Gorsuch and Sotomayor’s extraordinary factual dispute

The case was a significant test of how the court balances free speech and religious liberty against the establishment clause, with the court increasingly giving more weight to the former. In a dissent, Justice Sonia Sotomayor took issue with Justice Neil M. Gorsuch’s portrayal of the facts in the majority opinion; she even took the extraordinary step of using photos that she estimated undercut his summary of the case. She said the opinion “misconstrues the facts” regarding whether then-Bremerton (Wash.) High School football coach Joseph Kennedy’s prayers were “quiet” and “private.”

Gorsuch began his opinion by stating:

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. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway.

Gorsuch later writes that the evidence makes clear “that Mr. Kennedy has demonstrated that his speech was private speech, not government speech.”

Sotomayor said this was, in fact, a misrepresentation:

To the degree the court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a long-standing practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer at the same time and location. The court ignores this history. The court also ignores the severe disruption to school events caused by Kennedy’s conduct.

While some have portrayed this as Sotomayor’s having accused Gorsuch of lying, a more accurate summary would be that she believes Gorsuch misled through his choice of relevant facts.

Essentially, there is a lengthy, years-long history in this case that includes suggestions that players might have felt compelled to participate. Sotomayor argues that this was important in determining whether Kennedy’s conduct violated the separation of church and state, even after he was issued warnings and his players no longer participated.

Gorsuch dismissed the evidence of that and its importance in evaluating the matter at hand.

A brief timeline:

• 2008: Kennedy becomes a coach and soon begins saying prayers at the end of games.
• September 2015: An opposing coach informs the Bremerton High School principal that Kennedy asked his team to join in the prayer. The school district begins an inquiry, finding that over time the prayers began to include a majority of Kennedy’s team.
• Sept. 11, 2015: The school’s athletic director tells Kennedy that he should not be conducting prayers with players. Kennedy conducts a prayer, anyway, and later posts on Facebook that he thought he might be fired.
• Sept. 17, 2015: The school district’s superintendent tells Kennedy the prayers are likely to violate the establishment clause of the Constitution and could expose the district to legal liability. He says the proceedings must remain secular. Kennedy initially abides, giving a secular speech and returning to the field to pray after everyone had gone.
• Oct. 14, 2015: An attorney Kennedy hired tells the school district that Kennedy will resume the prayers after an upcoming Oct. 16 game. The attorney asks the district to clarify that this is Kennedy’s private speech and that he be allowed to conduct this “private religious expression” alone. Kennedy begins doing media interviews publicizing his plans.
• Oct. 16, 2015: Before the game, the district warns Kennedy against “any overt actions” that could “appea[r] to a reasonable observer to endorse … prayer … while he is on duty as a District-paid coach.” After the game, Kennedy conducts a brief prayer, at which he is joined by players from the opposing team and members of the community.
• Oct. 23, 2015: The district sends Kennedy another letter objecting to the prayers and raising the prospect of his violating the establishment clause. After a game that day, Kennedy again prays at midfield, this time with nobody joining him.
• Oct. 26, 2015: Kennedy prays on the field after another game, this time with some adults joining him.
• Oct. 28, 2015: Kennedy is suspended. The district would later advise against his rehiring. He would not return as coach.

The crux of the matter is whether these prayers might have made students feel compelled to participate. Sotomayor argues that there is plenty in the factual record to suggest that that, indeed, happened, and that this is relevant in evaluating Kennedy’s conduct after the warnings. (Sotomayor also argued that Kennedy’s promotion of his cause in the media undercut the idea that his prayer was “quiet.”)

“The record before the Court bears this out. The District Court found, in the evidentiary record, that some students reported joining Kennedy’s prayer because they felt social pressure to follow their coach and teammates,” she wrote. “Kennedy told the District that he began his prayers alone and that players followed each other over time until a majority of the team joined him, an evolution showing coercive pressure at work.”

She noted that the courts have in the past regarded children as particularly susceptible to explicit and implicit pressure.

Gorsuch dismisses that argument, though.

“Nor is there any record evidence that students felt pressured to participate in these prayers,” Gorsuch said. “To the contrary, and as we have seen, not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.”

Thus, while summarizing the history in his opinion, Gorsuch decided that it was only the October games that were relevant in evaluating the core issue.

“The contested exercise before us does not involve leading prayers with the team or before any other captive audience,” Gorsuch wrote, adding: “The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.”

Sotomayor said that while the discipline was focused on those three games, the earlier parts of the timeline are wholly relevant.

“This Court’s precedents, however, do not permit isolating government actions from their context in determining whether they violate the Establishment Clause,” she wrote. “To the contrary, this Court has repeatedly stated that Establishment Clause inquiries are fact specific and require careful consideration of the origins and practical reality of the specific practice at issue.”

Remarkably, this isn’t even the first time that this dispute has arisen. When a federal appeals court last year declined to rehear the case, Judge Diarmuid F. O’Scannlain and others objected.

But, in his own scathing rebuttal, Judge Milan D. Smith — a George W. Bush appointee — echoed Sotomayor in deriding O’Scannlain for his factual summary.

“Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant,” Smith wrote, “to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers.”

Smith proceeded to include pictures, just like Sotomayor later would, and even created a table comparing various “unmoored claim[s]” O’Scannlain made alongside Smith’s own summary of “What the record actually shows.”

Smith concluded by saying, “I hope as this case proceeds that the truth of what actually happened will prevail …”

Apparently, not even the Supreme Court could agree on that.