Thoughts?

Unfortunately, I likely won’t have time to catch it until later in the week.

It starts with:

Kennedy tells a breathless tale of authoritarian government forbidding private religious expression, insisting that unless the Court applies his preferred legal test, religious practice will be quashed across the country. But his argument relies on creative remodeling of both the facts and the law. Hypothetical constructs are no basis for adopting sweeping new constitutional rules. And when what actually occurred is considered under this Court’s settled precedents, the commonsense result is that the Bremerton School District was well within its legitimate authority when it regulated its employee’s very public speech.

After the District learned that Kennedy regularly prayed to and with the football team, it did not fire him. Instead, it instructed him on what constitutes appropriate speech for a public-school employee, and it made clear (as it did up to the end) that his religious practice would be accommodated. That appeared to resolve the matter: For a month, Kennedy prayed privately while the team was otherwise occupied, and the District let him be—a fact that he neglects to mention.

But because no good deed goes unlitigated, Kennedy’s counsel sent a letter to the District castigating its guidance and accommodation efforts as unconstitutional and demanding that Kennedy be permitted to continue his previous prayer practice. Kennedy then announced to the press that he would indeed be continuing his prayers as before. He spurned all accommodation attempts, and his counsel worked overtime to turn the community against the District, while insisting that Kennedy be allowed to continue his midfield prayer with students.

The public responded. District administrators received threats and hate mail. Strangers confronted and screamed obscenities at the head coach, who feared for his safety. Kennedy supporters and members of the press rushed the field, knocking over students. And at Kennedy’s final game, he invited a state legislator to join his prayer and address the team. Even then, the District still tried to work with Kennedy to find a suitable solution.

Ignoring these facts, Kennedy frames his prayers as personal and private. But his contemporaneous words tell the real story: He repeatedly demanded to “continue” his prayer practice, declaring that he was “helping these kids be better people.” And his counsel explained to the district court: “The young men on the team are looking up to the coach. * * * That’s precisely why Coach Kennedy wants to do what he does.”

Public-school coaches can and do help students “be better people.” But spiritual guidance should come from students’ families and houses of worship, not the government. Under this Court’s long-standing jurisprudence, the District’s interests in protecting students from religious coercion and in preventing employees from commandeering government events outweigh Kennedy’s interest in praying with the students on the 50-yard line.

Kennedy disregards that settled law, insisting that when a government employer responds to its employee’s public religious speech at work—even when that speech causes difficult and dangerous situations—the employer is acting because of religion, so strict scrutiny should apply. 3 The Court should reject that novel proposition. Kennedy’s proffered rule would introduce untold confusion for all government employers, who would have to decide in real time, as circumstances evolve on the ground, the precise moment when an employee’s speech suddenly ceases to be government speech and becomes absolutely protected private speech. That approach cannot be squared with the law, the practical realities of government employment, or common sense.