Country Narrowly Dodges A Bullet Fired By Weaponized First Amendment

I just see two out routes with a seam pattern up the middle. What do you see? (image via Getty)

Yesterday, while the Supreme Court was busy NOT giving Donald Trump leverage in his vanity wall fight, the Court denied cert in an important First Amendment case. The Theorcrat wing of the Supreme Court was not happy about it.

The case involved Joseph A. Kennedy, a high-school football coach who wouldn’t stop leading his public school students in prayer. After repeatedly being warned by the school to stop his on-field praying activities, Kennedy was fired. He sued, claiming that his First Amendment rights to free speech and free exercise of religion had been violated.

The Ninth Circuit shut him down, and the case was appealed to the Supreme Court. As I said, the Court denied cert, but Justice Samuel Alito wrote an angry letter about it that was co-signed by Justices Thomas, Gorsuch, and Brett. From the ABA Journal:

Alito said it was unclear whether Kennedy was fired for neglecting to supervise the football players during his prayers or for praying when he wasn’t really on duty or when he would have been allowed a short break for private conduct.

Despite his agreement that the court should not hear Kennedy’s case, Alito said he found the views of the 9th Circuit “most troubling.”

Alito said the 9th Circuit had applied the Supreme Court’s 2006 decision on public employee speech in Garcetti v. Ceballos to “public school teachers and coaches in a highly tendentious way.”

“The 9th Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report for work to the moment they depart, provided that they are within the eyesight of students,” Alito wrote.

One might argue that praying on a public football field is not “private” conduct when you are the coach of a team, regardless of whether or not you are “on duty.” I mean, it would certainly seem Colin Kaepernick’s “private” conduct garnered enough public attention for National Football League owners to illegally collude against him to deny him employment.

But, you can’t tell conservatives that the First Amendment is there to protect speech. They’re done with that argument. Too many non-white people are using the First Amendment to protest and be angry and make it uncomfortable for Jeff Sessions to proselytize bigotry to law students. Instead, modern conservatives are all about letting people use the First Amendment to impose themselves upon others who disagree.

Would you like to humiliate gay people who have the misfortune of asking you to bake them a cake? There’s a conservative First Amendment argument for that. Would you like to deny women who you employ access to a basic health service? There’s a conservative First Amendment argument for that. Would you like to shame and humiliate public school students who don’t want to kneel and participate in the Lord’s prayer? Hell, that’s conservatives’ favorite First Amendment argument. If they had their way, the Establishment Clause would be read entirely out of the Constitution.

Alito had to stand down here, because the fact pattern didn’t make for a clear way to promote Kennedy’s religion over everyone else’s. But given where First Amendment jurisprudence is going in this country, another opportunity will be coming.

In praying football coach case, 4 SCOTUS justices criticize 9th Circuit’s ‘highly tendentious’ reading of precedent [ABA Journal]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Country Narrowly Dodges A Bullet Fired By Weaponized First Amendment curated from Above the Law