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Sotomayor says Gorsuch flubbed prayer case facts (and she’s right)

The Supreme Court’s conservative majority appears to have misrepresented relevant details — and Sonia Sotomayor brought photographs to prove it.


There’s no shortage of obvious problems with the Supreme Court’s ruling in Kennedy v. Bremerton School District. This is, after all, a case in which six Republican-appointed justices ignored decades of precedent about church-state separation and effectively declared that a public school official, whose salary is paid by taxpayers, can lead public school students in religious worship at a public school event.

But less obvious is a different kind of problem: The high court’s conservative majority appears to have misrepresented highly relevant details about the case itself.

Writing for the majority, Justice Neil Gorsuch insisted that coach Joseph Kennedy lost his job after offering “a quiet personal prayer” after football games. Gorsuch, whose rhetoric about church-state separation has echoed televangelists’ phrasing, added that the football coach simply wanted to participate in “a short, private, personal prayer.”

Pushing back, Justice Sonia Sotomayor explained that the conservative majority wasn’t just wrong in its judgment about religious liberty, it was also wrong about the basic factual details. From her dissent:

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

For those who’ve never read a slip opinion from the Supreme Court, it’s worth emphasizing that they almost never include images: Justices write their opinions, concurrences, and dissents — and that’s it. There's nothing but text.

But in her dissent yesterday, Sotomayor took the highly unusual step of including several photographs to prove her point: The images showed the high school coach engaged in public worship with public school student athletes — minors who were seeking their coach’s approval, and who needed to stay on his good side if they intended to play — at public school events.

This is the same coach who, according to the public record, led Christian prayers in public school locker rooms with public school students before games.

And yet, there was Gorsuch, marveling at school officials objecting to a person engaging in “quiet,” “short,” “private,” and “personal” prayer.

In reality, if Kennedy had engaged in a “quiet,” “short,” “private,” and “personal” prayer, there wouldn’t have been a case since no one would’ve cared. Indeed, this is precisely what school officials asked Kennedy to do.

But for the coach, “quiet,” “short,” “private,” and “personal” prayers weren’t good enough. By all appearances, Kennedy went out of his way to pursue the opposite course, indifferent to the law, the school district's policies, or the interests of students and their families who may not have been comfortable with these religious exercises.

The result was a Supreme Court case in which the justices not only disagreed over how best to apply the First Amendment, but they also appeared to be examining entirely different facts. The conservative majority settled on a conclusion that relied heavily on falsehoods.

Alas, there is no fact-checking follow-up process with the Supreme Court. It’s not as if lawyers could file an appeal, telling the Republican-appointed justices, “Since you appear to have been confused about basic details, we’d like you to take another look.”

Instead, we’re left to deal with the consequences of a case in which conservative jurists wanted to reach a specific outcome, while being about as honest with the relevant points as they were during their confirmation hearings when talking about their respect for precedent.