If At First You Don't Succeed, Find a Conservative Judge Who Will Decide You Succeeded

A prayerful football coach finds victory after a number of mulligans.

hagerstown, maryland   march 11 supreme court justice attends a formal investiture ceremony for a local judge at the washington county courthouse, march 11, 2022 in hagerstown, maryland  photo by andrew lichtensteincorbis via getty images
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Somehow, on Monday, the Supreme Court resisted the temptation to teach us that the Environmental Protection Agency is unconstitutional because a lot of people in Philadelphia got cholera from bad water back in 1789. (The nightmare that is West Virginia v. EPA is coming, though. Have no fear. Or have lots of fear, now that I think about it.) But it was a pretty good day for theocracy. In Kennedy v. Bremerton School District, by the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell, the Court sided with a football coach named Joseph Kennedy who used to have his team meet at midfield for a postgame exercise in what the Court said Monday was “quiet personal prayer.”

The history of the case is a perfect example of a small-town controversy that was fairly clear-cut until the conservative movement managed to get it through a carefully engineered conservative-heavy judicial system until it finally landed on the doorstep of Supreme Court Justice Neil Gorsuch. In 2015, the school district told Kennedy to knock it off. Kennedy refused and was placed on administrative leave. Instead of reapplying for his job when his leave ended, Kennedy decided to sue the school district. He lost in court. Then he lost his appeal. Then an earlier Supreme Court declined to take his case.

But the longer you can keep going in the courts, the better chance you have of running into a conservative Christian who will find room for white-people Jesus in the Bill of Rights. When the Court first denied certiorari, Justice Samuel Alito—him again—warned that the decision didn’t mean that the Court agreed with the school district’s case. (I don’t know what the conservative legal variation of “virtue signaling” is called, but that’s what this was.) Kennedy tried again and, this time he finally found Gorsuch and the rest of the Papal States on the Supreme Court.

Once again, that crew threw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of the previous Establishment Clause law had rested on a 1971 case called Lemon v. Kurtzman—decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger—by which, as Oyez.org points out:

The Court held that a statute must pass a three-pronged test in order to avoid violating the Establishment Clause. The statute must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster “excessive government entanglement with religion.”

Gorsuch’s opinion on Monday breaks a lot of rock explaining, via the dissenting opinions in the most recent appeal, that the so-called “Lemon test” had fallen into legal desuetude, and that this gave the Supreme Court an excuse to grant cert this time around.

Several dissenters noted that the panel’s analysis rested on Lemon v. Kurtzman, 403 U. S. 602 (1971), and its progeny for the proposition that the Establishment Clause is implicated whenever a hypothetical reasonable observer could conclude the government endorses religion. 4 F. 4th, at 945–947 (opinion of R. Nelson, J.). These dissenters argued that this Court has long since abandoned that “ahistorical, atextual” approach to discerning “Establishment Clause violations”; they observed that other courts around the country have followed suit by renouncing it too; and they contended that the panel should have likewise “recognized Lemon’s demise and wisely left it dead.”

Leaving Coach Kennedy’s triumph for a moment, we should be wary of the blithe way the Court’s majority dismisses Lemon as irrelevant to Establishment Clause jurisprudence. Lemon was not purely about prayer. It has also been central to keeping the bunco scheme that is Creationism—as well as its gussied-up cousin, Intelligent Design—out of the public schools, which leads us to believe that Justice Gorsuch is engaging in some trickeration with regard to how obsolete the Lemon test really is. It was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana, and it was still relevant in 2005, when it helped decide a famous case in Pennsylvania.

In the 2005 decision in Kitzmiller v. Dover Area School District, relying in part on the Lemon test, Republican federal judge John Jones, Jr. blew the whistle on the whole scam. From his decision:

The court found that creation science organizations were fundamentalist religious entities that "consider[ed] the introduction of creation science into the public schools part of their ministry." The court in McLean stated that creation science rested on a "contrived dualism" that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that "one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution," and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. The court concluded that creation science "is simply not science" because it depends upon "supernatural intervention," which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable.

But in this particular political moment, you’d have to be considerably naive to think that the reactionary right isn’t coming for the public schools, largely because they never stopped coming for the public schools. They will use radicalized Christian religion as their primary artillery. Last week, the Supreme Court opened up the wallets of Maine taxpayers and invited religious schools to dive right in. Would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority, especially given the hand-wave modern conservatism gives to science generally? Or, if you need further clarification, let’s drop in on our old pal, Bill Barr. (Sorry about the link to The Federalist, but you have to find the truffles in the pig stye sometimes.)

Thanks to the current Supreme Court’s adherence to the original Constitution as written, Barr said he thinks this is an opportune moment for both court and legislative work to address this existential national crisis. “Public education was established as a melting pot that would establish a common American identity. How are the public schools doing on that front?” Barr asked, at which the audience burst into laughter. He continued: “The curriculum is now attacking the fundamental legitimacy of our form of government and our founding documents. That’s no way to bring us together as a nation.”

Public education is unconstitutional because it is insufficiently theocratic. An interesting legal theory that is coming soon to a Supreme Court near you.

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