses, not to mention that this interpretation creates incongruities because they believe that free exercise, again, still applies to the states. But how can someone freely exercise their religious belief in a state where there's an official state religion, if their personal religion does not align with the state's? Anyway, I don't wanna get too into it, just wanna sort of point out that this might get worse. Yeah.

0:40:32.7 Michael: Yes.

0:40:32.7 Rhiannon: Yeah, yeah, just flagging it, just planting a tiny little red flag right there.

0:40:38.7 Peter: Little warning shot for my homies.

0:40:40.9 Rhiannon: Yeah.

[music]

0:40:50.6 Peter: Next week, West Virginia v. EPA, a case from not long ago that I don't wanna say destroyed the planet, [laughter] but laid the ground work.

0:41:03.6 Rhiannon: Yeah, it's on the way to that. Yeah.

0:41:05.3 Peter: Yeah.

0:41:05.9 Michael: Yeah.

0:41:06.3 Peter: Yeah. Follow us on Twitter @fivefourpod, support us on Patreon, patreon.com/fivefourpod, all spelled out, premium and ad-free episodes, access to our Slack, special events, all sorts of stuff. Take care of yourselves and we'll see you next week.

0:41:28.5 Michael: 5-4 is presented by prologue projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percy Evelyn and our assistant producer or Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY. And our theme song is by Spatial Relations.

[music]

0:41:57.5 Rachel: I have a question.

0:41:57.6 Peter: Is this related to the podcast?

0:42:00.0 Rachel: Yes. [chuckle] Where do babies come from? [laughter] I feel like all of these people who say that the country is founded on Christian values. If it really was, wouldn't Jesus come up in the constitution? Like they mention God, but that's a very broad concept that applies in basically every religion. So like, where are they getting this Christian shit from? Is there any actual...

0:42:24.7 Peter: Rachel, you stupid bitch. How dare you? How dare...