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June 27, 2022

Supreme Court Upholds Coach's Right to Offer Private Prayer at Middle of Football Field Without Being Harassed or Fired by School;
Lemon Test and Its Tweaks Effectively "Interred"

Quick background on the Lemon test, another bit of nonsense from the fluff-brained dithering dolt Sandra Day O'Connor, who never met an area of law she could not confuse and FUBAR with her ditzy liberalism.

The Lemon test, while it has been criticized and modified through the years, remains the main test used by lower courts in establishment clause cases, such as those involving government aid to parochial schools or the introduction of religious observances into the public sector. Under the three-part test, the court would examine the proposed aid to the religious entity and ensure that it had a clear secular purpose. The Court also would determine if the primary effect of the aid would advance or inhibit religion. For the third prong, the Court would examine whether the aid would create an excessive governmental entanglement with religion.
99 I thought The Lemon Test was rubbing your groin, then putting your hand in a strangers face. Posted by: wth

Well no, that is more The Lemon Hobby. But I do understand the confusion.

Later O'Connor would attempt to "clarify" her own muddy muddle, in Lynch, by retconning the Lemon test.

Applying [her retcon of Lemon into the "endorsement" test] to Lemon, O'Connor wrote that "the purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." The effects prong asks whether a governmental practice has "the effect of communicating a message of government endorsement or disapproval of religion."

The Supreme Court has repeatedly put Lemon in check and warned lower courts away from using it, without formally taking it out behind the shed and putting a bullet in its head.

Supreme Court Justice Neil Gorsuch has twice chided government entities in the span of a week for following an oft-criticized ruling intended to ferret out excessive entanglement with religion. The so-called Lemon test remains on the books, even as the justices act as if it is no longer good law.

"This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie," Gorsuch said in a May 2 concurring opinion, referring to the court's 1971 ruling in Lemon v. Kurtzman, which created a test for evaluating Establishment Clause cases.

The Lemon test "has been effectively dead for many years in the Supreme Court," but never formally overruled since a majority of justices who think it's no longer good law likely can't agree on what should replace it, said University of Virginia law professor Douglas Laycock.

Inaction leaves lower courts and local governments in a bind.

In Shurtleff v. Boston, Gorsuch on May 2 faulted city officials for pointing to Lemon for its decision prohibiting a Christian group from flying a flag over City Hall. A unanimous Supreme Court said that was religious discrimination.

That was just last month.

Reason has a nice quote from Justice Scalia on Lemon, noting that Justices pretend its a real ruling when they want to forbid a practice and then correctly assume its bad law when they want to allow a practice.

Gorsuch gives Lemon its final burial, in an opinion joined by Roberts, Barrett, Alito, Thomas, and Kavanaugh, at least for most of the opinion. Gorsuch says he's not formally overruling Lemon, but Sotomayor, in the dissent, says he is.

I don't know why he says he's not overruling it; he says that courts should no longer follow it. He says it's no longer law. That sounds like an over-rule to me.

The case is about a high school coach who used to go out to the middle of the field and offer a private prayer after a game. He did this alone and without inviting anyone to join him. However, some students and players did wind up joining him, as did players from the other team.

The prayers were short.

The District he worked for forbade him from doing this, claiming that the Establishment Clause of the Constitution, and the Lemon "endorsement" test, required them to forbid him from privately praying.

He did it anyway, and the District dropped him as an employee.

Some quotes from the opinion. First, the Ninth Circuit and the District Court erred on claiming his private prayer was "government speech" rather than what it obviously was, his personal speech done on his own time.

[The Ninth Circus] agreed with the District Court that Mr. Kennedy's speech qualified as government rather than private speech because "his expression on the field--a location that he only had access to because of his employment-during a time when he was generally tasked with communicating with students, was speech as a government employee." Like the District Court, the Ninth Circuit further reasoned that, "even if we were to assume . . . that Kennedy [the coach] spoke as a private citizen," the District had an "adequate justification" for its actions. Id., at 1016. According to the court, "Kennedy's onfield religious activity," coupled with what the court called "his pugilistic efforts to generate publicity in order to gain approval of those on-field religious activities," were enough to lead an "objective observer" to conclude that the District "endorsed Kennedy's religious activity by not stopping the practice." Id., at 1017--1018. And that, the court held, would amount to a violation of the Establishment Clause.

Thus setting up the whole stupidity the left has forced on the country: The government is "endorsing religion" if it does not affirmatively discriminate against the religious and affirmatively attempt to stamp religion out.

How very communist of the left. Quelle plot-twiste.

The Free Exercise Clause provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. Amdt. 1. This Court has held the Clause applicable to the States under the terms of the Fourteenth Amendment. The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through "the performance of (or abstention from) physical acts."

Under this Court's precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not "neutral" or "generally applicable."

"Neutral" or "generally applicable" laws or rules would be, for example, no one after a game may stand upon the field at all. That would affect everyone and would be neutral towards religion.

But that's not the rule the District is pushing. They're pushing the rule that you can't go out on the field to pray.

Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy "strict scrutiny" by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. ...

In this case, the District's challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy's actions at least in part because of their religious character. As it put it in its September 17 letter, the District prohibited "any overt actions on Mr. Kennedy's part, appearing to a reasonable observer to endorse even voluntary, student initiated prayer." The District further explained that it could not allow "an employee, while still on duty, to engage in religious conduct."

Because the Lemon test told them they had to quash any religiosity in teachers or students or else be seen as "endorsing" religion.

Prohibiting a religious practice was thus the District's unquestioned "object." The District candidly acknowledged as much below, conceding that its policies were "not neutral" toward religion. 991 F. 3d, at 1020.

This is pretty amazing: The Ninth Circuit actually argued that Kennedy, the coach, should give up his right to pray because, being a teacher, he was a role model for students.

And the Communist Party can't have its party functionaries influencing children to believe in God.

Okay they didn't say that last part. But that's the gist.

In reaching its contrary conclusion, the Ninth Circuit stressed that, as a coach, Mr. Kennedy served as a role model "clothed with the mantle of one who imparts knowledge and wisdom." The court emphasized that Mr. Kennedy remained on duty after games. Id., at 1016. Before us, the District presses the same arguments. And no doubt they have a point. Teachers and coaches often serve as vital role models.

But this argument commits the error of positing an "excessively broad job descriptio[n]" by treating everything teachers and coaches say in the workplace as government speech subject to government control. On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or
prohibit a Christian aide from praying quietly over her lunch in the cafeteria.

This objection to an "overly broad job description" is why I object to those who claim that companies can fire you for any reason, including just political speech you make off the job. Because you "represent the company" at all times. At all times, even during your off hours, you are apparent a Brand Ambassador always "reflecting" on the company.

Oh really? And are we being paid extra to be 24/7/365 Brand Ambassadors?

Are we literally never actually off the clock?

Was Coach Kennedy never off the clock? Was he always speaking for the government and therefore expected to be a Model Government Man?

Yeah, I mean, companies can do this, but "conservatives" who cheerlead for this and cheer them on into making workers their 24/7 slaves are crackpots who just love the crack of the whip.

I mean, if you're literally always "representing a company" or "reflecting on a group," then that company or group does have the right to control your speech. After all, it impacts them.

The logic works.

The premise has to be refuted. We are not always acting as the cells of a larger corporate body.

Likewise, this argument ignores the District Court's conclusion (and the District's concession) that Mr. Kennedy's actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities. Others working for the District were free to engage briefly in personal speech and activity.

That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech. To hold differently would be to treat religious expression as second class speech and eviscerate this Court's repeated promise that teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The Court next addresses the framework The Lemon Left have established, in which the Establishment Clause (the government shall establish no religion) is the enemy of Free Expression of both Speech and Religion, and in which the latter two must always lose.

As we have seen, the District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. On its account, Mr. Kennedy's prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in "direct tension" with the competing demands of the Establishment Clause. App. 43. To resolve that clash, the District reasoned, Mr. Kennedy's rights had to "yield."

The Ninth Circuit pursued this same line of thinking, insisting that the District's interest in avoiding an Establishment Clause violation "'trump[ed]'" Mr. Kennedy's rights to religious exercise and free speech.

But how could that be? It is true that this Court and others often refer to the "Establishment Clause," the "Free Exercise Clause," and the "Free Speech Clause" as separate units. But the three Clauses appear in the same sentence
of the same Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." A natural reading of that sentence would seem to suggest the Clauses have "complementary" purposes, not warring ones where one Clause is always sure to prevail over the others.


The District arrived at a different understanding this way. It began with the premise that the Establishment Clause is offended whenever a "reasonable observer" could
conclude that the government has "endorse[d]" religion. The District then took the view that a "reasonable observer" could think it "endorsed Kennedy's religious activity by not stopping the practice." On the District's account, it did not matter whether the Free Exercise Clause protected Mr. Kennedy's prayer. It did not matter if his expression was private speech protected by the Free Speech Clause. It did not matter that the District never actually endorsed Mr. Kennedy's prayer, no one complained that it had, and a strong public reaction only followed after the District sought to ban Mr. Kennedy's prayer. Because a reasonable observer could (mistakenly) infer that by allowing the prayer the District endorsed Mr. Kennedy's message, the District felt it had to act, even if that meant suppressing otherwise protected First Amendment activities.

In this way, the District effectively created its own "vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other," placed itself in the middle, and then chose its preferred way out of
its self-imposed trap.

To defend its approach, the District relied on Lemon and its progeny. n upholding the District's actions, the Ninth Circuit followed the same course.And, to be sure, in Lemon this Court attempted a "grand unified theory" for assessing Establishment Clause claims.

That approach called for an examination of a law's purposes, effects, and potential for entanglement with religion. In time, the approach also came to involve estimations about whether a "reasonable observer" would consider the government's challenged action an "endorsement" of religion.

What the District and the Ninth Circuit overlooked, however, is that the "shortcomings" associated with this "ambitiou[s]," abstract, and ahistorical approach to the Establishment Clause became so "apparent" that this Court long ago abandoned Lemon and its endorsement test offshoot. The Court has explained that these tests "invited chaos" in lower courts, led to "differing
results" in materially identical cases, and created a "minefield" for legislators.

Literally every Sarah Day O'Connor ruling does that.

This is key:

This Court has since made plain, too, that the Establishment Clause does not include anything like a "modified heckler's veto, in which . . . religious activity can be proscribed" based on "'perceptions'" or "'discomfort.'" An Establishment Clause violation does not automatically follow whenever a public school or other government entity "fail[s] to censor" private religious speech.

Have you noticed how much our society is being transformed to have the default assumption being "You MUST censor"?

Nor does the Clause "compel the government to purge from the public sphere" anything an objective observer could reasonably infer endorses or "partakes of the religious." In fact, just this Term the Court unanimously rejected a city's attempt to censor religious speech based on Lemon and the endorsement test. In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by "'reference to historical practices and understandings.'"

The Court again rejects judge-made tests and insists the only test is "history" and prior practice. They keep repeating this. I think this is encoding originalism as the new guiding doctrine without coming right out and saying so.

An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some "'exception'" within the "Court's Establishment Clause jurisprudence."

Oh well, that was pretty clear.

In the end, the District's case hinges on the need to generate conflict between an individual's rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties--and then develop some explanation why one of these Clauses in the First Amendment should "'trum[p]'" the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the "mere shadow" of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity's concerns about phantom constitutional violations justify actual violations of an individual's First Amendment rights.

Respect for religious expressions is indispensable to life in a free and diverse Republic--whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his First Amendment claims. The
judgment of the Court of Appeals is

R E V E R S E D.

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