“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

 

Seven Trump judges on the Ninth Circuit (Ryan Nelson, Bridget Bade, Daniel Collins, Kenneth Lee, Danielle Forrest (prev. Hunsaker), Patrick Bumatay, and Lawrence VanDyke) wrote or joined dissents and other opinions that objected to the full court’s decision not to reconsider a panel ruling upholding a school board decision not to authorize a football coach to lead students and others in public prayer right after football games. Several opinions suggested that the Supreme Court should now take up the case and again restrict existing church-state protections that help safeguard religious liberty. The July 2021 decision is in Kennedy v Bremerton Sch Dist.

For several years, former Bremerton public high school football coach Joseph Kennedy, with the help of religious right organizations, has fought to promote staff-led public school prayer. Specifically, although the parties have disputed the facts, Judge Milan Smith, who was nominated by President George W Bush, explained that Kennedy sought to and did lead students in public prayer at the 50-yard line immediately after high school football games on school property. As Smith wrote, Kennedy was disciplined “only after BSD [Bremerton School District] tried in vain to reach an accommodation with him” and, pursuant to a letter from his lawyers and tv and newspaper advertising, he actually did lead such a public prayer “immediately” after the next game following his lawyers’ letter, “surrounded by players” from both teams, parents, and media.

Kennedy was suspended and after the season ended, BSD decided not to rehire him, so he filed suit in federal court claiming that BSD acted in violation of his First Amendment rights. A district court and the Ninth Circuit ruled against him, and the Supreme Court decided not to review the case in 2019, although Justices Alito, Thomas and Trump justices Gorsuch and Kavanaugh issued a statement indicating that they found the decision ”troubling” and suggesting further factual findings by the courts below on the reasons for Kennedy’s suspension.

Further factual findings were made by the district court, including a finding that the “sole reason” that BSD suspended Kennedy was the concern that they would be liable under the First Amendment for authorizing him to lead what would be likely perceived as school-sponsored public prayer. This was in accord with the Supreme Court’s 2000 decision in the Santa Fe case, which ruled that a school district policy of  permitting student-led public prayer at football games violated the Establishment Clause because it  involved “both perceived and actual government endorsement” of public prayer “on government property at government-sponsored school-related events.”

A unanimous Ninth Circuit panel again affirmed the district court decision and the full court denied rehearing, but a number of judges, including the seven Trump judges above, wrote or joined dissents or other critical statements. Several suggested that the facts showed that Kennedy was disciplined for “holding silent, private prayers.” As Judge Smith wrote, however, these judges appear to have “succumbed to the Siren song of a deceitful narrative of this case spun by counsel” for Kennedy, and that “narrative is false.”  As Judge Morgen Christen pointed out in agreeing with the denial of rehearing, the record showed that “BSD did not demonstrate a hint of hostility or bias toward religion or non-religion” and it had a “compelling interest in avoiding an Establishment Clause violation.”

Several opinions written or joined by Trump judges pointedly noted the previous statement of concern by four right-wing justices, and effectively invited Supreme Court review of the case. For example, one opinion joined by four Trump judges claimed that the panel had ignored the “guidance” of the four justices and instead “doubled down on its ‘troubling’ view.” Trump Judge Nelson, joined by Trump judges Bumatay and VanDyke and several others, specifically criticized the panel’s reliance on the Santa Fe case and the “endorsement” standard, calling the case a  “suspect” ruling based on the discredited and “atextual and ahistorical” Lemon decision of the Court. Nelson pointedly noted that the Supreme Court “has recently taken a different tack in Establishment Clause cases” based on a more restricted “historical approach,” under which the current Court could well rule in support of Kennedy and to overrule or disregard its “suspect” Santa Fe  decision.

Kennedy’s lawyers from the First Liberty Institute, which has been described as “[p]rominent in the legal circles on the Christian right,”  have already stated that they will again take the case to the Supreme Court. With Trump justice Amy Coney Barrett joining the four (including Trump justices Kavanaugh and Gorsuch) who have already stated they are “troubled” by the case, the outlook is not promising. The case is yet another example, as part of our fight for our courts, of the importance of confirming judges nominated by President Biden who will truly respect religious liberty, including church-state separation.