The following text is an update for American Crusade: How the Supreme Court Is Weaponizing Religious Freedom. Readers who have not first read the book will be missing important context, especially regarding the three legal lines we draw to determine questions of religion and law and the deliberate assault on those lines: the Crusade (defined in chapter 3). We recommend reading the update after you’ve finished the book.
This text is a work in progress. The author will continue to revise it until it’s finalized in print form in an updated edition of the book. If you wish to make a comment on the text, please contact Andrew using the contact form, but note that his Patrons have access to direct messaging.
American Crusade Sept. 2022 update
An update for American Crusade was always going to be necessary. The crusade to weaponize religious freedom is not some historical fight, but an ongoing war that’s been accelerating. In the book, I explained that “as this book goes to press, the flow of religious freedom cases to the court is increasing. The court once decided these cases every few years. Then, in the decade following the Deus vult, they increased to deciding one a term. Now, they’re deciding three, four, or perhaps as many as seven or eight religious freedom cases a term.” That surging wave broke over America the month after the book text was finalized.
The six-justice conservative supermajority on the Supreme Court delivered blow after blow to the wall of separation between church and state and rewrote the three lines that we use to answer questions of religion and law (described in chapter 3). It erased the lines and redrew them to privilege conservative Christians, effectively consummating the Crusade in the most consequential Supreme Court term of our lifetimes. Perhaps ever.
Though this book explores their push to retool religious freedom, the conservative justices were completely unrestrained. In the term ending in June 2022, they:
- abolished reproductive freedom (Dobbs v. Jackson Women’s Health Organization);
- forced state governments to tax citizens to fund religious indoctrination (Carson v. Makin);
- allowed public school officials to abuse their power and impose their personal religion on children required by law to attend school (Kennedy v. Bremerton School District);
- ruled that federal immigration law doesn’t require the government to give detainees a bond hearing before locking them up for months and even years and that such abuses can’t be litigated in class actions (Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez);
- neutered accountability when police fail to give Miranda warnings (“you have the right to remain silent”) (Vega v. Tekoh);
- eroded tribal sovereignty (Oklahoma v. Castro-Huerta);
- gutted what little was left of gun regulations (New York State Rifle & Pistol Association, Inc. v. Bruen), and;
- suffocated our ability to fight the climate crisis (West Virginia v. EPA).
That’s not all. This term the court also allowed mob rule over the womb in Texas (regarding SB 8, a split 5–4 and 6–3 opinion);1 halted OSHA’s workplace vaccine mandate because Covid affects more than the workplace (an unsigned 6–3 opinion);2 used the shadow docket to strike down the eviction moratorium as a Covid relief measure (an unsigned 6–3 opinion);3 reinstated racially gerrymandered electoral maps in Alabama and Louisiana for the 2022 election—maps that lower courts had struck down as it considers a case that will almost certainly allow racial gerrymandering under the guise of racial equality (6–3 and after permitting partisan gerrymandering in 2019);4 and accepted a case that could effectively end the American experiment with democracy, Moore v. Harper. This last case, if wrongly decided, could allow state legislatures to overturn elections, which, incidentally, was the goal of January 6. It’s the January 6 insurrection dressed up as a legal case. Ostensibly, it centers on the Independent State Legislature theory or doctrine, which is neither, but a nightmare born on the fringe of conservative legal thought that would help that fringe seize power. One of the first times that fringe idea was proposed was in Bush v. Gore in 2000, by Rehnquist, Thomas, and Scalia with no citation whatsoever. The other justices rejected it, opting to decide the election themselves over a host of ethical and nepotism concerns. CBS News reported on the day of the decision:
The wife of US Supreme Court Justice Clarence Thomas has been gathering résumés for potential Bush administration job openings. . . . Two sons of Justice Antonin Scalia, meanwhile, work for law firms that have been representing the Bush campaign in election cases — including the firm that argued the merits of Florida’s ballot recount in front of the high court.”5
The court is far more conservative now and three of the people on the legal team making that argument—John Roberts, Brett Kavanaugh, and Amy Barrett—are now on the high court.
Conservative justices haven’t had such a powerful grip on the high court in a century. They have a supermajority, lifetime appointments, and power that this Congress is unwilling to check. And goddammit they’re gonna wield that power (see pages 26–27 and 163 in American Crusade; hereafter all references, unless noted, refer to this book). They were not magnanimous in victory, but as spiteful and bellicose as ever. Neil Gorsuch refused to wear a mask in open court, which forced Justice Sotomayor to absent herself from the courtroom and telework for oral argument.6 Alito took a gloating victory lap in Rome, mocking foreign leaders, bragging about abolishing reproductive freedom, and essentially confessing to the Crusade I labored to explain.7 More on that in a minute.
The term was so norm-, precedent-, and earth-shattering, that it’s difficult to process all that happened. The court seems to be taking a page out of the Steve Bannon playbook: “flood the zone with shit.”8 The ultra-conservative supermajority is drunk on power.
Again, it’s no coincidence that this radical, rogue term came after the conservative justices systematically removed the checks and severed the restraints that were once in place. They gutted the Voting Rights Act,9 rubber-stamped gerrymandering, and flooded political campaigns with corporate money (in Citizens United and in a May 2022 case brought by Ted Cruz10). They did all that first, and only then they moved on to things like abolishing the right to an abortion. They made it significantly harder for Americans to hold them accountable by reclaiming that right at the ballot box
A liberal majority in Congress, unencumbered by the filibuster, could undo much of the harm from the 2021–22 term with federal legislation. Expand and protect voting rights, give the EPA power to fight climate change and OSHA power to fight Covid—even reproductive freedom could be protected with the Women’s Health Protection Act. The immediate harm could be reversed. Two problems with this approach are (1) that later Congresses could undo any legislation, and (2) the court itself. Without expanding and rebalancing the packed court, it will almost certainly undo any of these legislative solutions. In fact, using the case pipeline below—a federal district court in Texas to the 5th Circuit to the Supreme Court, just like SB 8—it’s unlikely that any congressional fix would last. This court needs a fix first.
A third, more serious problem is that several cases the court decided are less amenable to legislative fixes because the court rewrote the Constitution itself and the Constitution trumps federal legislation. It’s the “supreme Law of the Land.”11 That’s why the Crusaders focused on reshaping the First Amendment to that supreme law into a weapon. Earlier, I explained that the Crusade is reshaping our coequal human rights into a hierarchy of rights with property, gun rights, and religious freedom atop the pyramid (see pages 10–12 and 28). In the majority opinion in the gun case, which the other five ultra-conservatives joined, Justice Thomas quoted a 2010 opinion (the Deus vult year) and wrote, “the constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”12.)) The very next day, those same six Supreme Court justices abolished the constitutional right to an abortion, not relegating it to “a second-class right,” but simply abolishing the right altogether. Before these six justices, some rights are more important than others.
The court also decided the cases I mentioned several times throughout the book: the Maine neo-voucher case, brought by two Crusaders, the Institute for Justice and First Liberty Institute (Carson v. Makin, see page 247), and the case of the public school football coach who pressured students to join his public prayers at the 50-yard line after games (Kennedy v. Bremerton School District, see pages 55, 124, 177, 197, and 247–48). Both were remarkable in how far they pushed the Crusade. “The outcomes are predictable. If the facts don’t fit the Crusade, the court will alter reality, like the Town of Greece prayers, gay wedding cake, and Missouri ministry cases,” I wrote, in what turned out to be an understatement.
The predictability of these outcomes, the dishonesty of the opinions, and the brazen lawlessness of the conservative justices began to rouse people. People began to wake up to the dangers of living in a “Christian nation” where the law privileges conservative, white, heteronormative Christian men and treats everyone else like second-class citizens. So much has changed—been taken from us by the Supreme Court—that journalists began to question the court more than ever before. They began digging and investigating and questioning the myths about our court. People began to “unshackle their minds from the belief that the Supreme Court is an impartial arbiter of truth and justice,” as I said we needed to do in the introduction of this book.
So before we turn to the Crusade cases, let’s see what else we’ve learned about the Supreme Court justices since the first edition of the book went to press.
Crusaders in the litigating network prayed regularly with Crusaders on the court. To influence the justices. To embolden them to decide cases in line with religious law, rather than constitutional law. This “spiritual conditioning” was methodical, careful, and found the conservative justices willing participants.
Rolling Stone broke the story just days after the term ended: “Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.”13 The report focused on the Supreme Court ministry of Liberty Counsel, the Crusader group that represented Kim Davis, several of the churches challenging public health measures during the pandemic, and the Christian Nationalist organization that wanted to fly the Christian flag over Boston. (Camp Constitution, the flag-flying group, is a Christian Nationalist organization—see page 246. The founder held leadership positions in the John Birch Society for twenty-six years and brought that anti-government, Christian nationalism conspiracy fever dream to his camp for children. “We have classes on the Deep State, exposing the New World Order, getting out of the United Nations, the global warming hoax, and I would say few camp attendees accept the official story of 9/11,” he explained about the camp.14)
Faith & Liberty is one of several ministries on Second Street NE, the block just east of behind the court itself, a block some call “ministry row.” To mark this particular ministry out from its brethren, an ostentatious stone Ten Commandments monument sits in front of its headquarters. The monument is deliberately angled so that the justices and clerks arriving at the court see the religious law first thing.15 The stone rendering does not quote any of the four biblical versions of the Ten Commandments (yes, there are four, see my book The Founding Myth, chapter 13), but is a mash-up and heavily edited translation that omits some of the clearly evil and immoral aspects of the laws, like slavery and punishing innocent children to the third and fourth generation for exercising their religious freedom, the same freedom our Constitution guarantees. Back in 2005, after the oral argument in the dual Ten Commandments cases (see pages 25–26), Mat Staver, the founder of Liberty Counsel, spoke on the steps of the Supreme Court alongside Peggy Nienaber, one of the longtime employees and vice president of the ministry.16 In an interview with Staver, Nienaber, in the Faith & Liberty building, pointed to the two conference room windows of the Supreme Court where the justices hold their Friday conferences. Nienaber told Staver, “When you’re sitting in that conference room, you cannot miss those Ten Commandments.”17
The bombshell revelations that this ministry infiltrated the court focus on Nienaber and Rev. Rob Schenck, “who led the group’s predecessor organization, Faith and Action, for years before leaving in 2018.”18 The story featured a photo of the two praying in front of the court three months after the justices accepted the Mojave Desert cross case—the Deus vult case (see pages 26–27 and 177).19 Faith and Action became Faith & Liberty in 2018 when it was absorbed by Staver’s Liberty Counsel, around the time the court decided the gay wedding cake case (see chapter 5).
Schenck and Nienaber “hosted prayer sessions with conservative justices in their chambers.”20 Schenk, who now regrets his activism, “forged ministry relationships with Samuel Alito, Clarence Thomas, and the late Antonin Scalia, saying he would pray with them inside the high court. Nienaber was Schenk’s close associate in that era, and continued with the ministry after it came under the umbrella of Liberty Counsel.”21
Staver denies all this, but Nienaber was quite clear. She brags about it on tape just in front of the Supreme Court building itself:
Nienaber: “It’s not really a church, we’re a ministry center for the justices.”
Interviewer: “Wow. What does that mean? You pray with the justices?”
Nienaber: “Yes. We’re the only people that do that.”
. . .
Interviewer: “And you actually pray with the Supreme Court justices?”
Nienaber: “I do!”
Interviewer: “That’s amazing. And the Supreme Court justices will pray with you?” . . .
Nienaber: “They will pray with us, those that like us to pray with them.”
. . .
Interviewer: “Do you go to the Supreme Court justices’ houses too?
Nienaber: “No . . . we actually go in there.”22
In an earlier selfie video she shot in front of the court, Nienaber said, “inside of there” and pointed to the court, “is one of our mission fields. And yes, we go in and pray with the justices.”23
Nienaber said the livestream interview was all “off the record” and later tried to deny what she said when she thought she was speaking privately. Her and Staver’s denials ring hollow given the public chats he’s had with Nienaber, which reiterate her hot mic moments, only with a bit more restraint. Immediately after she bragged about the visibility of the Decalogue from the court’s windows, Staver said, “There’s a lot of things that Faith & Liberty does—and that you do —that obviously we can’t put in an email, can’t put in a newsletter, can’t put in a press release, because it’s private relationships that are spiritually transformative.”24 He also claimed that Nienaber has “been very much a part of . . . the nominations and the deliberations of the next justices of the United States Supreme Court” and even posted photos of Nienaber with Brett Kavanaugh at Trump’s White House swearing-in ceremony for Kavanaugh.25 Rolling Stone noted that Nienaber also posed for photos with Thomas, calling him a “friend” and “praising him for ‘passing by our ministry center to attend church and always taking time to say hello.’”26
For years, these Crusaders had been using prayer to penetrate an institution that is meant to be impartial. They targeted and prayed with Alito, Thomas, and Scalia. To some, this may not seem like a big deal. But having god on one’s side can make all the difference and is, as this book has shown, a license for unethical and immoral acts, including discrimination. “The goal was” to have narrow, conservative Christian views on abortion and religious freedom work their way into opinions and decisions, “to create an ecosystem of support for conservative justices, as a way of making them more forthright in their views.”27 These justices already shared those views—they had been selected by Leonard Leo for their ideological purity (see pages 6–8, 30, and 32–33)—they just needed encouragement. They needed to know their god was on their side.
The ministry would rehearse lines and scenarios, acting with subtlety that allowed, at least in theory, the justices to maintain their facade of impartiality. “Eventually, Justices Alito, Scalia, and Thomas would embrace Schenck, he says, and pray with him in various corners of the high court’s grounds—including, occasionally, in their chambers.”28
Schenk told Charisma magazine in 2001 that Scalia asked for his prayers immediately following Bush v. Gore: “Just 24 hours after the historic Supreme Court ruling in the Bush vs. Gore election decision, Schenck attended a private reception hosted by Justice Antonio Scalia. Schenck reports that during a one-on-one conversation, Scalia asked for his prayers and the prayers of the people.”29 Staver himself helped litigate Bush v. Gore.30
[Note from Andrew: Additional text on Supreme Court Historical Society coming soon. Check back when you hear about it in the news. And you will hear about it.]
We’ve also learned more about Clarence Thomas’s wife, Ginni Thomas, and her work for the Crusade and Crusaders (some of this was included in footnote 27 of the American Crusade introduction, on page 261). In April 2020, when Ginni Thomas was serving as one of eight members on the Council for National Policy Action board—described by Jane Mayer as “a dark-money wing of the conservative pressure group the Council for National Policy” (see footnote 27)—it was chaired by Kelly Shackelford, the president and CEO of First Liberty Institute. First Liberty is a Crusader group involved in several major cases before the court, including the Bladensburg cross, the football coach pressuring students to pray, and the Maine neo-voucher cases. “In addition to these cases, First Liberty has filed lawsuits that challenge Covid-19 restrictions on religious grounds—an issue that has come before the Court—and Ginni Thomas and Shackelford have served together on the steering committee of the Save Our Country Coalition, which has called Covid-19 health mandates ‘unconstitutional power grabs.’”31 He’s litigating cases before her husband and they sit on the same board working to undermine public health measures in the name of religious freedom.
Ginni Thomas’s ties to Crusaders unsurprisingly bled into her work to overturn the 2020 presidential election. We already knew that the legal architect of the attempted coup, John Eastman, was a former Thomas clerk and in email contact with the Thomas clerk listserv. As was Ginni (see page 7). And we’ve since learned that Ginni was inviting Eastman to deliver confidential briefings to “a groups of grassroots state leaders,” a group she helped organize called “Frontliners”, in December 2020, less than a month before the insurrection.32
Ginni was also contacting state legislators in swing states like Wisconsin and Arizona,33 and, according to text messages with Trump White House officials, discussing all of this with her husband. Within a week of the election, Ginni Thomas emailed her and Clarence’s friend in the Arizona Legislature, Shawnna Bolick, who served on the House Elections Committee. Bolick is married to Clint Bolick, who was an aide to Clarence in the Reagan White House, and Clarence is godfather to their children. Clint Bolick went on to found the Institute for Justice with Koch money, which would win the Maine case discussed below. Clint is now an Arizona Supreme Court justice (see page 205). Ginni wrote to Shawnna and asked her to “ensure that a clean slate of Electors is chosen,” instead of the democratically chosen Electoral College electors.34 The ability to choose electors is “yours and yours alone,” Ginni explained, telling Shawnna that she had the “power to fight back against fraud.” Two weeks later, some three weeks after Trump had lost the election, she despaired of Trump retaining power. Ginni and Trump’s chief of staff Mark Meadows were texting back and forth.35 Meadows framed overturning the election in Christian terms: “This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues.” The King of Kings is Jesus, though invoking divine monarchy while exhorting someone to overturn a democratic election is no small thing. The “weary” line is a quote from Galatians 6:9.
Ginni Thomas replied, “Thank you!! Needed that! This plus a conversation with my best friend just now. . . . I will try to keep holding on. America is worth it!” She was galvanized to continue the fight to overturn the election after “a conversation with my best friend just now.” That almost certainly means Clarence. The Thomases regularly refer to each other in these terms—Clarence even did so at a Federalist Society event back in 1999.36 After weeks of working to overturn the election and in the middle of texting with Trump’s chief of staff about continuing that attempt to subvert democracy, she and her Supreme Court justice husband discussed the attempts and she vowed to continue. She even attended Trump’s rally at the Ellipse on January 6, 2021, at which he exhorted his followers to march on the Capitol. She claims to have returned home before Trump took the stage.37 The day ended in violence, bloodshed, and a failed attempt to overturn the election.
Clarence Thomas and Leonard Leo appeared on stage together at a Federalist Society event in Texas during the last two days of the first stage of Brett Kavanaugh’s Senate confirmation hearings (before the credible sexual assault allegations against him were public). Thomas jokingly referred to Leo as “the No. 3 most powerful person in the world.” The two laughed and Leo responded, “God help us.”38 The joke isn’t far off. In August 2022, news broke that Leo’s latest conservative venture received what might be the largest donation to a political nonprofit in history: $1.6 billion.39 That’s over a billion dollars more than Leo’s groups spent on packing the court from 2014 to 2020.40 We learned a bit more about Amy Coney Barrett, too. We knew that she was not just in the People for Praise religious cult, but served as a “handmaid” as recently as 2010 and had lived with the founder of People for Praise while she was in law school.41 Barrett’s soon-to-be husband lived in the house as well, according to reports. We learned more about what it was like to live in that house from a sworn affidavit by a former member of the group. She described the household in harrowing detail, including that the sect’s leader “controlled my dating relationships, deciding who and when I should date,” details which The Guardian broke less than three weeks before Barrett joined the majority opinion that abolished reproductive freedom.42 Nobody seemed to notice.
And if all those connections are too murky or smack of red-string conspiracy memes, shortly after the term ended, Justice Alito openly proclaimed the Crusade. In Rome, no less.
Alito delivered remarks to the Religious Liberty Summit hosted in July 2022 by the University of Notre Dame Law School’s Religious Liberty Initiative. The speech, which came less than a month after Alito’s opinion abolishing reproductive freedom, was not announced in the Initiative’s program schedule, and the video didn’t surface until a week later.43 The Initiative itself was founded four months before Amy Coney Barrett was shotgunned onto the court.44 It’s run by a former Becket Fund (see pages 140–41) attorney, Stephanie Barclay, who also clerked for Gorsuch during this catastrophic term, a decade after she was out of law school. At Becket, Barclay worked on the Philadelphia foster care case (page 232)45 and spent a lot of time selling the Little Sisters of the Poor to the media (page 152). With Barclay as lead, the Initiative submitted briefs to the court in the Covid case out of New York (page 163). It also briefed a case the Supreme Court didn’t accept in which religious employers want to discriminate against any and all employees by labeling them ministers (page 243), the Christian flag case out of Boston (see above), the Dobbs case (see below), and the case about the coach abusing his power (see below). Gorsuch sided with the Initiative his clerk runs each time (though she was not listed on those later cases). Barclay, who the Crusaders appear to be grooming as the next Barrett, introduced Alito in Rome.
Alito’s speech even struck the sober and measured Supreme Court journalist Linda Greenhouse as militant. She noted Alito’s “crusade” and that “his religion on the march.”46
“There’s growing hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors,” warned Alito.47 Alito wasn’t expressing a concern for religious liberty or even religion, but for the waning dominance of his conservative religious beliefs. He was upset that the deference and privilege he is accustomed to is waning: Dominant Group Status Threat (see pages 13–14). That’s why he’s angry and bitter—that’s why he mentioned “religious liberty” or “freedom” some fifty times.
He said, “if we are going to win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law.”48 Pair this speech with the campaign exposed in American Crusade and it’s effectively a confession. He’s admitting that they need the weaponized version of religious freedom that is the goal of the Crusade. He employed the doublespeak that should be familiar by now, preaching equality while deciding cases in ways that privilege conservative, white Christians: “Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power,” he said.49
The speech was Alito’s chance to bask in the glory of victory. Alito joked and the sympathetic audience lapped it up. He lingered on the honor he felt in writing the Dobbs opinion and mocked the “whole string of foreign leaders who felt perfectly fine commenting on” the opinion, focusing on “former prime minister Boris Johnson,” and noting, to much laughter and applause, “he paid the price.”50 Alito also targeted Prince Harry for ridicule and sarcasm.
The crusading justice concluded with a telling biblical allusion: “Our hearts are restless until we rest in God. And, therefore, the champions of religious liberty who ‘go out as wise as serpents and as harmless as doves’ can expect to find hearts that are open to their message.”51 Alito quoted Matthew 10, known as the “Little Commission,” to distinguish it from the Great Commission (see page 187). In both, Jesus sends out his apostles to convert others. And in this chapter, Jesus does so with a fervent militancy, discussing how family members will turn against one another and saying, “Do not suppose that I have come to bring peace to the earth. I did not come to bring peace, but a sword.”52 Towns that reject his apostles will face a fate worse than Sodom and Gomorrah, he warns.53
This speech wasn’t a Deus vult, but a zealous Crusader claiming victory on the field of battle while promising more.
As if what they’d just done were not enough. Let’s turn to the three big opinions the court handed down to further the Crusade. Up first, the court imposed a narrow and deeply conservative Christianity on the nation when it abolished reproductive freedom.
Abolishing Reproductive Freedom (Dobbs v. Jackson Women’s Health Organization)
“How is your interest,” Justice Sonia Sotomayor asked the lawyer for the state of Mississippi, “anything but a religious view?” When the Supreme Court heard oral argument in the Dobbs case, the case that would overturn Roe v. Wade, and abolish reproductive freedom in America, Justice Sotomayor cut through all the bullshit and euphemisms. She continued, “When you say [abortion] is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”54
The attorney struggled to answer Sotomayor’s question because she’s correct. Laws banning and restricting abortion have always been about imposing a narrow, conservative Christianity on everyone else.
The “state’s interest” Sotomayor referred to was, prior to this decision, an important variable in the legal balancing test the court had created to determine whether a burden on the right to access an abortion was constitutional. Sotomayor was saying that the state interest Mississippi had claimed was a religious tenet, which would be impermissible for a secular state. It would be like the state banning oysters because the Book of Leviticus orders readers not to eat shellfish. The state would be imposing one narrow religious view on us all.
Sotomayor is correct. But in courts, the abortion debate has been consumed by legal and linguistic gymnastics since the politicians and religious leaders who dubbed themselves the Moral Majority chose abortion as the wedge issue to divide Americans several decades ago, when they could no longer publicly rely on racism and segregation (page 219). Reproductive freedom is, to a much larger extent than we’ve been willing to discuss, religious freedom. Reproductive freedom requires Line #3 (defined on pages 42–44).
This truth is shouted whenever legislators pass abortion bans. They lay on the Christian rhetoric thickly. The sponsor of the Mississippi law that was challenged in this very case justified the measure in part by declaring that “children are a gift from God.”55 When Alabama governor Kay Ivey signed a similar ban, she called it “a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”56 The civil law was a testament to a religious belief. When Oklahoma enacted its ban, the president pro tempore of the state Senate enthused, “all life is precious and a gift from God,” while other legislators said things like, “God values life and so do I,” and “we thank the Lord for the team of people that worked together to help make this happen, and the multitudes who have prayed for years about this. We also thank the Lord for answered prayer. To God be the glory!”57
In a normal world before a court of reasonable jurists, Line #3 would have a role to play in such a situation. When legislators wielding secular power impose a Christian law on us all in the name of their Christian god, that law must fall. The Lemon test, that unavoidable piece of jargon that’s also part of the bedrock of religious freedom law, requires that laws have a secular purpose (see page 183). But even if this court of ideologues cared about this Line, they obliterated the Lemon test in the coach case we’ll turn to shortly.
When it’s time to defend the bans in court, attorneys arguing the cases and judges rolling back our freedoms turn to euphemism and lies because of Line #3. Alito did so in this very case.
His opinion in the case began with religion: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.”58 And it ended there too, as Alito himself pointed out: “We end this opinion where we began. Abortion presents a profound moral question.”59 There may be a moral dimension to these questions, but a narrow conservative Christianity was the sole answer for Alito, the Crusaders, and the legislators passing these laws.
In the opinion, Alito also tried to argue that “abortion is fundamentally different” from freedoms such as “intimate sexual relations, contraception, and marriage.”60 Why? Because abortion “destroys what [Roe and Casey, previous decisions upholding the right] called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”61 In other words, like the legislators who passed the ban because “children are a gift from God,” Alito premised his opinion on his conservative religious belief.
This admission comes as Alito hollowly tries to address the sweeping implications of abolishing a freedom and what that means for our other freedoms. I warned that the Crusaders are “coming for contraception” and marriage equality and so much more. The end of Roe is just the beginning. Three justices on the Supreme Court issued the same warning in their dissent of this case. Sotomayor, Breyer, and Kagan wrote, “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”62 This is remarkable for what it calls out. They label the other justices as hypocrites or liars.
Thomas, however, cannot be accused of dishonesty. He wrote openly of this goal in his concurrence, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to the decisions that recognized basic human rights like contraception, same-sex intimate relationships, and marriage equality.63 Thomas added that the court should “overrul[e] these demonstrably erroneous decisions.”64 He did not include Loving v. Virginia in the list of cases to be targeted, even though it sits soundly in that family of precedents. But Thomas and his wife personally benefit from that precedent, which struck down laws banning interracial marriage.
Some people refuse to believe that the Crusaders will come after these other rights, but they’re ignoring clear warnings. They simply don’t believe it could happen. Even though it happened with reproductive freedom and even though Alito’s opinion is already being leveraged against other rights. This isn’t skepticism so much as people being mired and entrenched in their old thinking about the court as an arbiter of law and justice, rather than a political body captured by the extreme wing of a party embracing authoritarianism. The “partisan hacks,” to borrow from Barrett, that were packed on to the court are drunk with their power and they’re not going to exercise restraint anytime soon. There’s no reason to.
The justices don’t even need to do all that much to roll back these other rights. By the time the ultra-conservative supermajority officially overruled Roe, abortions were effectively outlawed in Texas because of SB 8. That law instituted mob rule over the womb in Texas and the Supreme Court let it stand simply by doing nothing (see page 163). We can expect the Crusaders to run the same playbook with contraception and marriage equality and the other rights.
They’ll use the same Fifth Circuit pipeline. The reason all the abortion attacks feature Mississippi and Texas is not simply a reflection of their conservative state politics, but that they’re also in a federal circuit that is more extreme than the ultra-conservative bloc on the Supreme Court. The Fifth Circuit handles federal cases out of Texas, Mississippi, and Louisiana. The lower courts are full of deeply conservative activist judges like Reed O’Connor. O’Connor is “active in the conservative Federalist Society” and “a former aide to US Sen. John Cornyn, R-Texas.”65 Judge Matthew J. Kacsmaryk worked at a Crusader group, First Liberty Institute, just before his nomination to the federal bench.
The Fifth Circuit itself would then consider any appeal and it is the most conservative and Trumpy appeals court in the country. Any Crusader filing a case there is almost guaranteed the result they want eventually. Usually, federal circuit courts decide cases with three-judge panels, but parties can ask all the judges on the court to review, at their discretion, a panel decision. Republican presidents appointed 12 of the 17 judges on the Fifth Circuit and Trump appointed 6 of those. Some of the judges are former Crusaders. Not just Kacsmaryk at the district court level, but on the Fifth Circuit itself. Judge Kyle Duncan worked at the Becket Fund and was lead counsel in the Hobby Lobby cases (see chapter 10).66 He’s a Crusader, a true believer. When he got on the bench, he offered a hateful opinion deadnaming transgender folks.67 Most of Trump’s nominees to that court were Federalist Society members.68 Judge Andrew Oldham clerked for Justice Alito, is a former sidekick of Greg Abbott’s, and seems to believe everything in his career is the will of God or “the place God had for me,” or “God opening a door.”69 There are others, like James Ho and Don Willett. It’s easy to imagine the next Kim Davis wannabe partnering with a Crusader to start up the Texas case that will undo marriage equality in this fertile ground.
If this forum-shopping strategy is giving you déjà vu, it’s because I described (see pages 234–35) how it was used after the Philadelphia foster care lawsuit. Steven Hotze—the guy who thinks “our government must enforce biblical law,” thinks Greg Abbott is too liberal and told him to “shoot to kill” Black Lives Matter protesters—used this pipeline to drive the religious freedom train through the gate Gorsuch left open in the Title VII opinion that protected LGBTQ people from discrimination (pages 245–46). As predicted, Hotze appealed to the Fifth Circuit.
So even if it were true that the conservative supermajority on the Supreme Court wasn’t gunning for these other rights and Thomas’s concurrence weren’t another clear Deus vult, the Crusaders don’t really need the Supreme Court to do anything. They can repeal basic rights for millions of people using this conservative pipeline and dare the conservative justices on the Supreme Court to overturn the Fifth Circuit. That’s how the Texas SB 8 case played out: the Fifth Circuit conservatives went to the extreme and the Supreme Court conservatives did nothing to stop them.
Taxpayer-Funded Indoctrination and Discrimination (Carson v. Makin)
The court abolished reproductive freedom on a Friday. Three days earlier, on Tuesday, the court destroyed one of the nation’s first religious freedoms: our right to be free from the compelled financial support of religion, specifically, conservative Christian schools.
Public education is a right enshrined in the Maine Constitution because it is “essential to the preservation of the rights and liberties of the people.”70 Montana believed the same thing (see chapter 14). Public education is an American value. In Maine, it’s up to local “towns to . . . support and maint[ain] public schools.”71 But Maine is rural. Some areas are so sparsely populated that they can’t support constructing and running schools—actual buildings. So Maine set up a program to educate those rural students with no access to a public school.
Despite my characterization in American Crusade, this program isn’t really a voucher program. The point is not to give parents “school choice,” in any sense of that phrase, but to provide a public education. Or, as the Supreme Judicial Court of Maine put it, the goal is for children “to receive a free public education, not to guarantee children a free education at any public or private school of their choice.”72 The program provides a public education. It’s just a question of resources and efficiency.
One option is that the underpopulated school district can contract with another school district to take its students. Alternatively, the school district will pay some of the tuition at a public or private school the family in the rural district selects, so long school meets certain academic, health, and safety standards. And so long as the curriculum doesn’t impose religion on students. It was this requirement, that the public education be “nonsectarian,” that the Crusaders attacked in court.
“A private school may be approved” to receive tuition assistance “only if it [i]s a nonsectarian school.”73 But as clear as that statutory language seems, the state administered the program a bit differently. It explained that a religious school might be approved for the program, so long as it could provide a secular education to students.74) In other words, to not qualify, it had to be both a religious school and present educational material through the lens of that faith. So the enforcement of the “nonsectarian” provision was less about religious schools, and more about religious instruction. The provision prohibited a religious use, not a religious status, to borrow an unhelpful distinction from the earlier Montana decision.
Institute for Justice, the archetypal Koch-created Crusader founded by the Thomases’ friends Clint Bolick and William “Chip” Mellor (see page 205), and First Liberty Institute sued over the program, claiming discrimination and persecution against Christians.
But this wasn’t the first time Crusaders had challenged the nonsectarian requirement in Maine.
Crusaders had brought this exact same challenge to this exact same nonsectarian requirement four times in the previous two-and-half decades. Four times they lost. Twice they asked the US Supreme Court to review the case and both times the court declined. But that was before our Supreme Court itself had called for this Crusade and before Leonard Leo, Trump, and McConnell packed the court.
In the late ’90s, the US Court of Appeals for the First Circuit and Maine’s Supreme Court heard separate cases on this nonsectarian requirement and agreed that Line #3 prevented Maine from allowing payments to sectarian schools.75 The American Center for Law and Justice, run by Jay Sekulow, brought the federal case. The state court case was brought by one of the same Crusaders who litigated the 2022 case, the Institute for Justice.76 IJ asked the Supreme Court to take its 1999 case. The court refused.77
At the end of chapter 15, I wrote about how IJ used myths and disinformation to successfully target Justice O’Connor in the school voucher case the Supreme Court wrongly decided 5–4 in 2002. After that 2002 decision, IJ and Sekulow’s group brought their second round of challenges to the nonsectarian requirement, both of which ultimately failed in 2006.78 These 2006 losses came just after Roberts and Alito had been put on the bench; during the “slow transition and a post–Ten Commandments cases breather” and before the 2010 Deus vult. The Supreme Court demurred when IJ asked it to review that 2006 loss. But that was then.
In any normal world, getting slapped down repeatedly by every court in the land for two decades would mean the legal questions in the case are well settled. They were. This wasn’t about what the law actually says or means, it’s about the Crusade, which is about changing what the law says and means—about weaponizing religious freedom to trump laws that enshrine equality.
This new court—after the Deus vult and after the Supreme Court had been packed—reversed course. The six justices in the ultra-conservative majority undid all this precedent and erased Line #3.
The Crusaders claimed that their Christian parents had a right to access and spend taxpayer money to attend Christian schools. The court agreed. In her dissent, Justice Sotomayor wrote that this decision, combined with the others we explored in chapters 13–15, “upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”79
“Indoctrination” is the correct word. Education is a misnomer for what occurred in these would-be state-funded schools. There were only two schools involved in the case. Both Christian. Bangor Christian School and Temple Academy.
Bangor Christian School is a “ministry” of Crosspoint Church in “its fifth decade of training young men and women to serve the Lord.”80 The headmaster is employed by Crosspoint Church, is a pastor at the church, and reports to the lead pastor at the church and its Deacon Board, upon which only men can sit.81 Other Bangor Christian staffers must affirm that “he/she is a ‘Born Again’ Christian who knows the Lord Jesus Christ as Savior” and “must be an active, tithing member of a Bible believing church.”82 Bangor Christian’s “vision” for students doesn’t mention education, but it does mention “faith,” “Christ,” and “God’s love.”83 Its philosophy of education is to “assist families in educating their children with a Biblical worldview. Every facet of our program focuses on understanding God.”84 Students must attend chapel and are told to spread Christianity.85 The “Bible,” said the principal, also a guidance counselor and graduate of Jerry Falwell’s Liberty University, “is the primary thing in our school.”86 The school’s first “Objective in Education” is “to lead each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of his/her life.”87 The principal even explained in a deposition that “religious instruction is completely intertwined and there is no way for a student to succeed if he or she is resistant to the sectarian instruction.”88 In short, indoctrination.
Temple Academy is a “ministry” and “extension” of Centerpoint Community Church, run by the church’s lead pastor, who is also the school superintendent, and overseen by the church’s board of deacons.89 Applicants for any staff position, including custodian, “must be a born-again Christian.”90 It “teaches children that the Bible is the Word of God, that it is infallible, and that it should be obeyed in every aspect of life.”91 This “biblically integrated education . . . means that the Bible is used in every subject that is taught,” according to Denise Lafountain, the Head of School.92 From seventh grade on, students must sign a “covenant” affirming that they “will seek at all times, with the help of the Holy Spirit, to live a godly life in and out of school in order that Jesus Christ will be glorified.”93 Temple’s educational philosophy “is based on a thoroughly Christian and Biblical world view,” and its mission is “to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.”94 Temple’s first four objectives are:95
- To provide every student with the opportunity to accept Jesus Christ as their personal Savior.
- To foster within each student an attitude of love and reverence for the Bible as the infallible, inerrant, and authoritative Word of God.
- To teach the fundamental doctrines of the historic Christian faith.
- To develop within each student a biblically based morality.
Its educational goals include teaching subject areas . . . from a Christian point of view” and having students “develop a truly Christian world view by integrating studies with the truths of Scripture.”96
In short, Temple wants “to lead every student to a personal, saving knowledge of Christ.”97 Again, indoctrination.
The Christian schools themselves were not even parties to the case. The Crusaders found families that wanted to send their children to each school, but the schools wouldn’t even agree to accept state money to cover tuition, even if that had been permissible under the program. In other words, even if the parents won the case, the schools refused to agree to take the money and their kids on. The entire case was hypothetical—and our courts are not supposed to resolve such cases. The Supreme Court decided the case anyway, showing, yet again, that these justices are desperate to decide cases that might further the Crusade.
The schools were reluctant to publicly agree to accept the money because they feared the state regulation that would accompany state funds.98 That might mean that the school would have to hire staff and admit students equally without regard to religion, race, or sexual orientation—and both schools are virulently discriminatory against LGBTQ people and non-Christians.
Temple Academy includes in its employment agreement a statement that “God recognize[s] homosexuals and other deviants as perverted.”99 It won’t admit LGBTQ students or even students with LGBTQ parents.100 Temple also has a “pretty hard lined” written policy of admitting only Christians and “students from homes with serious differences with the school’s biblical basis and/or its doctrines will not be accepted.”101
Bangor Christian is similarly awful, with policies for expelling LGTBQ students and firing or refusing to hire LGBTQ staff.102 Being “openly gay” is considered “immoral activity,” and such students are forced into “counseling” and, if they remain “entrenched in this is who I am, I think that it is right and good,” they are expelled.103 Transgender and nonbinary students who “refused to stop presenting himself or herself as a gender other than that on said birth certificate after conversations and counseling with school staff” would be expelled “just as a student who insisted on drinking every weekend would,” explained the principal. Bangor Christian indoctrinates children into patriarchal sex roles, teaching “children that the husband is the leader of the household.”104 Ninth graders are taught in social studies to “refute the teachings of the Islamic religion with the truth of God’s Word.”105 Now, in the name of religious freedom, every Maine taxpayer, including Muslims, will be paying for those lessons.
Chief Justice John Roberts wrote the opinion, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
Roberts wrote that Maine’s attempt to ensure that rural students received a nonsectarian public education “is discrimination against religion.”106 He added that Line #3 “does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”107 No member of the community was excluded. The entire point of the program was to ensure that everyone gets a full education and in a way that doesn’t violate the religious freedom of everyone in the state by forcing them to support religious indoctrination and education in a religion that is not their own.
The opinion is full of gaslighting. For instance, Roberts expanded the children’s ministry case out of Missouri and the neo-vouchers case out of Montana that we discussed in chapters 13 and 14. Recall the “fatal flaw” from those cases, the “nauseating acrobatics” I mentioned on page 192 as the “use/character distinction.” I explained, “Roberts invoked religion to benefit the church—the church has a right to religious freedom—but then pretended religion was not relevant to Line #3 state/church separation. To get the benefit, yes, recognize religion; if there’s a burden, no, ignore the religion.” Roberts effectively wrote in those cases that, when it came to government funding, discriminating against the religious character of an institution was impermissible, but the government could put restrictions on the “use” of funds it disbursed. In the Maine opinion, Roberts dispenses with this pretense, instead writing as if Line #3 never existed. He wrote, “the prohibition on status-based discrimination . . . is not a permission to engage in use-based discrimination.”108 Gaslighting.
But the worst gaslighting centered on equality and discrimination more generally. First, the ultra-conservative majority claims to care about nondiscrimination but ignores the vile discrimination the Christian schools engage in. It’s almost as if Christians discriminating is not a kind of discrimination that concerns the conservative justices. Roberts might respond that that’s private discrimination and therefore permissible, a flawed logic which ignores the crux of this case: the receipt of public funds.
Second, Roberts and his crew are discriminating in the very opinion that claims to be about nondiscrimination. They claim to be preventing discrimination against Christians and that nondiscrimination is the basis for their opinion. And that’s simply not true. As we’ve just seen, the court is allowing Christians to discriminate. Not only that, the justices are forcing taxpayers to fund that discrimination. Roberts arrives at this absurd conclusion by focusing only on the rights of Christians and ignoring everybody else’s rights. In other words, by discriminating.
Nowhere does Roberts recognize the rights of LGBTQ and non-Christian students who can’t attend or work at these schools.
Nowhere does Roberts recognize the central religious freedom in this case lies with every single taxpayer. The government violates the rights of every taxpayer when it uses its coercive taxing power to take money out of your pocket and turn around and give it to a church or to a religious school for religious education or indoctrination or instruction. Justice Breyer, in his dissent, even included the Thomas Jefferson quote that I’ve used repeatedly to explain this concept, including in an amicus brief in this very case: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”109 That violation of religious freedom is what Maine’s nonsectarian requirement prevented.
The Supreme Court ignores true religious freedom by ignoring everybody except the conservative Christians—that is the only group whose religious freedom matters. Everybody else’s religious freedom is literally written out of the opinion.
Recall what I wrote in Chapter 14 about the Montana neo-voucher case:
Roberts “doesn’t see” how compelled-support clauses protect religious freedom because he willfully blinds himself to everyone except the Christian parents and Christian schools. Roberts decided the case by ignoring and excluding the rights of minorities. There’s a word for that: discrimination. This isn’t hyperbole; it’s bigotry—in print, in a Supreme Court decision.
Here, it happened again.
There are two possible solutions that could undo most of this opinion. Three if you include the idea of opening up, for instance, a school run by the Satanic Temple. But even if that’s a realistic option, it’s not a solution for reasons I’ll detail later.
First, we can try to put antidiscrimination rules in place for any school that accepts taxpayer funds. We should try, but I’m skeptical about the likelihood of success before this court. Some rules were already in place here; remember, the two schools were reluctant to take the money because they didn’t want to follow those anti-discrimination rules. And still, SCOTUS stepped in and decided the case in their favor, even with the schools’ hesitancy, with those rules in place, and with the discrimination of these schools all over the record. Crusaders will challenge any nondiscrimination rules on religious freedom grounds and we’ve seen where this Supreme Court stands on issues of discrimination: “Discrimination” against Christians is unconstitutional. Actual discrimination against others is not a problem, so long as Christians are doing the discriminating.
Others experts agree with my skepticism. Two brilliant attorneys in this arena, Rebecca Markert and Elizabeth Cavell, discussed this on the We Dissent podcast (cohosted with two other brilliant attorneys, Alison Gill and Monica Miller. I highly recommend this podcast.) Markert predicted that this would be “the next level of litigation,” in this area. Cavell agreed, “That is the next frontier. There’s always a next frontier. There’s never an end to what religious groups are going to demand in terms of privilege and special treatment.”110 AP reported in late August 2022 that only one religious school had signed up to receive these tuition assistance dollars with the deadline only two days away. This will indeed be the next frontier.111
The second approach could be more successful. We could abolish all programs that look like vouchers. We could stop publicly funding private education. Public funds should support public schools. Even this conservative supermajority didn’t say taxpayers must fund a parallel system of private education, only that if we fund private secular education, we must fund private Christian education.112.)) We can abolish programs that direct taxpayer funds to private education altogether and focus on improving, strengthening, and expanding public education.
This entire case might have been avoided, if the Maine had had public school districts rely on other public school districts or helped the local districts build and grow the infrastructure needed to actually provide for the right that was important enough to enshrine in its constitution. Instead, the state allowed local districts to outsource government services to private entities. Half of Maine’s 260 local school districts have no high schools and more than 4,500 secondary students attended private schools to get a public education. The state could have sent them to other public schools and if the area has enough students to support a private school, it ought to be able to support a public school (see chapter 16’s musings on the “general welfare”). To be more specific, Bangor High School, which serves 1,200 students, is just a mile and a half down the road from Bangor Christian. Temple Academy is in Waterville and Waterville Junior High School is less than half a mile down the road and serves more than 350 students. Waterville High School is a mile and a half down the road in the other direction and serves more than 500 students. All the state had to do was use its other public schools to provide public education, not outsource that public education, and this all could have been avoided.
We encountered the rebuttal to this good idea and the concession the conservative supermajority seems to offer here in the Montana case: “the Montana Supreme Court struck down the entire neo-voucher program.” It did this not just because the program raised Line #3 problems, but because the state constitution was meant to give “unequivocal support . . . for a strong public school system” and believed that “any diversion of public funds or effort from the public school system would tend to weaken that system in favor of schools established for private or religious purposes” (page 203). And still, as I explained, “Roberts ordered the Montana Supreme Court to resurrect the neo-voucher scheme.”
But we must try.
* * *
Look how far the Crusade has come. The Crusaders have shredded the Lines that protect our freedom of conscience. We’ve gone from “there might not be a Line #3 problem here if parents are exercising private choice” in the early 2000s, to a Crusade in the name of religious freedom that forced taxpayers to fund religious indoctrination.
Earlier in the book, I predicted that this court would basically declare “that the separation of state and church is hostile to religious freedom.” It did. Justice Sotomayor wrote in her dissent in the indoctrination funding case dissent: “the Court leads us to a place where separation of church and state becomes a constitutional violation.” The majority did this quite literally, not even mentioning hostility, but simply calling church-state separation, “discrimination against religion.”113
The amazing part of this hostility argument is that the justices making it claim to be basing their arguments on the original text of the document. They somehow believe that the framers wrote a sentence in which the first half is hostile to the second. They ignore half the words of a sentence to reach their conclusion about the original meaning of the words. This is, of course, not a new strategy: it’s precisely what they’ve done with the militia clause of the Second Amendment. It’s also effectively what they’ve done with the entire Ninth Amendment, which tells us explicitly that people have constitutional rights that are not written down in the text of the document itself. That’s certainly what Alito did in the Dobbs decision. The logic of this alleged legal philosophy, Originalism, is obscenely laughable. It’s a conservative political ideology masquerading as legal philosophy.
This case is almost the culmination of the funding cases we’ve been discussing, beginning with the children’s ministry case (see chapter 13) but not quite. These cases have opened the door to government-enforced tithing. Taxpayers are forced to contribute to religious indoctrination now. With that Line already crossed, already obliterated, what’s stopping the Crusaders from taxing us to fund religious indoctrination at churches themselves? The only check, the only thing preventing that right now, is the same power-drunk bloc of the US Supreme Court that opened the door in the first place. Justice Sotomayor’s final dissenting paragraph laid this Crusade bare and warned about what might come next:
What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.114
Six days later, the conservative bloc did it again.
Public Schools as a Mission Field, Kennedy v. Bremerton School District
The Crusaders brought considerable resources and dishonesty to the case of a public school official who refused to stop imposing his prayers on children. They spent most of those resources crafting and selling a dishonest story. The Crusaders sold the story to the public, then to the court; and it bore little resemblance to reality. This was not some poor pious public servant being told by the big bad government to shut up about his religion, as the Crusaders argued; rather, this was a man who used a government position of power and influence over a captive audience of other people’s children to force his personal religion on them and violate their constitutional rights.
This public high school football coach began one prayer—“some version of the basic prayer he’s said for years,” according to reports—by thanking his Christian god for giving him access to other people’s children: “Lord, I thank you for these kids and the blessing you’ve given me with them.”115 The team, made up of kids in Bremerton, Washington, who just wanted to play, was this coach’s mission field.
Joe Kennedy coached both JV and varsity football at Bremerton High School. After games, while the players and coaches were shaking hands, and in their uniforms, Kennedy would gather both teams at midfield for a prayer. He’d hold up helmets of each team and deliver motivational speeches laced with Christianity and prayers. Kennedy claims he began these prayers on his own after he was hired in 2008, but the only evidence for this is his word.
The on-field prayers weren’t nearly enough: “Between 2008 and 2015, he led students and coaching staff in a locker-room prayer prior to most games” and joined “prayers that took place in the locker room after the games had ended. ”116 Kennedy used the kids to pressure each other: “Kennedy . . . encouraged players on our team to ask the other teams’ coaches and players to join us [in prayer].”117 He relied on the peer-to-peer proselytizing we saw in the chapter on Montana neo-vouchers (p.202).
Families told the school district that their children felt pressured and coerced to join the Christian prayers foisted on them this adult. One “very upset” parent told the Bremerton High School principal that “his son had felt compelled to participate, because even though he was atheist, he felt he wouldn’t get to play as much if he didn’t participate” in the prayers.118 The athletic director testified that families were grateful when the district finally asked Kennedy to stop imposing prayer on their children: “They described how Mr. Kennedy’s prior practice had put them or their children in awkward situations where they did not feel comfortable declining to join with the other players in Mr. Kennedy’s prayers.”119 The superintendent declared, under oath, that “children had participated in the team prayers only because they did not wish to separate themselves from the team.”120 These were uncontroverted facts.
Several Bremerton employees, local families, and a former player even filed a brief with the Supreme Court highlighting this coercion and pressure.121 The former player, who was a senior the year Kennedy made his personal piety the center of attention, explained, “I always listened and did as I was told. I wanted to play football and treated [Kennedy’s] prayer time as any other order from a coach such as to exercise, attend study hall, or execute a play. In respect, I always took a knee but never bowed my head. For four years I knelt for [Kennedy] in solidarity as he prayed so there would be no objection to me playing football.”122 That former player confirmed that the team had no freedom of choice, the “prayer circle . . . was something that was expected.”123 If the coach tells you to run extra laps, you do it. If the coach thinks you need to hit the weight room a bit more, you do. If the coach hints that you need more study hall, you go. And if the coach is praying during his post-game pep talks, you join.
The pressure and involuntary nature of the prayers was made clear later, when everything blew up. There were a few times that Kennedy didn’t pray on the field, either during the window in which he listened to reason before the Crusader got involved or after he was put on administrative leave when his prayers began threatening the safety of students. When Kennedy didn’t pray, none of the kids prayed either.124 They only prayed when Kennedy led them in prayer. That’s not voluntary. The students felt pressured to pray. They felt they had to pray to play.
The law here was clear. Line #3. We already covered this in Chapter 4. No other adult was free to walk onto the field and pray. No other adult had access to other people’s children. Only government officials had that power and access. Kennedy was there because of his role in the public school, and no aspect of that role was religious. The problem was that he was praying with other people’s children in his official capacity as an agent of the state—as a coach. He was using the power and influence of his public office to bring children into his personal religious ritual.
This wasn’t a new legal question. Variations on this same case had been decided countless times in and out of court. Just before the Crusade, in 2009, the Supreme Court refused to hear the case of a New Jersey football coach that had prayed with his team for 23 years.125 In 1993, the Fifth Circuit, the same Circuit now packed with Crusaders, stopped a girls’ basketball coach at a public school from praying with students. The court noted “the subtle coercive pressures” that stem from the coach’s involvement “will be perceived by the students as inducing a participation they might otherwise reject.”126 Kelly Shackelford, who now runs First Liberty Institute, was working for the Rutherford Institute, yet another Crusader group, and tried to intervene in the case.127 (Rutherford was founded in 1982 by John Whitehead, a lawyer and protégé of R. J. Rushdooney, one of the granddaddies of white Christian Nationalism and the Christian homeschool movement in America. Rushdooney wrote a foreword for Whitehead’s 1977 book, The Separation Illusion: A Lawyer Examines the First Amendment, which argues there is no separation of church and state and America was founded as a Christian nation.128)
Because this was well-trodden and clearly unconstitutional ground, resolving the issue with Kennedy’s prayers should have been easy. And there was a brief window when a peaceful resolution in keeping with decades of law seemed likely. For a few short weeks in September of 2015, the coach listened to the school district, seemed to understand Line #3, and stopped praying with students.129 He didn’t stop praying altogether, just stopped using his position to pressure students. “Nearly an hour after the game” at which he didn’t pray, when “he was the only person left in the stadium . . . he walked to the 50-yard-line, alone, and bowed his head in prayer,” reported local media.130 The school district had no problem with that genuinely private prayer and would have let him continue. The coach even canceled a meeting with the superintendent, writing in an email that the whole fiasco was over and “not a big deal anymore.”131 He even told the superintendent, “Nice job!!!”132
But this peaceful resolution that protected the religious freedom of students and allowed Kennedy to exercise his own religious freedom without abusing government power was derailed when the Crusader charged in.
First Liberty Institute didn’t see a winning legal case. The Institute saw a cash cow: Christian prayer, American football, and a military veteran with an all-American name, Kennedy. It saw a narrative that would rile up Christian Nationalists and convince them to empty their pockets. As long as the Institute could keep the case alive and preach “the poor persecuted Christian” message, the case would pay dividends. Winning didn’t really matter and when the Institute took this new case, it was a legal loser. The Institute’s CEO, Kelly Shackelford, knew the case was a loser—he’d lost that identical case in Texas in 1993. The Supreme Court had changed since 1993 and the conservative members had called for the Crusade in 2010, but the Institute found this new case in 2015, before there was any indication the Crusaders would get three new justices on the high court. The Institute kept the case alive long enough for Trump to pack the court and even roped Trump into supporting the case and Kennedy by name on several occasions. The Institute made this coach—not the students or religious freedom or the Constitution—the cause célèbre of Christian Nationalism and the Crusade.
The Institute torpedoed the peace Kennedy and the superintendent had brokered. Once happy with truly private and personal prayers, Kennedy’s religion now required the coercive, on-field, center-of-attention prayers.133) Quiet, private prayers of the kind Jesus requires in his Sermon on the Mount were out of the question: “I’m not a guy who hides in a corner and does a secret prayer to God,” he said, “I’m very open about my faith everywhere I go.”134 Kennedy was never asked about this shift in his religious beliefs or how his own savior explicitly condemns public prayer as hypocrisy. Not in court and not by the media. The shift seems less theological and more financial. A quiet solution that allowed the coach to pray on his own without pressuring students didn’t suit the Institute’s fundraising goals for the case. Media coverage did.
In mid-October, the Institute sent a letter to the school district that announced, “Kennedy will continue his practice of saying a private, post-game prayer at the 50-year line.”135 (In an interesting admission, Kennedy never resumed the locker room prayers.136) The Institute released the letter to the media and held a press conference. Flanked by an Institute lawyer, Kennedy announced that he would again pray at the center of the stadium.137 Steve Doocy interviewed the same pair on Fox & Friends’ recurring “The Fight for Faith” segment.138 Todd Starnes, a Christian Nationalist propagandist who spent many years at Fox News, published an opinion piece, “EXCLUSIVE: Football Coach Says He Will Defy School’s Prayer Ban,” even though Kennedy was allowed to pray in ways that didn’t violate the religious freedom of students and families.139 The story featured several photos, “Courtesy Liberty Institute.” Kennedy was interviewed by ABC and Good Morning America.140
The story became hugely popular with Christian Nationalist media outlets and personalities. Glenn Beck posted about it to his three million Facebook followers.141 Pure Flix, the Christian movie company behind the God’s Not Dead franchise (see page 50), used Kennedy to promote another Christian football movie.142 The Christian Broadcasting Network interviewed Kennedy and overlaid his interview with scenes from the syrupy Christian movie, Facing the Giants, which Kennedy claimed inspired his prayers.143 Created by Sherwood Baptist Church, which later produced other garbage like Fireproof and Courageous,144 the main character in Facing the Giants was a football coach at a private Christian school where forcing prayer on students is, if not seemly, at least not unconstitutional.
The day before the game at which Kennedy vowed to pray, Alex Kendrick, the writer, director, producer, and star of this grotesque sports film caricature went to the field where it was filmed to shoot a video supporting Kennedy.145 With a 110-ft.-tall Christian cross in the background, Kendrick called on people to “go to the games on Friday night and stand with Joe Kennedy, the coach and Bremerton High School.”146 Sporting a Liberty University hat and a T-shirt that unironically quoted a portion of Matthew 6:5–6, Kendrick said, “I am proud to be persecuted for my faith if it happens because Jesus Christ is the most important thing in my life.” He posted the video to his Facebook page, which now has nearly 700,000 followers, writing in the post that “PRAYER can lead to REVIVAL.”147 Don’t be surprised when you see Kennedy’s story in book and movie form in the near future.
This media tour had the desired effect, but Kennedy also wasn’t fulfilling the basic duties of his job. Other coaches complained that he was missing practices because he was too busy doing interviews for every major outlet, “Fox and Friends and the O’Reilly Factor and Good Morning America. You name it.”148
Throughout these appearances, the Institute insisted on pushing the deceptive narrative that Kennedy just wanted to pray privately. Holding press conferences and appearing on Fox News to trumpet their “private, personal” activities seems to suggest that they’re anything but. Back then, the primary goal of the media attention wasn’t to buttress what judges would later dub the Institute’s “deceitful narrative” of the case—that would come later—it was to generate donations and whip the mob into a frenzy.
It worked. The superintendent testified that staff were “flooded with thousands of emails, letters, and phone calls from around the country, many of which were hateful or threatening. At times, the District’s telephone system was essentially shut down because of the volume of calls.”149 One administrator told media they had been “‘phone bombed’ by supporters of school prayer.”150 The callers hurled insults like “spawn of Satan” and one “told her they were praying for her house to burn down.”151
Attendance at games spiked and the head football coach noticed more people around the school; people from “outside of the local community” and “of a nature or quality that led me to believe that the environment around the football program was becoming unsafe.”152 Just a few months earlier, Trump began holding his election rallies, which would become notorious for their rage and simmering violence.153 Trump only held two rallies in Washington, both on May 7, 2016, but, after the Institute’s media tour, the Bremerton football games began to have a similar feel. Video shows the crowd at one game waving the same Christian flag that the insurrectionists carried on to the Senate floor on January 6 and which the Supreme Court forced Boston to fly in another case Crusaders brought this term.154 In Bremerton, they flew the Christian flag on the 50-yard line and sang Amazing Grace, marking their territory quite clearly.155 Members of the Christian Motorcycle Association showed up at games.156 The head coach gave his own examples of the escalation. After one game, “an adult who I had never seen before came up to my face and cursed me in a vile manner.”157 Another time, “I observed a man in a poorly maintained camper truck in the school parking lot drinking and with no shirt on.”158 The vitriol and division this media tour caused and the hateful threats the head coach received—he even worried about being “shot from the crowd”—led him to quit.159
After holding that press conference and announcing on national television he would defy the Constitution, Line #3, and violate the religious freedom of students, Kennedy did just that.
After the October 16 game, he walked to the 50-yard line and knelt to pray. He wasn’t alone.160 The outside agitators riled up by the Institute jumped the fence and rushed the field. One player later explained to the Supreme Court that, even before the two teams had a chance to shake hands, more than five hundred people “storm[ed] the football field . . . from both sides, hopping the fences and rushing to the field to be close to Kennedy,” it was “uncomfortable and unsafe.”161 The mob knocked over students in the marching band, and dodged among the cheerleaders and student athletes to get to Kennedy.162 A state legislator joined the prayer, too.163 As did one of the Institute’s attorneys.164 Journalists and television crews, at the game thanks to the Institute’s media tour, rushed in and enveloped the prayer circle.
In the photos, Kennedy is surrounded by this mob. The group of students close to him because they were on the field are not Bremerton High School students, but students from the opposing team. Not coincidentally, this was “the only time a choice was given on the matter of praying.”165 It was made clear to students the day before at the team meeting that they could pray or not, but before that conversation, “prayer circle . . . was something that was expected.”166 When the adult pressure was removed, they opted out.
To prevent students from being injured at later games and maintain some sort of order, the school district arranged for the police department to provide additional on-field security, posted signs discouraging people from charging the field, made announcements during the game, and made robocalls “to District parents, and otherwise put the word out to the public that there would be no access to the field.”167 It also fended off requests from the local Satanic Temple (TST) to deliver prayers on the field. TST members attended a later game, and that religious diversity brought out the worst in some people, who “swarmed the fence where the Satanists stood outside. The mob climbed the fence, shook it, held up crosses, threw liquid, and chanted ‘Jesus.’”168 Remember, the Crusade is not about religious freedom, but about Christian supremacy and privilege. After learning the field was off limits to students and staff, TST demurred on their request—but this too shows that Kennedy was acting as a school official and abusing his power, position, and access. Nobody else was permitted on the field for “private prayer.” Kennedy himself agreed in his deposition that he “remain[ed] on duty following games until the last student has left the event.”169
During all of this, the school district was trying to work with Kennedy to accommodate his prayers. On October 23, it, “emphasize[d] that the District does not prohibit prayer or other religious exercise by its employees,” but that the prayers must not violate the Constitution, either Line #2 or #3.170 Any prayers or rituals that don’t “interfere with the performance of job duties, can and will be accommodated.”171 Even beyond the prayers, getting students trampled, media grandstanding instead of attending practice, and risking the safety of colleagues and students in your charge, surely amounts to interference. But Kennedy was following the Institute’s playbook now.172 So when the superintendent explained that “development of accommodations is an interactive process” and asked Kennedy to engage, Kennedy ignored him.173 Even when the district explained that it “is common for schools to provide an employee whose faith requires a particular form of exercise with a private location to engage in such exercise during the work day, not observable to students or the public,” Kennedy didn’t reply.174
But that very night, Kennedy again took to the field to pray. The additional security kept most of the interlopers off the field for that October 23 prayer, but he was “joined by about a dozen other adults” and players on October 26.175 The state legislator was back on October 26, too. State Representative Jesse Young, a Republican from Gig Harbor, is a self-proclaimed “Christian conservative” who’s social media photos feature “One Nation Under God” imagery prominently.176 Young later proposed a bill that would have punished school districts for upholding Line #2 and #3 with fines of up to $20,000—opening another front on the assault on our public schools (pages 203–4).177 After the Supreme Court’s final decision, Young took the stage at a church and said, “the significance is that we now have a battle coming. The Enemy doesn’t like losing ground.”178
Kennedy missed practices, riled up a mob, risked the health and safety of students and his colleagues, and, once the Crusader was involved, shunned every chance for peaceful resolution. He refused to stop the activity causing this chaos. The District had little choice. After the October 26 prayer, the district put Kennedy on paid administrative leave and noted again that it was “willing to discuss ways of accommodating your private religious exercise.”179 The Institute and Kennedy never responded to this accommodation offer.
The coach also refused to meet with his supervisors for a performance review, a standard practice. Kennedy remained on leave until, like every other coach on staff, his contract expired. Also standard practice. Four of the seven coaches that year opted not to reapply for the next year, including Kennedy. He wasn’t fired. His $4,498 contract expired just like it did every year. Kennedy chose not to reapply.
Incidentally, Kennedy knew all of this was standard procedure. In fact, he probably knew this better than the other coaches or employees. He had a pretty good connection: “The person with oversight of the posting of jobs, interviewing and hiring of the 2016 [coaching] positions was Mr. Kennedy’s wife.”180
Again, a quiet settlement and accommodation or a coach quitting did nothing for the Institute or the Crusade. Adjusting behavior based on a performance review and reapplying for the job like everyone else doesn’t serve the persecution narrative the Institute trumpets. The Crusaders wanted more. So they ignored the clear, quiet solutions and instead continued to whip up the media frenzy. They claimed he was “fired” for his faith instead of not reapplying for a contract his wife controlled and peddled the story of a veteran persecuted because he’s a Christian.181
Kennedy and Kelly Shackelford joined Bill O’Reilly on his show after Kennedy was suspended.182 At the first game after his suspension, Kennedy sat in the stands with the spectators and prayed “surrounded by others, and with news cameras recording his actions.”183 Without the pressure and authority, none of the students on the team prayed—just Kennedy in the stands, exercising his personal religious freedom without abusing his power. The district didn’t try to stop him. But the imagery fed the media and the Crusader-backed media frenzy continued. More than forty members of Congress, nearly all Christian Nationalists, sent a letter to the Bremerton superintendent and the school principal.184 Then-candidate Trump, an expert in stochastic terrorism, which he would employee to great effect on January 6, tweeted, “Support Coach Kennedy and his right, together with his young players, to pray on the football field,” mistakenly adding “Liberty Institute just suspended him!” which must have annoyed the Crusader to no end.185 But the Crusader capitalized on Trump’s interest almost exactly a year later.
The Institute orchestrated an interaction between then-presidential candidate Donald Trump and their client. Trump gave a short speech to the Retired American Warriors PAC, a small PAC that has done little except this event.186 After Trump’s speech, he was joined on stage for a conversation and Q&A with two zealots. Tony Perkins, who runs Family Research Council (a Crusader and hate group, see pages 6 and 43) and who Trump would put on the US Commission on International Religious Freedom (a position Leonard Leo once held), and retired General Jerry Boykin, a Christian Nationalist (who argued that “we’re a Christian nation, because our foundation and our roots are Judeo-Christian” and cast US military excursions in religious terms, “I knew that my God was a real God and his was an idol”187) who sits on FRC’s board.188
Recall that the Family Research Council was founded by James Dobson, who also helped found the Free Market Foundation, the forerunner to the Institute (see page 176). Again, it’s all very incestuous.
FRC and the Institute have worked closely together on several projects to further the Crusade. It makes sense that the two would team up to peddle the dishonest narrative about this coach, because they’d had success reframing every collision of religion and the law as hostility toward religion. Building on fears of Christian persecution, the two Crusaders began publishing a report which they claimed cataloged this hostility.189 Even a cursory examination shows significant problems. Attorney Ryan Jayne and I exposed the report’s problems several years ago.190 For instance, the 2013 edition claims that there were “almost 1,200” attacks on religion and that is simply false. Even sticking to the Institute’s version of counting, the report identifies fewer than 980 “attacks.” The Institute offers no criteria for what constitutes an “attack” on religion, but no slight is too small. “Attacks” include: mockery, an advocacy organization “react[ing] negatively” to a politician saying they favor religious candidates,191 and criticism of legislation that would make the bible a state book.192 Other “attacks” are final court decisions in which the court upheld the lines we discussed in chapter 3, lines that actually protect citizens’ religious freedom. The Institute even included Supreme Court decisions that advance the Crusade, such as the 2012 Supreme Court decision holding that anti-discrimination laws do not protect employees in a religious organization’s hierarchy (i.e., “ministers”) and allowed the organization’s claim that teachers were ministers who could then be fired for any reason (see page 244).193 This 2012 case is listed as an attack on religion in at least five editions of the report.194 Elsewhere on its website, the Institute admits the case is a victory.195
The Institute and FRC also present the report as a catalog of annual statistics—attacks that happened in a particular year. But instead, it’s a cumulative compilation. They list court cases, news releases, and online stories and keep adding to that same list every year with no regard for date or merit. They added pre-2016 stories to the 2017 edition, then included all those stories in the count to show that hostility had increased in just a year. It’s like making $100,000 a year and claiming after three years that your salary is $300,000 and has seen a threefold increase. The Institute relies on this deception. One news outlet ran the headline: “1,285 Attacks on Religion in US in 2015, 100 Percent Increase Since 2013.”196 But unless you understand the Crusader sleight of hand, you’d miss that the report says something slightly different: “More than 1,200 cases are documented in this 2016 edition.” Again, most of the cases “documented” in the 2016 report did not occur in 2016. There wasn’t any increase in hostility, or even any good examples of hostility, it’s just that the Institute and FRC were able to manufacture more hostility. Production was up.
The two groups were able to manufacture controversy for the coach at that 2016 Trump campaign event. An audience member asked Trump, Perkins, and Boykin about “religious freedom of expression” in the military. In the long-winded preamble, the questioner, Ron Crews, a retired Army chaplain and Executive Director of Chaplain Alliance for Religious Liberty, mentioned several religious freedom cases as if reading from a script. (Crews and the Chaplain Alliance work regularly with the Institute, too, including filing amicus briefs in Kennedy’s case.197 ) Each of the five “attacks on military religious freedom” just happened to be a case the Institute was handling.198 The question Crews eventually asked—“How will you in your administration combat these attacks on military religious freedom of expression?”—was a plant.199
Trump began his answer with a vague reference to the Institute’s new golden goose: “The other day just to add to your list, I was watching one of the news programs and they had a—I think high school football coach . . .”200 This tale seems unlikely. After a year, the story had faded from the news and no stories had run in the previous five weeks or so. It seems more likely that Trump was briefed on the case for this event. If the question was that heavily scripted in favor of the Institute’s work, it’s easy to think Trump was given the Institute’s deceitful narrative about the coach to include in an answer on religious freedom. At any rate, after Trump mentioned the coach, several people, perhaps Perkins and Boykin, though it’s unclear from the video, seized on the mention and interrupted to say “He’s here!” Kennedy was indeed in the audience in Herndon, Virginia, some 2,700 miles from Bremerton. And the men on stage knew it.
Trump told the coach to stand up and they chatted: “So you’re not allowed to pray before a football game?” Trump asked, adding, “I didn’t know you’d be here. I thought it was horrible.” The coach peddled the narrative and Trump trotted out the right buzzwords: “I think it’s absolutely outrageous. I think it’s outrageous. I think it’s very, very sad and outrageous. Religious liberty, hey, it’s about religious liberty. . . . It’s very unfair what they’re doing to religion in this country.”201 For Crusaders, when a Christian is not allowed to abuse government power and position to impose their religion on others, his religious freedom is violated. Then Trump and the discussion moved on.
The coach’s response to Trump’s support? “Cool,” said the man who claimed to be trying to mold his players into good people.202 No doubt the Institute and FRC went to great lengths to orchestrate this exchange, but they were unable to capitalize on it for long. Four days later, the Washington Post broke the story and published a tape of Trump bragging about sexually assaulting women: “Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything.”203
One month after that, the Institute’s senior counsel and director of strategic affairs, Ken Klukowski, joined Trump’s presidential transition and was put “in charge of ‘protecting constitutional rights.’”204 Previously, Klukowski was a senior legal editor for Breitbart, first writing for that extremist fringe-right outlet in 2009 and joining Perkins at the Family Research Council as the director of the Center for Religious Liberty two months after the high court’s Deus vult.205 More recently, the Select Committee on the January 6th attack subpoenaed Klukowski, who served as something of a sidekick for Assistant Attorney General Jeffrey Clark during Trump’s attempts to subvert the 2020 election and was, among other things, “involved in drafting a letter that urged legislatures in certain states to delay certification of the election.”206
In the run-up to the 2020 election, Trump and the Institute would again join forces to push the coach’s false narrative and Crusade. Shackelford and Kennedy met with Trump in the Oval Office in January 2020 for a “religious liberty” ceremony as Trump signed new guidance for public schools on what he called the “the right to pray.”207 This was the day after the impeachment managers for Trump’s first impeachment trial were named.208 Paula White was there and Kennedy stood shoulder to shoulder with Betsy DeVos during the ceremony.209 Kennedy fawned over Trump, praising his “guts” and telling him, “you rock.”210 Trump hit all the weaponizing religious freedom high notes in his remarks and inadvertently explained the goal of undermining Line #3: “In public schools around the country, authorities are stopping students and teachers from praying, sharing their faith. . . . It is totally unacceptable.”211 Public schools should stop teachers from “sharing their faith” with a captive audience of other people’s children.
The Crusader kept Kennedy’s case bouncing up and down the courts, anything to keep it alive. The longer it was alive, the more donations it would generate, and the greater the chance Trump, McConnell, and Leo could pack the Supreme Court to get a favorable result for the Crusade. By March 2020, a full year and a half before the Institute even asked the Supreme Court to take the case, the coach and his wife sold their house in Washington and moved across the country to Florida. They called themselves “Floridians” and voted in local elections.212 That should have ended the case (page 177). The only relief the coach sought from the courts was reinstatement as coach, and a 2,800-mile commute for $4,498 a seasonal job is ludicrous. The Institute had a duty to inform the courts about Kennedy’s move and that the case was now moot.213 But you don’t kill a goose that lays golden eggs, whatever the ethics rules might say. The move was only discovered after the Supreme Court agreed to hear the case. The school district informed the justices and explained that the case was now moot. The justices ignored the mootness because, again, these justices want to take these cases. They’re eager to weaponize religious freedom and consummate the Crusade.
Kennedy, for all he claimed to be fulfilling promises to his god or doing his god’s will, didn’t coach after he moved to Florida. And when the Bremerton football teams resumed practicing in August 2022, the coach’s Florida house wasn’t listed for sale. In fact, in the few weeks before football practices were set to begin, Kennedy and his wife flew to evangelist Franklin Graham’s Alaska estate to hang out with Graham and Mike and Karen Pence for a full week.214
The case bounced around for so long that Jeff Mateer, a disgraced judicial nominee who was too conservative and anti-LGBTQ to make it through to a confirmation hearing under Trump and who had worked at First Liberty before moving to the Texas Attorney General’s office, was back at the Institute and helped argue the case. When the case finally got to the Supreme Court, after nearly seven years of milking it, the court was dramatically changed. By that time, the court had been packed and the outcome was never really in doubt. Not because the law had changed or the losing case was suddenly a winner, but only because there were enough Crusaders on the high court.
Three things stand out in all of this. First, this is the Crusade. Trump said it: “Religious liberty, hey, it’s about religious liberty. . . . It’s very unfair what they’re doing to religion in this country.”215 And he means Christianity. But this is the Crusade entering public schools. Not just defunding public schools with vouchers or neo-vouchers or trying to circumvent the lines with peer-to-peer proselytizing, but abolishing the lines altogether in the last bastion. Second, the law didn’t matter at all. This was about selling a false narrative. Like the Institute’s fallacious report on religious hostility and Trump’s constant waterfall of mendacity, there was little truth on the coach’s side of this case. There’s a reason the Institute lost at every court in five years of bouncing up and down the federal court ladder—the law wasn’t on their side. The Crusade is meant to change that law, to rewrite it. So the law is irrelevant until the Crusaders on the Supreme Court rewrite the law and impose it on the country. Third, that narrative excludes any but conservative Christians. Band members were trampled? Who cares! The religious freedom of those students pressured to pray to play? Who cares! Parents want to educate their own children about gods and religion? Tough.
Put that all together and you get a weaponized religious freedom. Religious freedom becomes a privilege that only belongs to conservative Christians. This case was pitched by the Institute and its Crusader network as “upholding Coach Kennedy’s right to live out his faith.”216 But without regard to the impact on anyone else and their rights. Kennedy wanted to exercise his faith in a way that violated the religious freedom of other people, that coerced and pressured young, impressionable children who looked up to this authority figure. These actions violated students and families’ rights, which violated Line #2, and abused government power, which violated Line #3. At every turn, the school district tried to accommodate Kennedy’s prayers, to let him pray in a way that wouldn’t abuse his power or infringe on the rights of students. He even did that for a while, but that’s not what the Crusaders have been fighting for. They don’t want religious freedom, they want Christian privilege, power for Christians, and Christian supremacy—and they want to call that religious freedom. The Crusaders on the Supreme Court obliged.
When the Supreme Court refused to hear the case for the first time in 2019 (see page 197), Alito, with Thomas, Gorsuch, and Kavanaugh joining, noted that “important unresolved factual questions would make it very difficult if not impossible” to decide the case (in the coach’s favor, he meant) and that the court does not accept cases “to decide highly fact-specific questions.”217
When the same case returned in 2022, the factual narrative was just as clear as it had been before. And, just as before, all our legal precedent and the Constitution itself dictated an answer. Rachel Laser, who runs Americans United for Separation of Church and State, summed up the argument nicely on the steps of the court just before oral argument: “Religious freedom is not the right to use your power as a public school coach to impose your beliefs on students.”218 This did not deter the uber-conservatives on the court. They simply rewrote reality and then they rewrote the law.
Throughout this book, I’ve noted that rewriting crucial facts is a theme with crusading Supreme Court justices: misrepresenting government prayers directed at citizens in the audience as for legislators, recasting earnest civil servants who protect civil rights as bigots hostile to religion, allowing cases to proceed when the ostensibly opposing sides agreed on everything, ignoring dispositive constitutional provisions because those agreeable sides said it was ok, treating a fenced-in playground as if it were public and not part of the Christian children’s ministry at a church, and a host of other lies, half-truths, and procedural misconduct.
Those factual rearrangements shrink in the shadow of Gorsuch’s magical recasting of reality in his Kennedy opinion.
In this opinion, the conservative justices lied. They lied to us and to posterity. They lied in the face of photographic evidence.
They didn’t just fall for a story the Institute sold. They lied. The appeals court warned the justices about the Institute’s deceitful narrative. The three-judge panel explained, “the facts in the record utterly belie his contention that the prayer was personal and private.”219) In a second opinion, one appeals court judge hammered his fellow judge for buying the lies. Judge Milan Smith, a George W. Bush appointee who was confirmed 93-0, wrote this when the entire appeals court dealt yet another blow to the coach’s case. The first substantive paragraph reads:
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, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.220
He added, “the reader should know the following basic truth . . . : Kennedy was never disciplined by BHS for offering silent, private prayers.”221
Smith even compared the deceitful narrative’s “unmoored claims” side-by-side with reality in a chart, something I’ve not seen in a federal court opinion.222 Another judge in that decision explained, “The actual record presented in the district court bears little resemblance to the hypothetical scenarios posited by Coach Kennedy.”223
Gorsuch begins his majority opinion, which the other uber-conservative justices joined, by fully adopting this deceitful narrative. The first two paragraphs purport to state the facts surrounding the prayers, but Gorsuch only cited Kennedy’s declaration. He ignored the photos, video, briefs, and testimony of literally everyone else. Then Gorsuch paints the school district as refusing to do even the smallest thing to accommodate Kennedy’s prayers. He cites only a letter the Institute wrote and ignores letters from the district in the record which offer those very accommodations.224 Gorsuch’s alternative facts come largely from Kennedy’s one-sided declaration and The Institute’s earliest demand letter.
Gorsuch recounted the outsiders that rushed the field and trampled students after the Institute riled them up with a media tour like this: “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.”225 That rewriting deliberately paints the district’s steps to protect students—signs, police, and robocalls—which Gorsuch happily recounts, as government overreach and overreaction.
Gorsuch also made much of the school district admitting that there was “no evidence that students have been directly coerced to pray with Kennedy.”226 Kennedy never told students “if you want to play, you have to pray” because he never had to. The question is not whether Kennedy directly coerced the students he had power over, but whether they felt pressured to join—and there was plenty of evidence of that.
One reason the “deceitful narrative” took hold in the first place is because of just how much pressure the coach exerted over the kids. The entire situation was ready-made for a conservative, white adult Christian male—the demographic the Crusade is designed to recenter in American life—to take advantage of. The people who are most directly affected by Kennedy’s abuse of power are also the targets of that abuse: the students. Their only incentives are disincentives. And the pressure to remain silent, to shut up and go along, intensified with every Fox News interview Kennedy did, every Glenn Beck Facebook post, and every Trump comment. That was the point.
Put another way, the students were coerced into prayers, but also coerced into shutting up. There were never any students who openly told their story to the camera. Those students were understandably afraid to come forward. They were not without champions. When the case was argued at the Supreme Court, members of the Bremerton clergy, clad in clerical garb, appeared to defend religious freedom—true religious freedom. They spoke out against Kennedy and in favor of the school district. Several cited Matthew 6:5–6. Representative Jamie Raskin, busy with the January 6th Select Committee, joined them on the steps to argue against the Crusaders. Rachel Laser, president of Americans United for Separation of Church and State, which represented the school district at the court, delivered a brilliant rally speech with that cutting line: “Religious freedom is not the right to use your power as a public school coach to impose your beliefs on students.”227
But those champions were not sought after by the media like the coach. And the students were traumatized. Even six years after the coach made the season about his personal religion, one former player “remain[ed] traumatized and believes additional players have declined to come forward with their stories because, like him, ‘they would rather forget about that time of their life.’”228 Kennedy “crippled [his] love for the sport of football” and his relationship with my former teammates “is forever fractured. Whatever sense of legacy, love, pride, and enjoyment we felt playing together is left behind in Joe K. and his tireless tirade to prove he is right in continuing to pray among children.”229
They felt pressured to join the prayers and pressured to stay quiet for the same reasons: Playing time, letters of recommendation, whether they’re awarded scholarships or scouted or even getting into college. For some kids, it’s not just football, it’s their future. Justice Kavanaugh, who voted to let the coach continue imposing his Christian prayers on other people’s children in the final disposition of the case, recognized this pressure during oral argument. He asked the Institute “about the player who thinks, ‘if I don’t participate in this, I won’t start next week,’ or the player who thinks, ‘if I do participate in this, I will start next week?’”230 Not just as a hypothetical, but asking the Institute, how “will you ferret that out?” in the real world “because every player’s trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera.” He added, “the suspicion by parents that the reason Johnny’s starting and you’re not is he was part of the prayer circle. And, you know, that suspicion I don’t think you can get around. That’s a real thing out there.” Kavanaugh dealt with that very real state pressure on children to perform a religious ritual by ignoring it entirely.
The Institute tried to answer that concern. Paul Clement’s answer encapsulates the callous obtuseness of the Institute’s argument. Clement likened the violation of students’ religious freedom to being a sports fan: “I mean, if—if the coach is always wearing a Packers jersey, I mean, there’s—there’s—there’s an incentive for the—for the—for the players to follow on.” An incentive, also known as pressure, but to root for a particular sports team, rather than violate their own conscience. Our Constitution doesn’t separate fandom and government, but religion and government. (Disturbingly and perhaps not coincidentally, Justice Alito used the same analogy a few weeks later during the gloating speech to the University of Notre Dame Law School’s Religious Liberty Initiative gathering in Italy. Alito asked rhetorically, “does support for a sports team for example really merit the same protection as religious devotion?”231)
Professional football players and coaches reiterated the intense nature of this pressure to the court.232 They explained the reality on the ground, what Kavanaugh seemed to understand but ignored. They pointed out that coaches are authority figures, hold the keys to athletes’ futures, and that their “sphere of influence and control often extends far beyond the field.” More importantly, this relationship can be “a breeding ground for powerful—if often subtle—religious coercion” and that, based on their years of experience, players would have felt “compelled to participate in Mr. Kennedy’s post-game prayers.”233
Neuroscientists and psychologists even explained to the justices that the coercive nature of the prayers was not determined by Kennedy’s “characterization of his actions” or “whether those prayers were well intentioned,” but rather “whether the student athletes felt coerced to participate in the prayers.”234 And “they did.” Not only did real students actually feel coerced, this is precisely what the science would predict: “Adolescents are behaviorally and neurobiologically predisposed to follow the lead of authority figures, like coaches, and similarly susceptible to pressure—even unconscious, nonexplicit pressure—to conform to their peers’ actions.”235 This is, of course, why proselytizers push kids to convert their peers (page 202). The former player told the justices that he joined the coach’s prayer circle because he was “not a person to argue with authority[.]”236
None of this coercion and pressure is a revelation to anyone who’s attended high school or has seen a teen movie. And, once upon a time before the Crusaders had successfully packed the Supreme Court itself, the justices acknowledged that “to assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is formalistic in the extreme.”237 But that was in 2000, in what was possibly the last unequivocal victory for state/church separation and Line #3 at the United States Supreme Court (see page 25). This was the case that featured a young Brett Kavanaugh filing a brief with the court that used genocidal allusions to paint those seeking to uphold Line #3 as hostile, absolutist, and seeking “the full extermination of private religious speech from the public schools.”238 “Absolutist,” “hostile,” Orwellian,” “full extermination,” “cleanse public schools”—these charged words culminate with Kavanaugh invoking Nazis and arguing that, if the justices were to decide the case in favor of the plaintiffs, Christians would be relegated “to bottom-of-the-barrel status in our society—below socialists and Nazis and Klan members and panhandlers and ideological and political advocacy groups of all stripes.”239
The families suing in that case, Santa Fe Independent School District v. Doe, were Christian—an unnamed Catholic family and an unnamed Mormon family. The families chose to remain anonymous because of “the possibility of social ostracization and violence due to militant religious attitudes.”240 This is sadly typical. It helps explain why the narrative is so one-sided. Because of the blowback, people tend not to publicly challenge government officials, especially officials in public schools, who abuse their power to promote their personal. The history is long, brutal, and violent, especially against people brave enough to take Line #3 cases to court. I’ve asked judges for protective orders to keep the identity of my clients confidential because of the potential for retribution. I explained to one court, “As this history shows, the retaliation against Establishment Clause plaintiffs—arson, assault, attacks on family, intimidation, public humiliation, proxy violence against pets, etc.—is more severe than a typical plaintiff faces.”241 Indeed, plaintiffs in these cases have had their houses firebombed, been physically assaulted, verbally attacked by elected officials, and regularly have their pets lynched.242 This is why it’s so hard to refute deceitful narratives and why former players who opposed Kennedy wish to remain anonymous to this day.
In the Santa Fe v. Doe case, the school district “apparently neither agreed with nor particularly respected” the anonymity of the students and tried to uncover their identity.243 The court threatened “the harshest possible contempt sanctions” if school employees continued their efforts “to ferret out the identities of the Plaintiffs.”244 That case, which the families won over the dissent of the court’s three most conservative members (Thomas, Scalia, and Rehnquist) included a who’s who of Crusaders: Jay Sekulow of American Center for Law & Justice (see page 109); David Cortman of Alliance Defending Freedom (page 11) (he was with ACLJ for this case then joined ADF a few years later and argued the Missouri children’s ministry case and ADF’s Hobby Lobby companion case); Paul Clement, the Solicitor General in W. Bush’s second term who argued a host of bad cases, including intervening for oral argument in the twin Ten Commandments cases in 2005 and a freelance Crusader who argued for Hobby Lobby, against marriage equality, and Coach Kennedy’s case; and Kelly Shackelford of what would become the Institute.245 Six months later, the Supreme Court asserted its supremacy by deciding the 2000 election for George W. Bush. Santa Fe v. Doe may have been a seminal moment in the early stirrings of the Crusade. All of them were back at the court for this case.246
The coercion, the pressure, the science, the experience, the words of the students themselves—none of this mattered to the conservative justices. Neither did the photographs. In her dissent, Justice Sotomayor, joined by Kagan and Breyer, included photographs to refute the Crusader lies.
Three photos of Kennedy praying with student-athletes on the field. Screenshots from Justice Sotomayor’s dissent.
The photos explode the deceitful narrative. In the first, Kennedy is lording over at least fifty students kneeling in prayer. The next is him in the middle of the mob that stormed the field, knocking over students. The last photo is the last prayer. Nothing about the photos suggest the “brief, quiet, personal” prayer that the majority dishonestly and repeatedly portrayed.247 Even without the irrefutable photographic evidence, this makes sense. Brief, quiet, personal moments of prayer don’t garner all this attention. Had these been brief, quiet, personal prayers, nobody would ever have known what was happening, no one would ever have complained, and the district would have never even considered disciplinary action. Kennedy’s prayers were mixed with team motivational speeches to students, students felt pressured into joining, and they were trumpeted on Fox News. He made it a spectacle, a show, an attraction. He intended to attract attention and participation.
In another brazen move, the majority basically said that the prayers must have been given while the coach was acting as a private citizen and not as a public school official because prayers aren’t related to his work:
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 “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message.248
Coaches don’t normally say prayers, there was no policy about saying prayers, the government doesn’t convey prayers, and the district wasn’t paying him to produce prayers, so he couldn’t have been acting as a government official; it must have been private. Even though he was in his official team uniform, had access to the field, the students, the other team, because of his position. The justices recognize Line #3—if he was saying a prayer in his official capacity as a government official that could present a problem—but decide that it’s impossible for Christian prayers to cross that line. The analysis is rigged: if it were official, then it would be unconstitutional, therefore it’s not official and thus, not unconstitutional. This isn’t a legal analysis, it’s a heads-I-win, tails-you-lose game.249 This is also why it’s useful to conceive of Line #3 as an abuse of power, an intellectual framing that exposes this absurd argument.
Up to this point, I’ve focused only on the facts. We’ll turn to the law in a moment, but it’s worth pausing to understand how dangerous and treacherous this decision is: the Crusaders on the court did not let reality get in the way of the Crusade. They willingly lied, adopting a known “deceitful narrative.” That should send chills through the entire country.
Facts don’t matter for these six justices. Reality doesn’t matter to them. And the opinion encourages Crusaders to say anything. If you lie to the Supreme Court of the United States and that lie advances the Crusade, these justices will happily adopt the fiction—even in the face of indisputable photographic evidence. The court will even let parties conceal crucial facts that moot the entire case—like moving 2,800 miles away from the job you have sued to be reinstated to—with no consequences.
If we do not live in a shared reality, there is no rule of law. But just in case, the crusading justices rewrote the law, too.
Roe v. Wade was the target in the Dobbs case. We all understood that. But the ultra-conservative majority had a target in this case as well: the Lemon test, that unavoidable piece of jargon that is embodied in Line #3. Recall that the Lemon test was precedent older (1971) and stronger (8–0) than Roe and which the court synthesized from centuries of legal precedent.
But precedent means little to this court. These justices, drunk on power, won’t be bound by the decisions of the past. And if reality won’t get in the way of the Crusade, neither will something like precedent. To borrow a line from the brilliant Strict Scrutiny podcast, “Stare decisis is for suckers.”
This case killed Lemon. The majority “overrul[ed] Lemon entirely and in all contexts,” explained Sotomayor in her dissent.250) But even here, in overruling crucial precedent, Gorsuch and his ilk were dishonest. Though they overruled Lemon, they refused to do so explicitly.
When abolishing reproductive freedom, Alito minced no words: “We hold that Roe and Casey must be overruled.”251 The closest Gorsuch came to explicitly stating that the Lemon test is overruled was saying it had already been abandoned: “The shortcomings associated with this ambitious, abstract, and ahistorical approach . . . became so apparent that this Court long ago abandoned Lemon.”252 Gorsuch “chiefly cites” the fractured, problematic opinions in the Bladensburg cross case (see chapter 12) for this claim.253
It’s tempting to chalk up this refusal to explicitly overrule Lemon up to cowardice or a desire to minimize criticism after overturning Roe. Whatever the reason, the method is troubling.
The conservative majority gave conservative lower court judges a green light to ignore any precedent. This strengthens the Fifth Circuit pipeline. It gives judges in that pipeline a shiny new Supreme Court decision to invoke whenever they want to circumvent precedent.
Here’s how it might work. In Gorsuch’s reckoning, the court didn’t overrule the Lemon test, it simply recognized that the test had been abandoned. Why was it abandoned? Well, it had been ignored and criticized. Never mind that it was applied and used to decide countless cases; some judges and justices in some opinions didn’t like it and even criticized it. A few others opted to bypass it altogether. So even if a precedent still stands, is still applied by judges, and has been around for decades, ideologues on lower courts can ignore the precedent if they can point to criticism of the precedent or perhaps judge applying some other precedent.
The more conservative and less restrained (and that is saying something) judges in Texas, Mississippi, and in the Fifth and Eleventh Circuits now have a license to ignore precedent in favor of their political beliefs.
These jurists are abandoning the rule of law in favor of conservative politics.
The Lemon test is a critical part of Line #3, but there are other decisions and precedent that protect children in schools, so the court came after Line #3 in other ways, too. Gorsuch audaciously claimed “that Mr. Kennedy has discharged his burdens is effectively undisputed” and that “the contested [religious] exercise before us does not involve leading prayers with the team or before any other captive audience.”254 He adds, again with remarkable dishonesty, “The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.”255 Gorsuch wants to rewrite what happened by ignoring the years of prayers Kennedy imposed on students, including in the locker room. By ignoring the danger and distraction Kennedy caused to the team when the Institute got involved. Instead, he’s saying that the “sole reason” Kennedy was disciplined by the district, was that these last few prayers might have violated Line #3. Not the pressure or coercion or danger to students or absences while pursuing media—just the fact that the prayers could expose the school to Line #3 liability. But Line #3 encompasses all of that. The coercion and pressure put on the students is written into the line through the hundreds of decisions that have found just that. But that wasn’t enough for Gorsuch.
This, too, is alarming. The public school did the right thing. It defended the religious freedom of children against an agent of the state who sought to use government power to foist his personal religion on others. That’s inherently coercive and an abuse of power. For the most part, Gorsuch ignored the students and their rights.
I warned earlier in the book that, in this case, the court “could declare that public school teachers, employees, and administrators have a religious freedom right to abuse government power and position to impose their religion on the children under their care.” That’s basically what happened. And by upending this precedent and Line #3, this decision intensifies the attack on our public schools (see pages 203–4).
The opinion does not yet allow for school-sponsored, school-organized prayers. Partly because the majority adopted the false narrative about personal, private prayer, there are strong remnants of Line #3 that still protect schoolchildren. But that’s where this fight is headed. Remember that every time the court opens or even cracks the door, the Crusaders bust through. Zealous teachers, coaches, and administrators across the country are emboldened by this decision. They’ll seek to impose prayers and other religious rituals in the classroom and claim religious freedom to do so. They’ll probably say that they can’t be acting in their official capacity as teachers or administrators, because such prayers would be unconstitutional if they were. Heads I win, tails you lose.
Some states will be worse than others. States, like the coach’s new home state of Florida, where the politicians are hostile to public schools and working to make the job of public school teachers impossible, will aid the Crusade. Between lowering teacher certification standards, hateful legislation like the “Don’t Say Gay” law, and rewriting the curriculum with a “Christian nationalism philosophy that was just baked into everything,” Florida is ground zero for this attack.256 As we awaited the decision, embattled Florida representative Matt Gaetz facetiously asked, “Does supporting school prayer make me a Christian Nationalist? Asking for a friend . . .”257 They are emboldened.
And we know what they want. Jerry Falwell yearned for a day when “we don’t have public schools. The churches will have taken them over and Christians will be running them.” (X-REF). In the Reagan White House in 1985, Roberts wrote a memo: “We still have an uphill battle to return prayer to schools.” (X-REF) I noted that he used the language of a Crusader: “We. Battle. Return prayer to schools.” It took almost forty years, but Roberts got much closer to realizing this goal.
America needs to get serious about defending its public schools.
As with our other cases, we must ask the same basic question. What’s the worst that would have happened? What violations of religious freedom would befall the citizenry had the court decided this case the other way? In the Maine case, taxpayers would not be subsidizing the indoctrination of children into a hateful Christian ideology. The religious freedom of every citizen would be protected and every child would have had access to a public education or its equivalent. Christians who wanted their children to receive a private Christian education from a church school would have had to pay for it with using the taxing power of the government.
In the abortion case, women and pregnant people would still have self-determination and bodily autonomy, living free from the narrow constraints of one particularly conservative brand of Christianity. Able to live by their own beliefs and choices, not the religion of another.
In the case of the coach, he wouldn’t have been able to coerce children into praying with him. He’d still have been able to pray on his own time and, due to the school’s repeated offers of accommodation, on the field in a way that didn’t pressure anyone else. He simply would not have been able to use the machinery of the state to showcase and impose those prayers on everyone. The religious freedom of schoolchildren around the country would have been protected and the court would have checked an abuse of power.
These three opinions have much in common. Brazen, dishonest, disrespectful to the legal profession, and strikingly bitter for a side that’s winning. The decisions also venerate and glorify “history and tradition” over established legal principle and fact. The opinions declare “history and tradition” to be the new guide for determining constitutional rights.
This court is turning to “history and tradition” because the conservative justices want to drag this country back to the dark ages, to a time when conservative white Christian men ruled. When their rights were the only rights that mattered. To a time when, as I said earlier, the overriding principle won’t be reality or the law or the Constitution or the three lines or even any of the legal tests unnamed in this book, but simply this: Christians win.
Specifically, conservative white Christian men win.
The legal principles embodied in the Lines set forth in this book are roadblocks on their path to Christian privilege and supremacy. Alito confessed as much in Rome. And so the Crusaders, including those on the Supreme Court, are sweeping aside principle in favor of their privilege and calling it history.
Ignoring the lines means ignoring people who are not conservative Christians. The conservative majority ignored the religious freedom of students and families who felt pressured to join his prayers at the 50-yard line. It shoved aside the religious freedom of every Maine taxpayer. Those six justices even excluded women and other people who can get pregnant from the opinion that overturned Roe v. Wade, stealing their bodily autonomy without deigning to name them. For this court, religious freedom belongs to conservative Christians—and Christians have so much “religious freedom” that they may impose their Christianity on half the population.
These exclusions mean that the decisions themselves blatantly discriminate in favor of Christians. Americans still don’t grasp that this is the goal of these cases, of these justices, of this Crusade. In response to the Maine and coach cases, pithy invocations of my friends at the Satanic Temple were popular: “I can’t wait to see TST open a school in Maine!” Or “Paging TST, looks like it’s time for post-game Baphomet rituals!” They wondered similarly about Muslims: Would taxpayers have been forced to support a Muslim school that taught students to refute Christianity with the Quran? Or would the Court have sided with a Muslim coach delivering post-game prayers to Allah at the 50-yard line? It’s almost not even worth asking—we all know.
These rejoinders are all premised on the idea that religious freedom is equal in principle. That it applies equally. That we have, as the words etched into the edifice of the Court tell us, “equal justice under law.” We are supposed to, we should. But we don’t. We didn’t in these cases. The separation of church and state has always been a check on Christian privilege and supremacy. Line #3 is one of the ways our constitution guarantees equality. Religion is not favored over non-religion and no religion is favored over another. That is why it was a central target of the Crusade.
The conservative justices don’t understand religious freedom as a universal freedom, but as a Christian privilege. They didn’t ignore the religious freedom of every taxpayer in Maine or of the students at Bremerton High School, they wrote their freedom out of existence because it wasn’t conservative Christianity.
That—and I cannot stress this enough—is the point of these cases. That is the goal of this Crusade.
And the Crusade isn’t over. The Crusaders are still bringing cases to their friends on the court. This term, the court is adjudicating another version of the gay wedding cake case, this time involving websites. It’s brought by ADF, the same Crusader as last time. And the Crusaders still have the same deep connections to the court. Senator Josh Hawley, a former clerk of Roberts’s and who was tied up in the Missouri ministry case and who taught classes to ADF fellows (pages 66–67 and 191), married Erin Hawley, another Roberts clerk who’s working for ADF to litigate that very case.258
Alito promised more victories for the Crusade in Rome. And Leonard Leo is far from done with his new multibillion-dollar war chest.
The ultraconservative supermajority on our Supreme Court is part of this Crusade. It’s the problem. It needs a solution. Because the only thing of which I am certain is this: they’re not done. These justices will not check themselves or exercise discretion. If this out-of-control court is to stop, we must stop it.
The courts, and especially the Supreme Court, were a target of the Crusade because lifetime appointments in one of the three branches offer significantly more power as they fade into irrelevance in a democracy. They were put on the court to reclaim the privilege and supremacy of a dying demographic. As I wrote in the introduction, they’re raging against the dying of their privilege. And in their rage, they’re destroying America.
- Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (Dec. 10, 2021). [↩]
- Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 142 S. Ct. 661 (Jan. 13, 2022). [↩]
- Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2320 (2021). Technically, this was the end of the 2021–22 term.[↩]
- Ardoin v. Robinson, 21-1596, granting certiorari and staying injunction (U.S. June 28, 2022). The central case is Merrill v. Milligan, 21-1086, and oral arguments kick off the 2022–23 term on Oct. 4, 2022. [↩]
- Family Ties, CBSNews.com (Dec. 12, 2020), www.cbsnews.com/news/family-ties-12-12-2000. “Eugene Scalia, is a partner in the Washington office of Gibson, Dunn & Crutcher. Another partner, Theodore B. Olson, argued Mr. Bush’s case before the Supreme Court.” Christopher Marquis, “Job of Thomas’s Wife Raises Conflict-of-Interest Questions,” New York Times (Dec. 12, 2000) nyti.ms/3dt9K57.[↩]
- Nina Totenberg, “Gorsuch Didn’t Mask Despite Sotomayor’s COVID Worries, Leading Her to Telework,” NPR, Jan. 21, 2022, n.pr/3BRD1yH. Gorsuch pushed back on this story, but “NPR stands by its reporting.”[↩]
- Justice Samuel Alito, 2022 Religious Liberty Summit, July 21, 2022, youtu.be/uci4uni608E. See Reuters, “US Supreme Court Justice Mocks Prince Harry and Boris Johnson’s Criticism of Roe v Wade Ruling,” July 28, 2022, https://bit.ly/3cJbMy7. [↩]
- See Jennifer Senior, “American Rasputin,” The Atlantic, June 6, 2022, https://bit.ly/3Qa7lu5.[↩]
- Shelby County v. Holder, 570 U.S. 529 (2013) and Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021). [↩]
- Federal Election Comm’n v. Ted Cruz for Senate, 142 S. Ct. 1638 (2022).[↩]
- U.S. Constitution, Article VI, clause 2.[↩]
- New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2156 (2022) (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion[↩]
- Kara Voght and Tim Dickinson, “SCOTUS Justices ‘Prayed With’ Her—Then Cited Her Bosses to End Roe,” Rolling Stone, July 6, 2022, https://bit.ly/3KNk8kV. [↩]
- Shurtleff was field director for New England in the John Birch Society for 26 years. See, e.g., Brian Kaylor and Beau Underwood, “The Man Behind Shurtleff v. City of Boston,” Word & Way, Jan. 12, 2022, wordandway.org/2022/01/12/the-man-behind-shurtleff-v-city-of-boston/; Mike Deehan, “Lecture to an Empty Hall: The John Birch Society Comes to the State House,” GBH News, July 1, 2015, https://bit.ly/3B9MNgX.[↩]
- Ryan Gorman, “Hate-filled Vandals Topple Washington, D.C., Ten Commandments Monument Sitting Across from the Supreme Court,” Daily Mail, Sept. 24, 2013, https://bit.ly/3QgsnHh.[↩]
- Screenshots on file with the author. Mathew Staver, Facebook, May 10, 2020, www.facebook.com/photo.php?fbid=10106177910814558&set=pb.55711535.-2207520000..&type=3.[↩]
- Peggy Nienaber, “Freedom Alive with Mat Staver,” YouTube, July 20, 2021, at 3:00, www.youtube.com/watch?v=ftk1R6ySwFM, archived at web.archive.org/web/20220708011811/https://www.youtube.com/watch?v=ftk1R6ySwFM.[↩]
- Voght and Dickinson, “SCOTUS Justices ‘Prayed With’ Her.”[↩]
- Jewel Samad, AFP photo with Getty, identifies the photo as being taken on May 26, 2009, www.gettyimages.com/detail/news-photo/reverend-rob-schenck-from-faith-and-action-an-anti-abortion-news-photo/87980180. The court granted cert in the case on Feb. 23, 2009. [↩]
- Voght and Dickinson, “SCOTUS Justices ‘Prayed With’ Her.” [↩]
- The Rolling Stone article recounts the conversation. Connie IRL, “6.27.2022 LIVE Washington DC the Supreme Court Sean Feucht Pro Life Activist & Musician,” YouTube (June 27, 2022) at 43:30, youtu.be/QU-mT-p_vu8. [↩]
- Peggy Nienaber, “Faith & Liberty Update,” Youtube, May 8, 2019, at 0:24, web.archive.org/web/20220813023636/https://www.youtube.com/watch?v=CFkpkS9CzHc&feature=youtu.be. [↩]
- Voght and Dickinson, “SCOTUS Justices ‘Prayed With’ Her”; Nienaber, “Freedom Alive with Mat Staver,” YouTube, at 3:08. [↩]
- Video claim: Nienaber, “Freedom Alive with Mat Staver,” YouTube, at 10:15, screenshots on file with the author; Mathew Staver, Facebook (Oct. 8, 2018), https://bit.ly/3qb6f6x.[↩]
- Voght and Dickinson, “SCOTUS Justices ‘Prayed With’ Her.”[↩]
- Peter S. Canellos and Josh Gerstein, “‘Operation Higher Court’: Inside the Religious Right’s Efforts to Wine and Dine Supreme Court Justices,” Politico, July 8, 2022, www.politico.com/news/2022/07/08/religious-right-supreme-court-00044739.[↩]
- Voght and Dickinson, “SCOTUS Justices ‘Prayed With’ Her.” [↩]
- Sandra Chambers, “Storming the Capital with Prayer,” Charisma, Apr. 30, 2001, https://bit.ly/3DdsXTB.[↩]
- See, e.g., Closing Arguments in Seminole County Absentee Ballots Hearing, December 7, 2000, https://www.washingtonpost.com/wp-srv/onpolitics/elections/seminolecountytext120700.htm [↩]
- Jane Mayer, “Is Ginni Thomas a Threat to the Supreme Court?,” New Yorker, Jan. 21, 2022, bit.ly/3PWIJpB. [↩]
- Emma Brown, “Ginni Thomas Pressed Wisconsin Lawmakers to Overturn Biden’s 2020 Victory,” Washington Post, Sept. 1, 2022, https://wapo.st/3QhFLeu. See also, John Eastman, “OMG, Mrs. Thomas Asked Me to Give an Update about Election Litigation to Her Group. Stop the Presses!,” Substack post (https://johneastman.substack.com/), June 16, 2022, archived at https://bit.ly/3TJHHze.[↩]
- Ibid., Brown.[↩]
- Emma Brown, “Ginni Thomas, Wife of Supreme Court Justice, Pressed Ariz. Lawmakers to Help Reverse Trump’s Loss, Emails Show,” Washington Post, May 20, 2022, www.washingtonpost.com/investigations/2022/05/20/ginni-thomas-arizona-election-emails/.[↩]
- Bob Woodward and Robert Costa, “Virginia Thomas Urged White House Chief to Pursue Unrelenting Efforts to Overturn the 2020 Election, Texts Show,” The Washington Post, Mar. 24, 2022, www.washingtonpost.com/politics/2022/03/24/virginia-thomas-mark-meadows-texts/. All quotes of the text exchange are from this article.[↩]
- See, e.g, Sami Main, “Supreme Court Justice Clarence Thomas Speaks at UF Law School,” WUFT, Sept. 21, 2012), www.wuft.org/news/2012/09/21/clarence-thomas-uf-law-school-conversation/; Jeffrey Toobin, “Partners,” New Yorker, Aug. 22, 2011, https://newyorker.com/magazine/2011/08/29/partners-jeffrey-toobin; Keith Clair, “The 3-minute Interview: Virginia Thomas,” Washington Examiner, June 17, 2010, www.washingtonexaminer.com/the-3-minute-interview-virginia-thomas; Clarence Thomas, Address Before the Federalist Society, Nov. 12, 1999, https://bit.ly/3RCMpga.[↩]
- Kevin Daley, “EXCLUSIVE: Ginni Thomas Wants to Set the Record Straight on January 6,” Washington Free Beacon, Mar. 14, 2022, freebeacon.com/courts/exclusive-ginni-thomas-sets-the-record-straight-on-january-6/.[↩]
- Justice Clarence Thomas and Leonard Leo, Gregory S. Coleman Memorial Lecture at the Federalist Society’s fourth annual Texas Chapters Conference, September 7-8, 2018, https://youtu.be/f-_5bPKuIRg?t=856 at 14:15.[↩]
- Kenneth P. Vogel and Shane Goldmacher “An Unusual $1.6 Billion Donation Bolsters Conservatives,” New York Times, Aug. 22, 2022, https://nyti.ms/3BguEhC.[↩]
- The Washington Post estimated that the Leo-affiliated groups raised $250 million between 2014 and 2017. Robert O’Harrow Jr. and Shawn Boburg, “A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation’s Courts,” Washington Post, May 21, 2019, https://wapo.st/3cTyUX9. True North Research updated those numbers through 2020. See https://bit.ly/3CZXunv.[↩]
- Emma Brown, Jon Swaine, and Michelle Boorstein, “Amy Coney Barrett Served as a ‘Handmaid’ in Christian Group People of Praise,” Washington Post, Oct. 6, 2020, wapo.st/3Moolea; Stephanie Kirchgaessner, “Revealed: Amy Coney Barrett lived in home of secretive Christian group’s co-founder,” The Guardian, Oct. 6, 2020, bit.ly/3MlqtU0.[↩]
- Stephanie Kirchgaessner, “Legal Claims Shed Light on Founder of Faith Group Tied to Amy Coney Barrett,” The Guardian, June 6, 2022, bit.ly/3QerNLA.[↩]
- Alito, 2022 Religious Liberty Summit, July 21, 2022, youtu.be/uci4uni608E. See Reuters, “US Supreme Court Justice Mocks,” July 28, 2022, https://bit.ly/3cJbMy7. [↩]
- Dahlia Lithwick and Mark Joseph Stern, “Alito’s Speech Mocking Foreign Leaders Has a Deeper, Darker Message,” Slate, July 29, 2022, https://bit.ly/3endLc1. [↩]
- Stephanie Barclay graduated from BYU law in 2011, worked for Becket Fund from 2015–20, began teaching at various law schools in 2018, and joined the ND Religious Liberty Initiative in July 2020, before clerking for Gorsuch for the 2021–22 term, while retaining the ND role. BYU, “BYU Law’s Pipeline to the U.S. Supreme Court Continues,” Mar. 27, 2019, news.byu.edu/news/byu-laws-pipeline-us-supreme-court-continues; Kevin Allen, “One ND Law Professor and One Graduate Are Clerking at the U.S. Supreme Court This Term,” University of Notre Dame, Oct. 12, 2021, https://bit.ly/3QvLxcB; Fulton v. City of Philadelphia, No. 18A118 (reply brief), becketnewsite.s3.amazonaws.com/18A118-Fulton-v-Philadelphia-Reply.pdf. Barclay is a member of the LDS church. Latter-Day Profiles, July 7, 2016, latterdayprofiles.org/stephanie-barclay/. [↩]
- Linda Greenhouse, “Alito’s Call to Arms to Secure Religious Liberty,” New York Times, Aug. 11, 2022, www.nytimes.com/2022/08/11/opinion/religion-supreme-court-alito.html.[↩]
- Alito, 2022 Religious Liberty Summit, July 21, 2022) at 13:40, youtu.be/uci4uni608E.[↩]
- Ibid. at 26:50.[↩]
- Ibid. at 11:37.[↩]
- Ibid. at 25:40.[↩]
- Ibid. at 41:13.[↩]
- Matt. 10:34–36. See also Matt. 10:21.[↩]
- Matt. 10:14–15. “If anyone will not welcome you or listen to your words, leave that home or town and shake the dust off your feet. Truly I tell you, it will be more bearable for Sodom and Gomorrah on the day of judgment than for that town.”[↩]
- Dobbs v. Jackson Women’s Health Organization, Oyez, Dec. 1, 2021, at 26:35, www.oyez.org/cases/2021/19-1392.[↩]
- Larrison Campbell, “Abortions Banned after 15 Weeks by House,” Mississippi Today, Feb. 2, 2018, mississippitoday.org/2018/02/02/house-passes-ban-abortion-15-weeks/. [↩]
- Kim Chandler and Blake Paterson, “Alabama Governor Invokes God in Banning Nearly All Abortions,” AP News, May 16, 2019, apnews.com/article/health-north-america-us-news-ap-top-news-courts-7a47ddc761dc4b72a017b0836da3a87b.[↩]
- Oklahoma Governor J. Kevin Stitt, “Governor Stitt Celebrates Nine New Pro-Life Laws with Ceremonial Bill Signing” (Sept. 21, 2021), oklahoma.gov/governor/newsroom/newsroom/2021/september/governor-stitt-celebrates-nine-new-pro-life-laws-with-ceremonial.html.[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2240 (2022).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2284 (2022).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2243 (2022).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2319 (2022) (Breyer, J., dissenting).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring).[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring).[↩]
- Emma Platoff, “By Gutting Obamacare, Judge Reed O’Connor Handed Texas a Win. It Wasn’t the First Time,” Texas Tribune, Dec. 19, 2018, www.texastribune.org/2018/12/19/reed-oconnor-federal-judge-texas-obamacare-forum-shopping-ken-paxton/.[↩]
- Michael Hall, “The Rogue Court That Paved the Way for Roe’s Demise,” Texas Monthly, Sept. 2022, www.texasmonthly.com/news-politics/fifth-circuit-court-appeals-roe-wade-scotus-supreme-abortion-rights/.[↩]
- Mark Joseph Stern, “The Trump Bench: Kyle Duncan,” Slate, Jan. 22, 2020, slate.com/news-and-politics/2020/01/the-trump-bench-kyle-duncan-the-fifth-circuit.html.[↩]
- Hall, “The Rogue Court.” [↩]
- Ibid. [↩]
- Me. Const. art. VIII, pt. 1, § 1.[↩]
- Me. Const. art. VIII, pt. 1, § 1.[↩]
- Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d 1068, 1073 (Me. 2000). [↩]
- Me. Rev. Stat. Ann. tit. 20-A, § 2951(2).[↩]
- “In making its determination whether a particular school is in compliance with Section 2951, the Department considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.” Carson v. Makin, 979 F.3d 21, 38 (1st Cir. 2020[↩]
- Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me. 1999); Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999).[↩]
- Local counsel included Linda C. Russell of Pettrucelli & Martin, LLP, in Portland, Maine, and Richard D. Komer (orally), Clint Bolick, William H. Mellor, Institute for Justice, Washington, DC, for plaintiffs. See case-law.vlex.com/vid/728-2d-127-1999-617453763. [↩]
- Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me. 1999), cert. denied, 528 U.S. 947 (1999).[↩]
- Anderson v. Town of Durham, 895 A.2d 944, 2006 Me. 39 (Me. 2006); Eulitt v. Maine Dept. of Education, 307 F. Supp. 2d 158 (D. Me. 2004). The lawyer who argued and lost these Maine state court cases for IJ argued the Montana case for IJ (chapter 14) and won.[↩]
- Carson v. Makin, 142 S. Ct. 1987, 2013 (2022) (Sotomayor, J., dissenting).[↩]
- Carson v. Makin, Supreme Court Docket 20-1088, Joint Stipulated Facts ❡❡69–70 in Joint Appendix at 69–110, www.supremecourt.gov/DocketPDF/20/20-1088/191428/20210903161128576_Joint%20Appendix.pdf. Hereinafter, “Carson v. Makin, JSF” [↩]
- Carson v. Makin, JSF ❡❡103–04.[↩]
- Carson v. Makin, JSF ❡101.[↩]
- “Our vision is for students to grow in their faith, have a positive impact in their world for Christ and actively serve in their churches and communities. We want them to experience God’s love in a personal way so that they are truly prepared for life.” Bangor Christian School website, “Mission, Vision, and Philosophy of Education,” July 15, 2022, available at web.archive.org/web/20220715104305/https://www.bangorchristian.com/mission-vision-philosophy-of-education [↩]
- Bangor Christian School website, “Mission, Vision, and Philosophy of Education.”[↩]
- Carson v. Makin, JSF ❡❡76, 78, 80, 81.[↩]
- Carson v. Makin, JSF ❡98. Martha Boone’s position and alma mater are listed on her Bangor bio: “Mrs. Boone is the Principal/Guidance Counselor. Mrs. Boone graduated in 1985 with a Bachelor of Science from Liberty University. Her favorite Bible verse is Proverbs 3:5–6. Outside of BCS, she loves to read. When asked, ‘Why BCS’ Mrs. Boone responded, “I can pray with my students and help them see the world from God’s perspective.” Bangor Christian School website, “Faculty & Staff,” www.bangorchristian.com/facultystaff?staff=274.[↩]
- Bangor Christian School website, “Objectives in Education,” under the “Academics” tab, July 15, 2022, available at web.archive.org/web/20220715104948/https://www.bangorchristian.com/objectives-in-education. The rest are similar: “instill . . . a love for God and a personal sense of responsibility to be all God wants,” “be successful as measured by God’s standards,” “develop . . . a sense of responsibility as a Christian citizen, “develop . . . a Christian world view and Christian philosophy of life.”[↩]
- Carson v. Makin, JSF ❡124.[↩]
- Carson v. Makin, JSF ❡❡133–38.[↩]
- Carson v. Makin, JSF ❡179.[↩]
- Carson v. Makin, JSF ❡169.[↩]
- Carson v. Makin, JSF ❡164.[↩]
- Carson v. Makin, JSF ❡162.[↩]
- Carson v. Makin, JSF ❡❡143–44.[↩]
- Temple Academy website, “Core Values,” under the “About Us,” tab. After the mission statement, the school lists objectives “For the Spiritual and Moral Growth of Students.” Site archived on July 16, web.archive.org/save/https://templeacademy.org/page/3168.[↩]
- Temple Academy website, “Core Values” page under the “About Us,” tab. After the mission statement, the school lists objectives “For the Spiritual and Moral Growth of Students” and then “For the Academic Development of Students.” Site archived on July 16, https://web.archive.org/save/https://templeacademy.org/page/3168 [↩]
- Carson v. Makin, JSF ❡147.[↩]
- Carson v. Makin, JSF ❡❡127–28, 180–84.[↩]
- Carson v. Makin, JSF ❡178.[↩]
- Carson v. Makin, JSF ❡❡157–61.[↩]
- Carson v. Makin, JSF ❡❡153, 155.[↩]
- See, e.g., Carson v. Makin, JSF ❡❡125–26.[↩]
- Carson v. Makin, JSF ❡❡92–93.[↩]
- Carson v. Makin, JSF ❡102.[↩]
- Carson v. Makin, JSF ❡116.[↩]
- Carson v. Makin, 142 S. Ct. at 1998.[↩]
- Carson v. Makin, 142 S. Ct. at 1998.[↩]
- Carson v. Makin, 142 S. Ct. at 2001.[↩]
- Carson v. Makin, 142 S. Ct. at 2005 (Breyer, J., dissenting).[↩]
- We Dissent podcast. “Bonus Episode! Carson v. Makin Update,” July 28, 2022, beginning at 25:20. Full disclosure: Elizabeth Cavell and I are married.[↩]
- David Sharp, “Religious schools shun state funding despite Maine victory,” AP, August 30, 2022, https://bit.ly/3QcX7cg [↩]
- “The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation . . . a ‘State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” Carson v. Makin, 142 S. Ct. at 2000 (citing Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020[↩]
- Carson v. Makin, 142 S. Ct. 1987, 1998 (2022).[↩]
- Carson v. Makin, 142 S. Ct. at 2014–15 (Sotomayor, J., dissenting)(citations omitted).[↩]
- “Crowd Prays with Coach as He Defies School District,” Seattle Times, (Oct. 16, 2015), www.seattletimes.com/seattle-news/education/scores-join-coach-in-postgame-prayer/.[↩]
- Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 816 (9th Cir. 2017).[↩]
- Brief amici curiae of Bremerton Community Members—BHS Football Team Alumnus, Parents, Community Leaders, and Educators, Mar. 31, 2022, https://bit.ly/3cKr1qy, “Community brief,” at 16.[↩]
- Deposition of Bremerton High Principal John Polm. Bremerton Joint Appendix at 234.[↩]
- Affidavit of Bremerton High Athletic Director Jeff Barton. Bremerton Joint Appendix at 358–59.[↩]
- Declaration of Superintendent Aaron Leavell. Bremerton Joint Appendix at 349–57, at 356.[↩]
- Brief amici curiae of Bremerton Community Members, “Community brief.”[↩]
- Community brief at 15.[↩]
- Community brief at 15–16. “The only time a choice was given on the matter of praying with . . . Kennedy at the end of football games was at a team meeting Thursday the day before the game where the media attended and fans stormed the field.” Prior to that conversation, the “prayer circle . . . was something that was expected.”[↩]
- Declarations of Superintendent Aaron Leavell. Bremerton Joint Appendix at 179–82, at 181; and 349–57, at 356. [↩]
- Borden v. Sch. Dist. of E. Brunswick, 555 U.S. 1212 (2009).[↩]
- Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 165 (5th Cir. 1993).[↩]
- Shackelford appears on the brief: Doe v. Duncanville Independent School Dist., No. 91-1988 (Brief of Appellants-Intervenors) (July 6, 1992). In a staff member Q&A in Rutherford magazine, the in-house newsletter for the organization, Shackelford is quoted: “I want to argue on behalf of righteousness.” Quoted in Jonathan Moore, “Suing for America’s Soul: John Whitehead, the Rutherford Institute, and Conservative Christians in the Courts,” Eerdmans Publishing Company (2007), at 128–29, n. 92. Brad Dacus, who runs Pacific Justice Institute, is also featured in that Q&A. Dacus lost out when we litigated the Chino Valley School Board prayer case. Shackelford seems to have been running the Rutherford Institute of Texas at the time, see Prabook, “Kelly J. Shackelford” (“S.W. regional coordinator, The Rutherford Institute, Dallas, since 1992,”) web.archive.org/web/20220813180421/https://prabook.com/web/kelly.shackelford/3332308.[↩]
- John W. Whitehead, The Separation Illusion: A Lawyer Examines the First Amendment. Fenton, MI: Mott Media, 1977. Rutherford litigated for Paula Jones against the Clintons, which Ken Starr took over. . . . It’s all very incestuous and red string.[↩]
- The school district asked him to stop praying in a way that pressured students in early September 2015. He ignored that request for the Sept. 11 and Sept. 15 games. On Sept. 17, the superintendent sent him a formal letter pledging that he was “committed to honoring your rights and continuing your outstanding contributions to the BHS football program, while also ensuring that the District is not exposed to liability because we have inadvertently violated the rights of students or other community members. I am confident that we share these important goals, and can work together to achieve them going forward.” Kennedy seemed to agree and stopped praying with the students after that letter. Bremerton Joint Appendix at 40–45, at 45.[↩]
- Drew Mikkelsen and KING 5 News, “Bremerton HS Coach Doesn’t Pray, But Speaks after Game,” ABC 10, Sept. 19, 2015, www.abc10.com/article/news/local/bremerton-hs-coach-doesnt-pray-but-speaks-after-game/281-140119530.[↩]
- Email Chain Between A. Leavell and J. Kennedy re: Follow-up on school policy in Bremerton Joint Appendix at 58. That email was sent on October 6, 2015. [↩]
- Ibid. [↩]
- “Kennedy’s Religious Beliefs Require Him to Pray on the Actual Field Where the Game Was Played.” Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 816 (9th Cir. 2017[↩]
- Todd Starnes, “EXCLSUIVE: Football Coach Says He Will Defy School’s Prayer Ban,” Fox News, Oct. 14, 2015, https://www.foxnews.com/opinion/exclusive-football-coach-says-he-will-defy-schools-prayer-ban [↩]
- Kennedy v. Bremerton Joint Appendix at 71–72, www.supremecourt.gov/DocketPDF/21/21-418/214754/20220223131524547_2022-02-23%20FINAL%20Kennedy%20Joint%20Appendix.pdf. Oct. 14 Letter can be found in the Joint Appendix, pp. 62–72, at 71–72.[↩]
- Kennedy v. Bremerton Joint Appendix at 74.[↩]
- Steve Kiggins, “‘I’m Just Going to Do My Prayer,’ After-Game Prayers Could Cost Bremerton Football Coach His Job,” Fox 13 Seattle, Oct. 14, 2015, https://bit.ly/3AM6UR2.[↩]
- “Coach Under Investigation for Post-Game Prayer Tradition,” Fox News, Oct. 15, 2015, video.foxnews.com/v/4559381950001?playlist_id=930909787001#sp=show-clips.[↩]
- Starnes, “EXCLUSIVE,” Fox News, Oct. 14, 2015.[↩]
- Avianne Tan, “HS Football Coach Vows to Continue Prayers Over Objections,” ABC News, Oct. 15, 2015, abcnews.go.com/US/hs-football-coach-vows-continue-prayers-objections/story?id=34495965; First Liberty Institute, “Coach Joe Kennedy Interview on Good Morning America,” YouTube, Dec. 16, 2015, www.youtube.com/watch?v=NKlMAf2qBvY.[↩]
- See, e.g., Glenn Beck, Facebook, Oct. 17, 2015, www.facebook.com/GlennBeck/posts/10153704252983188?. He posted that video of the prayer with “Amen!” Screenshot on file with author. He would repeatedly post about it in the years after and interview Kennedy and Institute lawyers.[↩]
- Jim Schubert, “Could This Football Coach be Fired for Praying After Games?” PureFlix Insider, Sept. 17, 2015, insider.pureflix.com/lifestyle/could-football-coach-be-fired-for-praying-after-games.[↩]
- Lorie Johnson, “High School Coach Stands Ground on Post-Game Prayer,” CBN, Oct. 16, 2015, www1.cbn.com/cbnnews/us/2015/october/high-school-coach-stands-ground-on-post-game-prayer. [↩]
- See Sherwood Pictures, sherwoodbaptist.net/ministries/sherwood-pictures/.[↩]
- The Kendrick Brothers Facebook page, “We stand with Coach Joe Kennedy to PRAY!,” Oct. 15, 2015, fb.watch/ewZ73EBIr6/. [↩]
- Kendrick Brothers Facebook page; Michelle Vu, “Ga. Church’s Freedom Fest Draws Record Crowd,” Christian Post, July 5, 2010, https://www.christianpost.com/news/ga-churchs-freedom-fest-draws-historic-crowd-45795/print.html (noting height of 110-ft.-tall cross, visible from the field where Facing the Giants was filmed).[↩]
- Kendrick Brothers Facebook page. [↩]
- Kennedy v. Bremerton Joint Appendix, 189–90.[↩]
- Declaration of A. Leavell in Support of Motion for Summary Judgment, Kennedy v. Bremerton Sch. Dist., No. 16-cv-05694 (W.D. Wash. Nov. 13, 2019) in Bremerton Joint Appendix at 351. [↩]
- Chris Tucker, “Satanists’ Presence Riles Up Crowd at Bremerton Football Game,” Kitsap Daily News, Oct. 30, 2015, https://www.kitsapdailynews.com/news/satanists-presence-riles-up-crowd-at-bremerton-football-game/. [↩]
- Ibid. [↩]
- Declaration of N. Gilliam, Bremerton Joint Appendix 345–48, at 346.[↩]
- The rallies were popular by July 2015. See, e.g., Katie Sanders, “Rachel Maddow Says Donald Trump Exaggerated His Crowd in Phoenix,” Politifact, July 15, 2015, www.politifact.com/factchecks/2015/jul/15/rachel-maddow/rachel-maddow-says-donald-trump-exaggerated-his-cr/. [↩]
- Kiggins, “‘I’m Just Going to Do My Prayer,’ https://bit.ly/3AM6UR2 at 1:57–1:59.[↩]
- KIRO 7 News, Facebook, “‘Amazing Grace,’ Support at Bremerton Football Game,” Sept. 19, 2015, at 1:05 https://fb.watch/ewZKjPd1Cj/.[↩]
- Chris Tucker, “Satanists’ presence riles up crowd at Bremerton football game,” Kitsap Daily News (October 30, 2015) at https://www.kitsapdailynews.com/news/satanists-presence-riles-up-crowd-at-bremerton-football-game/. [↩]
- Declaration of N. Gilliam, Bremerton Joint Appendix 345–48, at 346.[↩]
- “Because of the attention the issue was receiving and because of the experience of having fans, strangers, and media rushing on to the field after a game to where Mr. Kennedy was going to pray, I became concerned about the safety of the players who were in my care. I also noted that students who were not directly in my care, such as cheerleaders and bandmembers, were also in an unsafe situation. Eventually, I became concerned for my own safety. One of the assistant football coaches was also a police officer and, as we headed down to the field for one game, I obliquely asked him what he thought about whether we could be shot from the crowd. Right around that point, I decided that I would resign from my coaching position, although I did not do so until we completed the season. I consider it a great personal loss that I had to withdraw from the program and student-athletes I had been devoted to for eleven years.” Bremerton Joint Appendix at 347.[↩]
- The district court described it like this: “he was surrounded by cameras and joined by a group of players, coaches, and even a state representative (the BHS players were busy singing the school’s fight song at the time).” Kennedy v. Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1230 (W.D. Wash. 2020).[↩]
- Community brief at 2, https://bit.ly/3cKr1qy. [↩]
- Bremerton Joint Appendix at 181, 347, 354.[↩]
- Kennedy v. Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1230 (W.D. Wash. 2020). The state legislator is in the khaki coat in this pic: https://bit.ly/3KNl4pw. Here too: www.seattletimes.com/seattle-news/education/scores-join-coach-in-postgame-prayer/. [↩]
- https://usatodayhss.com/2015/rival-players-gather-to-support-bremerton-wash-assistant-coach-during-postgame-prayer [↩]
- Community brief at 15–16.[↩]
- Declaration of A. Leavell in Opposition to Motion for Preliminary Injunction, Kennedy v. Bremerton Sch. Dist., No. 16-cv-05694 (W.D. Wash. Sept. 9, 2016) in Bremerton Joint Appendix at 181. See also Email Chain Between A. Leavell and D. Rubie re: Update (Oct. 27, 2015), Id. at 101.[↩]
- Christine Clarridge, “Praying Coach, Satanists Turn Out for Football Game,” Seattle Times, Oct. 30, 2015, www.yakimaherald.com/news/northwest/praying-coach-satanists-turn-out-for-football-game/article_d5e266de-7f19-11e5-bc59-07425d6c58a3.html.[↩]
- Transcript Excerpts From Deposition of J. Kennedy (Aug. 9, 2019) in Bremerton Joint Appendix 261–344, at 303.[↩]
- Letter from A. Leavell to J. Kennedy (Oct. 23, 2015), in Bremerton Joint Appendix 90–95, at 93.[↩]
- Transcript Excerpts from Deposition of J. Kennedy (Aug. 9, 2019) in Bremerton Joint Appendix 261–344, at 303.[↩]
- Letter from A. Leavell to J. Kennedy (Oct. 23, 2015), in Bremerton Joint Appendix 90–95, at 93–94.[↩]
- Ibid., at 93–94.[↩]
- Kennedy v. Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1231 (W.D. Wash. 2020).[↩]
- Rep. Jesse Lee Young, Twitter, twitter.com/repjesseyoung.[↩]
- Chris Henry, “Bill Introduced to Allow Coaches to Take Part in Game Prayer,” Kitsap Sun, Jan. 26, 2017, www.kitsapsun.com/story/news/local/2017/01/26/bill-introduced-allow-coaches-take-part-game-prayer/97104104/.[↩]
- Patriots Informed, “INSIGHT ON COACH JOE KENNEDY’S BATTLE!,”Bit Chute, July 4, 2022, www.bitchute.com/video/MbqLcbKANtCZ/.[↩]
- Letter from A. Leavell to J. Kennedy (Oct. 28, 2015), Bremerton Joint Appendix 102–03 at 103.[↩]
- Declaration of G. Steedman in Opposition to Motion for Preliminary Injunction, Kennedy v. Bremerton Sch. Dist., No. 16-cv-05694 (W.D. Wash. Sept. 9, 2016), Bremerton Joint Appendix 176–78.[↩]
- See, e.g., First Liberty, “Coach Joe Kennedy,” firstliberty.org/coachkennedy-case-timeline/ (“High school football Coach Joe Kennedy was fired for taking a knee and offering a brief, quiet prayer after football games.”).[↩]
- “High School Coach Under Fire for Post-Game Prayer,” The O’Reilly Factor, Fox News, Nov. 3, 2015, youtu.be/tHHfOANOopM.[↩]
- Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 820 (9th Cir. 2017).[↩]
- October 27, 2015 letter, archived letter text available at web.archive.org/web/20151031065239/http://forbes.house.gov/news/documentsingle.aspx?DocumentID=398686; PDF available at web.archive.org/web/20151106034159/http://forbes.house.gov/uploadedfiles/forbes-lankford_bremerton_coach_kennedy_member_letter_10272015.pdf.[↩]
- Trump tweeted this on Oct. 31, 2015. Archived copy available at web.archive.org/web/20160623003204/https://twitter.com/realdonaldtrump/status/660536151225315328.[↩]
- According to Open Secrets, which tracks political money, the organization raised and spent about $100,000 for the 2016 cycle and maybe another $5,000 in 2018. See OpenSecrets, “Retired American Warriors PAC,” www.opensecrets.org/political-action-committees-pacs/retired-american-warriors/C00623389/donors/2016.[↩]
- Richard Cooper, “General Casts War in Religious Terms,” LA Times, Oct. 16, 2003, www.latimes.com/archives/la-xpm-2003-oct-16-na-general16-story.html.[↩]
- “Lieutenant General William G. ‘Jerry’ Boykin (Ret.),” Southern Poverty Law Center, www.splcenter.org/fighting-hate/extremist-files/individual/lieutenant-general-william-g-jerry-boykin-ret.[↩]
- At some point, FRC handed off all the work to First Liberty. But from conception and at least up through the 2014 edition, this report was a joint project listing both groups on the first page. See, e.g., the FRC website and 2014 edition at web.archive.org/web/20150406190512/https://downloads.frc.org/EF/EF12H29.pdf.[↩]
- Andrew L. Seidel and Ryan D. Jayne, “Unreliable,” Freedom From Religion Foundation, Oct. 2017, ffrf.org/images/FirstLibertyappendixFINAL.pdf.[↩]
- First Liberty Institute, “Undeniable,” 2017 ed. (hereafter “2017 edition”) at 81 (“Clinton said that she favored a president ‘who will pray with you, and for you’ while walking ‘humbly with our God.’ The FFRF reacted negatively”).[↩]
- 2017 edition at 117 (“[A]theist groups like the Freedom From Religion Foundation criticized the bill, and [Louisiana Representative] Carmody scrapped the plan before it could go to a vote.”). [↩]
- Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).[↩]
- First Liberty Institute, “Undeniable,” 2012 edition at 74; 2013 edition at 145; 2014 edition at 280; 2016 edition at 286; 2017 edition at 321.[↩]
- First Liberty Institute, “Why Americans Should Focus on Court Victories in a Heated Election Year,” July 15, 2016, web.archive.org/web/20210326045237/https://firstliberty.org/news/why-americans-should-focus-on-court-victories-in-a-heated-election-year/.[↩]
- Rachel Alexander, “Stunning 1,285 Attacks on Religion in US in 2015, 100 Percent Increase Since 2013,” The Stream, Feb. 27, 2016, stream.org/stunning-1285-attacks-religion-u-s-2015-100-percent-increase-since-2013/.[↩]
- See, e.g., First Liberty Institute, “Covid-19: First Liberty’s Response,” firstliberty.org/covid-19-protect-service-members/; First Liberty Institute, “Religious Liberty Law Firm: Chaplain Prayers Are Allowed On Military Base” Mar. 14, 2017, https://prn.to/3eqRUQI; Samuel Smith, “Chaplains Fire Back After Secularists Demand Ban on Prayer at Military Ceremonies,” Christian Post, Mar. 15, 2017, www.christianpost.com/news/chaplains-fire-back-secularists-demand-ban-prayer-military-ceremonies.html; Caleb Parke, “Navy Bans Troops from Indoor Religious Services but Permits Protests and House Parties, Law Firm Says,” Fox News, June 29, 2020, www.foxnews.com/us/navy-church-service-coronavirus-troops. The Chaplain Alliance for Religious Liberty filed amicus briefs at the cert and merits stages. [↩]
- The cases mentioned involved: Joe Lawhorn, see firstliberty.org/cases/lawhorn/; Wes Modder, see firstliberty.org/cases/chaplainmodder/; Phil Monk, see firstliberty.org/cases/phillip-monk/; Oscar Rodriguez, see firstliberty.org/cases/oscar-rodriguez; and Monifa Sterling, see firstliberty.org/cases/sterling.[↩]
- Daniel White, “Read Donald Trump’s Remarks to a Veterans Group,” Time, Oct. 3, 2016, time.com/4517279/trump-veterans-ptsd-transcript/ (transcript); “FULL Speech: Donald Trump Speaks at Retired American Warriors PAC Event 10/3/16,” Golden State Times, YouTube, Oct. 3, 2016, youtu.be/HEEAdbLeS0k (video) (Trump’s answer begins at 39:35. The question begins at 37:10).[↩]
- Associated Press, “Trump: ‘Horrible’ that Bremerton Coach Lost Job over On-field Prayers,” Oct. 3, 2016, www.seattletimes.com/seattle-news/politics/trump-horrible-that-bremerton-coach-lost-job-over-on-field-prayers/.[↩]
- The speech was on Monday, Oct. 3, 2016. On Friday, Oct. 7, 2016, the Washington Post published the Access Hollywood tape. [↩]
- Politico Influence, “More Lobbyists on the Transition,” Politico, Nov. 11, 2016, www.politico.com/tipsheets/politico-influence/2016/11/more-lobbyists-on-the-transition-217372; see also First Liberty Institute, “Liberty Institute Adds Noted Attorney, Constitutional Expert, and Author Ken Klukowski to Legal Team,” Aug. 27, 2015, firstliberty.org/news/liberty-institute-adds-noted-attorney-constitutional-expert-and-author-ken-klukowski-to-legal-team/.[↩]
- See, e.g., Breitbart News, “Klukowski: America’s Written Constitution in 1787 Was Revolutionary,” July 3, 2016, www.breitbart.com/radio/2016/07/03/klukowski-americas-written-constitution-1787-revolutionary/; Family Research Council, “Retired Army Officer, Lawyer/Journalist Join Family Research Council Policy Staff,” June 28, 2010, www.prnewswire.com/news-releases/retired-army-officer-lawyerjournalist-join-family-research-council-policy-staff-97330744.html. [↩]
- Select Committee to Investigate the January 6th Attack on the United States Capitol, “SELECT COMMITTEE SUBPOENAS FORMER OFFICIALS WITH CLOSE TIES TO THE FORMER PRESIDENT,” Nov. 9, 2021, january6th.house.gov/news/press-releases/select-committee-subpoenas-former-officials-close-ties-former-president.[↩]
- First Liberty Institute, “First Liberty Institute Celebrates Major Religious Liberty Announcement at the White House,” Jan. 16, 2020, web.archive.org/web/20220728103721/https://firstliberty.org/media/fli-celebrates-religious-liberty-announcement/.[↩]
- C-SPAN, “Announcement of Impeachment Managers,” Jan. 15, 2020, www.c-span.org/video/?468170-1/announcement-impeachment-managers.[↩]
- Maegan Vazquez, “Trump Administration Updates Public School Prayer Guidance on National Religious Freedom Day,” CNN, Jan. 16, 2020, www.cnn.com/2020/01/16/politics/school-prayer-religious-freedom-trump-administration-update/index.html. [↩]
- C-SPAN, “President Trump Remarks on Constitutional Prayer in Schools,” Jan. 16, 2020, at 16:38, www.c-span.org/video/?468229-1/president-trump-lev-parnas; News 19 WLTX, “Right to Pray in Public Schools President Trump announcement: Full Video,” YouTube, Jan. 16, 2020, at 15:28, youtu.be/FvS1ShJrs6o?t=931.[↩]
- Moriah Balingit and Ariana Eunjung Cha, “Trump Administration Moves to Protect Prayer in Public Schools and Federal Funds for Religious Organizations,” Washington Post, Jan. 16, 2020, www.washingtonpost.com/education/2020/01/16/trump-administration-moves-protect-prayer-public-schools-federal-funds-religious-organizations/.[↩]
- See Suggestion of Mootness of Bremerton School District, filed (Feb. 18, 2022), https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/.[↩]
- “It is the duty of counsel to bring to the federal tribunal’s attention, ‘without delay,’ facts that may raise a question of mootness,” Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).[↩]
- Coach Joe Kennedy, Facebook, Aug. 9, 2022), https://bit.ly/3cJbyY3; Joe Kennedy, Facebook, Aug. 15, 2022, https://bit.ly/3QhBsQ7; Franklin Graham, Facebook, Aug. 15, 2022, https://bit.ly/3Qatybm.[↩]
- White, “Read Donald Trump’s Remarks,” Time, Oct. 3, 2016; “FULL Speech: Donald Trump . . . PAC Event 10/3/16,” Golden State Times, YouTube (see note 192). [↩]
- Sen. James Lankford, “Lankford, Hartzler Stand with Coach Kennedy.” Mar. 2, 2022, www.lankford.senate.gov/news/press-releases/lankford-hartzler-stand-with-coach-kennedy.[↩]
- Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 635–36 (2019).[↩]
- Rally outside the Supreme Court on April 25, 2022. See Americans United for Separation of Church and State, “AU and Bremerton Clergy Defend TRUE Religious Freedom at the Supreme Court,” YouTube, Apr. 25, 2022, at 4:26, youtu.be/lHX7JwjnH20.[↩]
- Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1017 (9th Cir. 2021[↩]
- Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 911–12 (9th Cir. 2021) (Judge Smith concurring in denial of en banc review).[↩]
- Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 912 (9th Cir. 2021) (emphasis in original).[↩]
- Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 917–20 (9th Cir. 2021).[↩]
- Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 930 (9th Cir. 2021) (Judge Christen concurring in denial of en banc review).[↩]
- See, e.g., “The District acknowledged. . . .Yet instead of accommodating Mr. Kennedy’s request to offer a brief prayer on the field while students were busy with other activities—whether heading to the locker room, boarding the bus, or perhaps singing the school fight song- the District issued an ultimatum.” Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2418 (2022). And preceding paragraph, citing Letter from H. Sasser to A. Leavell re: Request for Coach J. Kennedy to Continue Post-Game Prayer (Oct. 14, 2015) in Bremerton Joint Appendix at 62–72.[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2418 (2022).[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2419 (2022).[↩]
- Americans United for Separation of Church and State, “AU and Bremerton Clergy Defend TRUE Religious Freedom at the Supreme Court,” YouTube, Apr. 25, 2022, at 4:26, youtu.be/lHX7JwjnH20.[↩]
- Brief amici curiae of Bremerton Community Members—BHS Football Team Alumnus, Parents, Community Leaders, and Educators, Mar. 31, 2022, at 19, https://bit.ly/3cKr1qy (brackets in original)(clarifying brackets accepted and removed). [↩]
- Ibid. [↩]
- Oyez, “Kennedy v. Bremerton School District” (oral argument), Apr. 25, 2022, beginning at 44:22, www.oyez.org/cases/2021/21-418.[↩]
- Notre Dame Law School, “2022 Religious Liberty Summit: U.S. Supreme Court Justice Samuel Alito,” YouTube, July 28, 2022, at 14:45, youtu.be/uci4uni608E.[↩]
- Brief of Former Professional Football Players Obafemi D. Ayanbadejo Sr., Christopher J. Kluwe, and Frank T. Lambert, and various collegiate athletes and coaches as amici curiae in support of Respondent (hereinafter “Professional players brief”), www.supremecourt.gov/DocketPDF/21/21-418/220003/20220401114832974_220311a%20Amicus%20Brief%20for%20e-filing.pdf.[↩]
- Professional players brief at 18.[↩]
- Brief for Psychology and Neuroscience Scholars as amici curiae in support of Respondent (hereinafter “Neuroscience brief”), www.supremecourt.gov/DocketPDF/21/21-418/220096/20220401164618912_2022%2003%2031%20Kennedy%20Amicus%20Brief.pdf.[↩]
- Neuroscience brief at 5–6.[↩]
- Community brief at 15.[↩]
- Santa Fe Independent School District v. Doe, 530 U.S. 290, 311 (2000) (internal quotations removed).[↩]
- Andrew L. Seidel, “How Kavanaugh Will Use Religion to Turn Back the Clock,” Think Progress, July 10, 2018, archive.thinkprogress.org/alarming-role-religion-brett-kavanaugh-judicial-opinions-1b3b3e6e8d35/.[↩]
- Doe v. Santa Fe Independent School Dist., 933 F. Supp. 647, 651 (S.D. Tex. 1996).[↩]
- FFRF v. Chino Valley Unified Sch. Dist., 5:14-cv-02336-JGB-DTB (Plaintiffs’ motion to proceed under pseudonyms and for protective order), at 12, ffrf.org/images/27MotionforProtectiveOrderandpseudonymswithbrief.pdf.[↩]
- Santa Fe Independent School District v. Doe, 530 U.S. 290, 294 n.1 (2000).[↩]
- Casetext, “Santa Fe Independent School District v. Doe,” casetext.com/case/santa-fe-independent-school-dist-v-doe. Clement also argued Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2019), and other cases that have set American democracy back decades, such as Rucho v. Common Cause (2018); and Hein v. Freedom From Religion Foundation, Inc. (2006). [↩]
- Clement argued the case for the Institute. Shackelford is obvious. Cortman: Kennedy v. Bremerton Sch. Dist., No. 21-418, Amicus brief for Kirk Cousins, et al., https://bit.ly/3AMNxHs. Sekulow: Kennedy v. Bremerton Sch. Dist., No. 21-418, Amicus brief of the American Center for Law and Justice, https://bit.ly/3B9wrVA.[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2433 (2022).[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424 (2022).[↩]
- This is so brazenly one-sided that the Institute’s lawyer, Paul Clement, and Justice Thomas couldn’t converse about it during oral argument without talking circles around each other.
THOMAS: Well, we know it’s not a part of his job, especially since the School District didn’t know anything about it initially and it objected to it. So it can’t be a part of his job.
CLEMENT: Well, that’s music to my ears, Justice Thomas. And I would say, even beyond that, we know it’s not part of his job duties for at least two other reasons. First of all, his job duty was not some all-encompassing responsibility for the players after the final whistle blew because the record is clear that he was able to have a private conversation, greet a spouse, and do things like that—
THOMAS: But how could you make a free exercise claim and say it’s a part of his job?
CLEMENT: We’re not. So we’re—we’re saying this isn’t part of his job, so it’s private speech.
Oyez, “Kennedy v. Bremerton School District” (oral argument) (Apr. 25, 2022), beginning at 4:24, www.oyez.org/cases/2021/21-418.[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2449 (2022[↩]
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022).[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (2022) (internal quotations removed and alterations accepted).[↩]
- According to Justice Sotomayor, “The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn., 588 U.S. (2019) to support this contention.” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2449 (2022).[↩]
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2422 (2022).[↩]
- Andrew L. Seidel, “No More Pencils, No More Books: The Ultimate Goal of All Those Anti-Education Bills That Nobody’s Talking About,” Religion Dispatches, Jan. 27, 2022, https://bit.ly/3THTRbF; Ana Ceballos, Sommer Brugal, “Teachers Alarmed by State’s Infusing Religion, Downplaying Race in Civics Training,” Miami Herald, June 30, 2022, www.miamiherald.com/news/local/education/article262941378.html.[↩]
- Rep. Matt Gaetz, Twitter, July 26, 2022, web.archive.org/web/20220727105111/https://twitter.com/RepMattGaetz/status/1552000258284179456. He tweeted the day before the opinion was released. [↩]
- 303 Creative LLC v. Elenis, No. 21-476 (petition for writ of certiorari) (Sept., 2021) (Erin M. Hawley, counsel), https://bit.ly/3TGxymV.[↩]