Even though he was a publicly employed high school coach; and even though he was at a publicly sponsored school event; and even though the event took place on public school property; COACH KENNEDY'S personal private kneel n' pray during a lull in the game did not violate the Establishment Clause, but came under the protection of the Free Exercise Clause, because he did not offer his prayers during the "scope" of his employment....
OR..
as Alito, J. put it, he offered his prayers "when a brief lull in his duties apparently gave him a few free moments to engage in private activities." So.....lessee here. At five minutes to bell, Ms. Simpleswaithe, answers a little ringtone on her cell phone (to the tune of Guide us, Thou, Oh Great Jehovah) and in her personal lulling capacity, says:
...Oh Lord and Savior Jesus Christ, only Son of God Creator of all things, and Great Guide to us Thy humble, faithful Servants, we thank Thee for this opportunity, following in your footsteps, to guide these young minds entrusted unto us in the ways of knowledge and righteousness, to the glory of Thy Your Holy Name.AMEN/RRRRRRIIIIIIING.
So, what will follow now is a string of "case-by-case" jurisprudence defining the content and contours of "brief lulls." How brief is brief how lull is lull. And if you think lawyers can't turn this into several volumes of blah blah blah, think again.
As Sotomajor, J., pointed out in her dissent, the majority's opinion was cavalier with the facts. (I'm not sure that was the word she used...) So what were the facts on the ground?
Coach Kennedy made his kneel-and-pray at the end of the game, giving thanks to the Almighty Ruler of the Universe for his team's victory. Let us assume without futher ado that this nonsense qualifies as "religious practice." Far be it from us, etc., etc.. The point is, he did the thing at when the game was over, not at half time, not during a break to change players, not during the pause between national anthem and concession announcements.
Lull 1. n 1. Abatement of noise or violence; momentary calm; subsidence of tumult. (Funk & Wagnalls Standard English Dictionary (1937), New York/London. p. 1472)
Abatement. 1. The act or process of abating; or the state of being abated; decrease, amount of reduction. SYN. decline, decrease, diminish, ebb, lower, mitigate, moderate, reduce, subside. (Id. p. 3.)
(I always use old dictionaries because modern dictionaries take their definitions from the nearest potted out hippie or bro on the block.)
It will be noted that a "lull" is not the same thing as a "break" or a "pause." So it was not as if the kneel n' pray took place while there was a time out for everyone to go get hot dogs or take a pee. The game (which Kennedy was hired to coach) was still on. It was just on at a lesser intensity. But how can that be? The game was over. So what was the "lull" in? If not in the game then what else was left other than "time-on-the-job." But nothing in the opinion indicates that Kennedy's duties were over at that point or that he had clocked out. He was praying on the job pure and simple. But that's not what the majority opinion stated. It said very clearly that "he did not offer his prayers during the scope of his employment."
Without resorting again to Funk & Wagnalls, the word scope has definite, special legal meanings. In the context of employment it can refer either to (a) clock time on the job or (b) the performative duties envisioned in the job (what most people know as their "job description."
If the Court meant "scope" in the second sense, then the opinion would be circular nonsense. It would be tantamount to holding that because Kennedy's prayers were not part of his job description his praying was not within the scope of his job and were OK when done on the job. If this is the case then any government employee can pray loudly anytime because the prayer, after all is not within the "scope" of his job.
Giving all benefit of doubt to the highest judges in the land, they could not have meant scope in this sense. Indeed, the fact that they used the word "during" indicates that they meant "scope" in the sense of clock-time. That is at least something; but the indisputable fact is that coach Kennedy was still on the job. He still had to to shepherd his minions into the locker room, de-brief them, give them pep talks and whatever. There is no indication that Kennedy did not bill and was not paid for the 30 seconds he took to pray. So, indisputably he was praying loudly and ostensibly while on the job; something that was not and could not be within the performative scope of his employ.
So, yes "cavalier." But does it matter? One ripple in the highway of flawless jurisprudence surely does not matter. Actually it doesn't.
The rule of law governing precedents is pretty clear and long established: the holding of a case, the rule it promulgates is "bound by the facts of the case." To give a very simply example. If a decision announces a rule about "animals" -- ("We hold that animals must be..." etc.) -- but the facts show that only a pig was at issue before the court, then the rule of the case is limited to pigs. One can argue that the rule should be extended to horses or goats, but the rule itself is about pigs and pigs alone.
So in this case, the Court decided an abstraction. The majority told us that the kneel-in-pray was not done while on the job. Alito told us that it was done during a lull in the job, by which he obviously tried to insinuate that it was done during a break in the job. Okay. Since the Court says that those are the facts on which it is basing its rule, what's the problem? None. Absolutely none. Can anyone have a problem saying that individuals in public employ can pray while not on the job? Not in my view. On the contrary, I would say that of course they can. Anyone should be allowed to pray on their break. So the case is no big deal.
Except... does the Supreme Court really take up cases that are "no big deal" ? One might think they had better things to do. And indeed, whether they are better or not, they are doing it. This is how it works. It is called laying the groundwork.
This case goes to stacks (of law books) standing for the principle that a public employee can pray during a "lull" or "break" or "off time" in his job. Forget all the other facts. They don't "exist" because the Court ignored them and did not craft or base its ruling on them.
Two years down the road, a case comes before the Court, in which Ms. Simpleswaithe begins the class (after the bell has rung) with the above recited prayer. All breaks are over and the only thing that is scheduled is her instruction in sixth grade grammar. ("Give us Oh Lord, the light to see the difference between a noun-gerund and a participle. Amen.") the present Court will decide that this is permissible. The opinion will read something like this:
"Although in Kennedy, we held no more than that a public employee could pray so long as the prayer was not undertaken during the scope of his duties, the facts of the case showed that the petitioner in that case had only prayed during a lull in his duties but was otherwise still performing work he was hired to do. We see no reason now to draw an artificial distinction between... " etc. etc., blah, blah, blah.
In other words, the facts that they now ignored, will become the "backdrop" for extending the rule at a future date. That's how judges do these things. They've done it like from time immemorial. It's what makes the law such a cavalier profession
