Monday, June 27, 2022

Another Supreme Broadside

The Roberts Court has effectively dismantled the line between church and state in public education with Justice Gorsuch's decision in Kennedy v Bremerton School District, tossing out decades of precedent in a 6-3 decision and declaring that an Oregon high school football coach's post-game prayer sessions with students were constitutional, whether the students wanted it or not

Justice Gorsuch wrote that Mr. Kennedy had sought only to offer a brief, silent and solitary prayer. Justice Sotomayor responded that the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not.stice Gorsuch wrote that the coach, at least after the games at issue in the case, “offered his prayers quietly while his students were otherwise occupied.

Justice Sotomayor gave a different account of the facts, taking account of a longer time period.

“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer,” she wrote. In an unusual move, the dissent included photographs showing Mr. Kennedy kneeling with players and others.

Justice Gorsuch wrote that Mr. Kennedy was not speaking for the school when he prayed.

“He was not instructing players, discussing strategy, encouraging better on-field performance or engaged in any other speech the district paid him to produce as a coach,” Justice Gorsuch wrote.

Instead, he wrote, Mr. Kennedy merely took a moment to pray while others checked their text messages or greeted friends.

Not everything school employees do during work hours is official conduct, Justice Gorsuch wrote. If it were, he said, “a school could fire a Muslim teacher for wearing a head scarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett joined all of Justice Gorsuch’s majority opinion. Justice Brett M. Kavanaugh joined most of it.

In dissent, Justice Sotomayor said Mr. Kennedy effectively coerced students into praying with him.

“Students look up to their teachers and coaches as role models and seek their approval,” she wrote. “Students also depend on this approval for tangible benefits. Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting.”

Justice Gorsuch responded that he rejected “the view that the only acceptable government role models for students are those who eschew any visible religious expression.”

In the process of ruling for Mr. Kennedy, the majority disavowed a major precedent on the First Amendment’s establishment clause, Lemon v. Kurtzman. That ruling, in 1971, set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.

In Justice Gorsuch’s account, the Lemon test had already been discarded. But Justice Sotomayor wrote that the majority had just now overruled it.

She acknowledged that the test had been subject to frequent criticism by various members of the court. “The court now goes much further,” she wrote, “overruling Lemon entirely and in all contexts.”

Justices Stephen G. Breyer and Elena Kagan joined Justice Sotomayor’s dissent.

Over the last 60 years, the Supreme Court has rejected prayer in public schools, at least when it was officially required or part of a formal ceremony like a high school graduation. As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendment’s prohibition of government establishment of religion.

“The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” Justice John Paul Stevens wrote for the majority in that case.

Justice Gorsuch wrote that those precedents did not apply to Mr. Kennedy’s conduct.

“The prayers for which Mr. Kennedy was disciplined were not publicly broadcast or recited to a captive audience,” he wrote. “Students were not required or expected to participate.”
So, by tossing the Lemon test and saying that Coach Kennedy was not speaking for the school because it was an extra-curricular activity, the barrier between prayer and secular school now has a huge hole in the side that well, you could run a varsity football team through.

We're getting very, very close to Default Christian American Religion here and students being punished for not being Christian.

That's the next speed bump on this slope towards theocratic schools.

The Suburbs Of Gilead

Republicans are pretty confident that the tens of millions of women who lost access to abortion on Friday will either stay home or vote Republican over $5 gas, that rage will fade, and that eventually women will simply accept the new regime.

On the left and among Democrats, the U.S. Supreme Court’s decision overturning Roe v. Wade on Friday was an earthshaking event. It prompted demonstrations across the country, a torrent of outrage and despair on social media, and big political speeches — including President Biden and other Democrats saying that “Roe is on the ballot” in this fall’s midterm elections.

The reaction was far more casual on the right. In conversations with over a half-dozen Republican insiders, who were granted anonymity to discuss the political ramifications frankly, there was a lingering sense of skepticism that abortion would still be a major issue in November and a belief that, even if it is, it might actually redound to the benefit of the GOP.

This wasn’t to say abortion wouldn’t matter in the midterms, but that the issue wouldn’t make a decisive difference at a time when voters have other problems on their minds. “Democrats are going to run on this but they are only going to run on this because they have no other choices this cycle,” one national Republican operative said. “It’s all they have at the end of the day when inflation is high and the economy is sagging.”

A D.C.-based operative noted that “in the immediate few weeks, there will be a lot of outrage as the dust settles, but this is a state-by-state, district-by-district issue.” The operative added that while the Dobbs decision might cause Democratic voters to turn out more heavily in deep-blue areas, there is doubt within GOP circles that this will cause a surge in Democratic voters in Texas or Florida. “People don’t notice abortion on a daily basis,” the operative argued. “They notice how much bacon costs for their kids and how much gas costs to fill up their car.”

There was some sense that the Court’s ruling was “a double-edged sword,” as one social conservative activist acknowledged. “It could help Democrats by reinvigorating them and pumping them up to get angry and turn out in the midterms, that could happen.” But there was also the belief that there are only limited gains to be had in the midterms. As the national operative explained it, “the problem that Democrats have here is that people who really care about abortion and are single-issue pro-choice voters are already all voting Democratic. If you dive into the polling, they are already squeezing every bit of juice out of young college-educated women, who are the group of people most motivated by this.”

And some of the Republicans thought it could actually be a net plus for the GOP in the fall. This was not because of the impact of the issue per se, but a sense that Democrats would turn it into a self-inflicted wound. “Democrats are going to overplay their hand,” one well-connected Republican predicted. “They overplay every hand they get.” The insider thought, for instance, that “there’s going to be violence and [Democrats are] not going to denounce the violence.” Another red-state operative put it more bluntly: The sight of “a bunch of pink-haired women lighting fires in the streets” was not going to motivate moderate pro-choice women to vote for Democrats.

A senior Capitol Hill staffer made a similar point: “The left has lost the plot so much, it will neutralize what will be a vote-moving issue. The traditional left argument is about protecting women, but now they can’t even say what a woman is.” As the red-state operative wondered, the question is also whether abortion becomes a separate issue from the current cultural wars or if it just becomes “part and parcel with drag-queen story time and teaching kids hypersexual content in schools” and the other social issues currently animating the right.

Further, the well-connected Republican thought the heated rhetoric being used on the left would leave voters skeptical. “What it’s going to do is crystallize dishonesty and lack of integrity of the Democratic Party,” they claimed. “We are in a situation where Democrats are doing their best Chicken Little impression and most people are going to find out their lives don’t change at all. AOC is the one being shown all over the news, saying ‘women’s rights being taken away, next they’re going to come after gay marriage and come after birth control.’ They’re not, nobody cares about that, and voters are going to see the sky isn’t falling.” Or as the D.C.-based operative reasoned, “The country has survived a majority of our years without Roe v. Wade. Things will be fine. We’ll figure it out.”


If I'm reading this correctly, Republican strategists completely believe that enough women will vote for Republicans over completing the death of Roe to not only nullify the women voting for Democrats against the GOP in November because of their loss of rights to their own bodies, but enough women will do so to make the Roberts Court decision a net positive in the election.

That's magical thinking, frankly.  But neither am I convinced that Roe's demise will somehow save House Democrats from losing control of the chamber, either. Other factors may very well do so, namely the January 6th prosecutions scheduled to resume after July 4th.  But women will not be "fine" as this particular GOP strategist claims. This will be a world-ending moment for a lot of women, and women will realize that women they know, care about, and love are going to be hurt by this.

We'll see if that translates into votes.

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