Monthly Archives: June 2022

Victory for the Praying Football Coach: Free Exercise over Establishment

From the point of view of the Bremerton, Washington, school district, allowing football coach Joseph Kennedy to kneel down and offer thanks to God on the fifty-yard line at the end of a football game, joined by some student players and visible to the spectators, would have been violating the establishment clause. To the school district, all the case law prohibiting prayer and Bible study in the public school classrooms as representing “an establishment of religion” (that is, having government-sanctioned/supported religious activity) indicated that Coach Kennedy’s fifty-yard-line prayers were constitutionally impermissible.  But from Coach Kennedy’s point of view, by denying him this prayer, the school district was violating his right to the free exercise of religion as well as his freedom of speech.  By a vote of 6 to 3, along political party lines, the Supreme Court has sided with Coach Kennedy.

Neil Gorsuch, Trump’s first appointee to the Court, wrote the majority opinion.  Gorsuch found that the school district, by prohibiting the coach’s post-game fifty-yard-line prayers, was singling him out expressly for his religious practice even though he was not acting with school authority to engage in any school-sanctioned religious activity.  Gorsuch also noted that, as a matter of freedom of speech, Kennedy was acting as a private citizen rather than communicating anything that could be seen as a government-sanctioned message. He acknowledged that some people might not like to see Kennedy engaging in this prayer.  But: “‘learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’ ”  He further denied that any coercion of students was taking place, even though here was anecdotal evidence that some students felt they had to join their coach in prayer to stay in his good graces.

Interestingly, Justice Brett Kavanaugh, though he went along with the ruling, did not sign on to the section where Gorsuch denied coercion.  He did not write a separate concurring opinion explaining himself on this point.

Justice Sonia Soomayor dissented.  “While the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced
by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.”  She was joined by the other two Democratic appointees, Elena Kagan and Stephen Breyer.

It should be noted that what made this case justiciable under the First (and Fourteenth) Amendment was the fact that a public school district is an agency of government.  For the establishment clause, the Court had to consider whether allowing the prayer represented government sanctioning of religion, and for free exercise, the question was whether the school district’s disciplinary action against the coach was permissible.  On that latter point, it needs to be noted that for both teachers and students in public educational institutions, when they are on school grounds and subject to school authority, First Amendment rights are neither absolute nor nonexistent, but rather, have to be carved out case by case.  (This is also applicable to employees of other kinds of government agencies; remember Rankin v. McPherson, the case of a clerical employee of a constable’s office who was fired for expressing the wish for the president to be assassinated while she was on the job–a case that she won, 5-4.)

Remember that just a week earlier, the Court ruled 6-3 that the state of Maine was denying families their free exercise rights by excluding religious schools from its program of providing tuition to private schools for students whose own towns did not have public schools.  In that case, as well, the state meant to obey the establishment clause and was sued for violating the free exercise clause.

Coach Kennedy, predictably, is thanking God for this victory.

Full text of the Bremerton decision

Article in Politico, June 27, 2022

Full text of the Maine decision

And Then There’s Clarence Thomas

In my preceding post here on OpenLab, I summarized Chief Justice John Roberts’ concurring opinion in the decision that overturned Roe v. Wade.  Roberts felt that the decision was too broad and should have been narrower.  Well, his colleague Clarence Thomas appears to think the opposite:  he would have liked it to be even broader.  Or, at least, he would like to see some future decisions whose sweep would be broader.

Since the Fourteenth Amendment was ratified in 1868, there have been two ways of reading the “due process” clause (i.e., “nor shall any state deprive any person of life, liberty, or property without due process of the law”).  There’s procedural due process, and there’s substantive due process.  Basically, procedural due process involves crime and punishment, the point being that nobody should be labeled a criminal and punished for crime without due process of law.  (At the time, southern state governments had been using vagrancy laws to keep slavery alive by imprisoning impoverished African Americans and contracting them out for labor.)  The term substantive due process interprets the Fourteenth Amendment as going farther, as empowering the federal courts to define particular types of liberty and requiring states to guarantee same in their laws.

In the early twentieth century, substantive due process allowed the federal courts to stop states from passing laws restricting wages and hours of employment, on the grounds that such laws deprived business owners of their liberty of contract and their right to use their property to maximum gain.  (The key case for that was Lochner v. New York in 1905.)  But in more recent times, the term has applied to the right to privacy cases–and the gay marriage ruling.

Clarence Thomas considers substantive due process to be “an oxymoron that lacks any basis in the Constitution.”  He writes, in his concurring opinion to the ruling overturning Roe v. Wade, “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”  Therefore, he opines, the Court in future cases should reconsider its application of this doctrine to a number of cases, including:

  • Griswold v. Connecticut, the 1965 decision in which the Court articulated the “right to privacy” doctrine as part of the Fourteenth Amendment’s protections, striking down a state ban on contraceptive use;
  • Lawrence v. Texas, the 2003 case where the Court ruled states’ antisodomy laws unconstitutional; and
  • Obergefell v. Hodges, the 2015 gay marriage decision.

Some commentators have noted an irony:  Thomas could have included Loving v. Virginia in that list.  Loving v. Virginia is the unanimous 1967 ruling in which the Court said that state laws interfering with Blacks and whites getting married to each other violated the Fourteenth Amendment.  (Thomas, of course, is a Black man married to a white woman.)

It should be remembered that Thomas is just one justice in nine, and he was the only justice who expressed this view in the concurring opinions of this ruling.  Thus, the fact that he wrote this doesn’t mean that any of it is going to happen.  But we definitely have a Court that is taking jurisprudence into a more conservative direction, so it is to be expected that there will be some more controversial rulings still to come.

Here again, is the ruling.  Justice Thomas’s concurring opinion starts on page 117.

The Abortion Decision: What Chief Justice Roberts Would Have Done Differently

From the leak of the decision of Dobbs v. Jackson Women’s Health Organization in early May, it was known that the Supreme Court (assuming that nothing changed) was going to overturn Roe v. Wade and Planned Parenthood v. Casey (1992).  It was also known that Justice Samuel Alito, author of the decision, had Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on board with him.  It was also a safe assumption that Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, all Democratic appointees, would be in dissent.  It was not clear, however, where Chief Justice Roberts stood.  Now that the final ruling has been issued, now we know.

The Mississippi law was nowhere near as stringent as laws passed in other states.  The Mississippi law prohibited abortion after 15 weeks.  That’s shorter than the time that the existing precedents of Roe and Casey required states to allow, but it’s over three months, so it’s a point in time when the pregnant woman is going to know she’s pregnant and have time to decide.

Chief Justice Roberts, if he had had his way, would have allowed Mississippi’s law to stand, and in so doing would have ruled that states don’t necessarily have to allow abortion up to the point of viability (the point where the fetus has a chance of surviving outside of the mother’s womb).  He would not have gone any farther than that in the ruling.  He makes that clear in the concurring opinion he wrote (an opinion agreeing with the resolution of the present case but disagreeing with some of the reasoning and, in this instance, with the new precedent that it sets).

He writes:

I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. . . .

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.

The Court’s decision certainly has a lot of people upset.  Some question whether it’s going to be a step toward reversing other decisions, like those affirming the right to same-sex marriage and contraceptive use.  Many also believe it will lead to deaths by coat-hanger abortions, as expressed by Representative Alexandria Ocasio-Cortez.  The Democrats are making the most of it in their campaigns for Congress and state legislatures in the November elections.

The ruling about the carrying of concealed handguns, in  case from New York, also has many upset and fearful, especially New Yorkers.  After earlier precedents in 2008 and 2010 established, respectively, that the Second Amendment applies to each individual (not just to state-run militias) and that the Second Amendment can be enforced on the states by the federal courts, the Court ruled that New York’s restrictions on who can get a permit to carry a concealed gun violate the Second Amendment.

Full text of the abortion decision, including the concurring and dissenting opinions  (Justice Roberts’ concurring opinion starts on page 136.)

Full text of the gun decision



Gun Control: What Biden Is Up Against

Thursday night, June 2, President Joe Biden delivered a televised address to the American public speaking about gun violence and asking for support for some new federal gun laws.  His proposals include a ban on military-style assault weapons (which was in effect before, passed when Biden was in the Senate), tougher background check requirements for purchasers of firearms, “red flag” laws that would make it easier to identify potential killers, a repeal of certain types of immunity to lawsuits for gun manufacturers, and more funding for mental health services for the youth.

Biden is not likely to get any restrictions at all on firearm ownership passed by Congress.  Even if all of the Democrats agree on a law, it needs to be remembered that it takes 60 votes to pass most legislation in the Senate, which would mean all 50 Democrats plus 10 Republicans.  This is not likely to happen.  Although a majority of the public nationwide favor some gun ownership restrictions, Republicans in the House or Senate tend to have constituencies that are uncompromisingly against gun control, and they’re the people who will vote for or against candidates according to their positions on guns.

What’s behind this is that members of the National Rifle Association (NRA) and others of similar persuasion do not believe that gun control is about preventing mass shootings and other gun violence.  Rather, they regard any kind of gun control at all as part of a larger plan to totally ban private ownership of guns.  In fact, many of them will go so far as to say that the real reason why liberals favor gun control is that they want to disarm the populace in order to control them, to establish a socialistic dictatorship, because an unarmed populace is easier to enslave.

Closely related is the interpretation of the Second Amendment.  There is already Supreme Court precedent for understanding the Second Amendment as applying to the individual citizen’s right to bear arms; the NRA crowd interprets it as guaranteeing the individual’s right, not just to own some kind of firearm, but to own any and every kind of firearm, including assault weapons, with no restrictions whatsoever.

With only 50 Democrats in the Senate, the president’s proposals don’t have a realistic chance of passing, no matter how many Americans think they should.

Biden’s speech:  President Biden Address to Nation on Mass Shootings |

Article in Politico, June 2, 2022:  Biden demands action on guns: ‘How much more carnage are we willing to accept?’ – POLITICO