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Supreme Court punts on important religious liberty case. CP.

Supreme Court punts on important religious liberty case

By Mario Diaz, CP Op-Ed Contributor | Wednesday, January 23, 2019

The Supreme Court building in Washington, DC as featured in a Ted Cruz presidential campaign 

It is difficult to find words that can adequately sound the alarm of the religious liberty threats we face as a nation. We are getting weaker by the moment on the protection of our “first freedom,” and the opposition gets bolder with every half-hearted attempt, whether by courts or opportunistic politicians, to take the middle ground where none exists.   

The recent denial of cert. (judicial review) in the case of Coach Kennedy (Kennedy v. Bremerton School District), who was fired for daring to pray privately after high school football games, is a prime example of how anemic we have become. Concerned Women for America (CWA) submitted a brief in support of Coach Kennedy alongside other religious liberty organizations. The reasons the Supreme Court’s conservative majority gave for declining to hear the case are unpersuasive and should be a warning of trouble ahead for us all.

In a disappointing statement by Justice Samuel Alito, who was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, they try to save face by reminding us that the “denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) below.”

He is right. It does not mean that. It certainly does not mean they disagree with the decision either, or they would have vacated it. What they say is that, “In this case important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”

What are these important “unresolved factual questions”? Well, the statement notes that Coach Kennedy was given two reasons for being fired: (1) that he neglected his responsibility to supervise his players while he was praying, and (2) that his actions would lead a reasonable observer to think the district was endorsing a religion. These reasons were given in writing. There is no factual question about them. Still, the statement of Justices Alito joined by Thomas, Gorsuch, and Kavanaugh, claims, “the court should have made a specific finding as to what petitioner was likely to be able to show regarding the reason or reasons for his loss of employment.”

For that reason, they actually concur in the denial. This is mindboggling. They criticize the district court for converging the two reasons together, but the district court is not wrong. The only reason he was fired is because he was praying.  Surely the justices do not think he would be fired if he goes to the restroom after the game, “leaving the kids unsupervised.” Coach Kennedy was fired because he dared say a private prayer in a way that could be seen publicly. He is Daniel praying in his chambers while being seen through the window. And our laws today in the year 2019 in America allow him to be thrown in the lion’s den of unemployment.

The justices’ statement does show some apprehension to this incredible injustice.  Alito writes, “While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public-school teachers is troubling and may justify review in the future.”

Oh good; Coach Kennedy might just need to spend another decade fighting this case in order to see justice. Listen to what they acknowledge:

According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth 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.

Exactly. Then, why in the world would they concur with denying judicial review? Why not take the case and undo the damage done by the Ninth Circuit? Send a clear message in support of religious freedom. The statement continues: “What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith — even when the coach is plainly not on duty.” Again, such blatant hostility towards religion is prohibited by the Constitution, which is why it is a shame the Court elected to punt on this case.

And it gets even worse. Alito again,

[T]he Court criticized him for “his media appearances and prayer in the BHS bleachers (while wearing BHS apparel and surrounded by others).” This conduct, in the opinion of the Ninth Circuit, “signal[ed] his intent to send a message to students and parents about appropriate behavior and what he values as a coach.” But when petitioner prayed in the bleachers, he had been suspended. He was attending a game like any other fan. The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable. (Internal citations omitted)

These blatant violations of Coach Kennedy’s constitutional rights more than warrant the Supreme Court’s attention.  At a time when hostility towards Christian beliefs continue to rise in our country, it is unfortunate not to have enough votes at the Supreme Court to give a hearing to such an important case.

We are grateful the statement signals that this case is not over, “While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.” But people of faith all over America are rightly pondering if they will be the next victim of our lack of courage in protecting religious freedom. What will it take for us to wake up and fight for religious freedom with the resolve it warrants?

Mario Díaz, Esq., serves as Concerned Women for America’s Legal Counsel and leads CWA’s Legal Studies Department. Mr. Diaz is a Constitutional Law expert who focuses on cases and legislation dealing with CWA’s core issues: religious liberty, sanctity of human life, defense of the family, sexual exploitation, education, national sovereignty, and support for Israel.