Kennedy v. Bremerton - Non-Coercive Post-Game Prayers by Coach Protected by First Amendment

 I have a lot of thoughts on the Supreme Court's decisions over the last week, but unfortunately not enough time for something comprehensive at the moment.  Here's my quick take on the most recent one:

* Kennedy v. Bremerton: 

Gorsuch Majority Opinion: Coach's post-game prayers are protected by the 1st amendment, provided students aren't coerced to join.  Religious expression is protected by the constitution, not treated as "second class speech."  The Free Speech and Establishment clauses should be complimentary, not in conflict, and must be read based upon the "understanding of the Founding Fathers."  

Thomas/Alito Concurrences:  Notice we didn't talk about the appropriate standard of scrutiny. That was on purpose.  The standards might be different under different circumstances, who knows anymore.  

Sotomayor/Breyer/Kagan Dissent:  The majority just changed decades of precedent again, based upon a factual narrative of someone saying a quiet private prayer, but here's photos of a public school coach in an area with diverse religious backgrounds leading a large group of students in a Judeo-Christian prayer. 

My analysis: I tend to agree with a lot of the majority opinion, even if it's a change in the law, although they seem to oversimplify the facts and issues.  Within appropriate parameters when it comes to pubic institutions, religious expression is supposed to be protected by the constitution.  But, it's a tough issue, and the Court has made it more difficult by continuing to move away from using standards of scrutiny (which has been going on for years, and isn't a left/right issue, and is a huge change).  They're re-writing the last century of constitutional law.  One concerning issue is that the majority compares the 50-yard line prayers to a Muslim teacher being allowed to wear a headscarf, but I don't see those as in any way comparable unless the teacher was also passing out headscarfs to students.  It's not clear the outcome would have been the same if it was a coach leading groups of students in kneeling towards mecca while praying Islamic prayers.    The Establishment and Equal Protection Clauses requires, and this Court may well strongly agree that they requires, that all types of religious expression receive the same protection.  Parts of the majority opinion read more like a brief (why is the coach being a veteran relevant, let alone so prominently noted?).  It's a very different approach than the Court has taken in a long time, and the is part of a major shift in the whole field of constitutional law. 

U.S. Supreme Court

So on Monday, March 21st, the US Supreme Court approved my admission, and denied a petition for certiorari that I’d drafted the brief in opposition for.  The arguments went deep into due process, equal protection, and takings jurisprudence, so I had an opportunity to draft what I thought was a very solid summary of the Court’s key precedents in those areas, and why there’s no need to revisit the issues in response to this case. While we’d gotten the case dismissed, I had argued before the lower courts that shouldn’t exercise jurisdiction, and in seeking cert the Plaintiff argued that Knick v Scott had expanded federal jurisdiction over state land use matters, so also had the chance to preliminarily brief some nuanced jurisdictional issues as well.  

I do a lot of constitutional and civil rights litigation, including a fair amount before the Second Circuit, so practicing before SCOTUS in the future isn’t unrealistic, and it is something I really hope to have the opportunity to do.  If I’m that lucky, it would presumably evolve out of my existing federal appellate work, but now that I’m officially admitted if anyone needs an attorney for petitioning for or defending against cert, or drafting an amicus brief, please keep me in mind.