The Supreme Court’s Fake Praying Coach Case Just Got Faker
Last year, the Supreme Court ruled in favor of a high school football coach’s right to engage in “brief, quiet, personal” prayer—despite photographic evidence that his prayers were drawn-out, loud, and extremely public. At the time, the decision was embarrassing enough, as it rested on the fiction that the coach, Joe Kennedy, was reprimanded for “private religious expression” when he was actually establishing huge prayer circles in the middle of the field. Since then, the situation has only further exposed the shameful artifice of the ruling. At first, Kennedy appeared to have little interest in taking back his old job, which was supposedly what he was fighting for. Then he acknowledged that he had sold his house and moved across the country, with no plans to move back. Finally, on Friday, Kennedy returned to coach one football game. Then he quit, as the Seattle Times reported on Wednesday. He has no evident desire to exercise the rights that his lawyers fought for over years of litigation. Those lawyers, however, will walk away with $1.775 million in attorneys’ fees, paid out by the school district.
This final chapter of the “Coach Kennedy” saga was foreseeable—inevitable, really—well before the Supreme Court handed down its decision in June 2022. Kennedy has lived in Florida for years, which the court knew but ignored in its race to use his case as a vehicle to expand prayer in public schools. It’s the mirror image of 303 Creative v. Elenis, the big religious freedom case handed down this June, which also rested on allegations that ranged from tenuous to outright bogus. The problem here is simple: Conservative litigators want this Supreme Court to expand a vision of religious liberty that abolishes the separation of church and state while granting Christians a freewheeling right to discriminate, often with public funding. They are seizing upon any case that will give the court this opportunity, with little concern for the truth of the underlying claims. And the Republican-appointed justices seem eager to twist reality into whatever shape necessary to give them what they want.
If these justices cared to look, they could have forecast the twists that followed their decision in Kennedy v. Bremerton School District. The case was built on a shaky foundation: Kennedy and his lawyers, led by Paul Clement and the far-right First Liberty Institute, alleged that the school district instructed him to stop praying on the field during and after football games, and fired him when he refused. These prayers, he said, were hushed, personal expressions of faith that players were free to join or ignore. In truth, the prayers were a spectacle. Kennedy would gather students around him in a large circle, lift a helmet, and lead them in overtly sectarian prayer; non-Christian players felt coerced into joining, assuming (quite reasonably) that their coach would show favoritism toward those who participated.
This kind of coercive religious conduct strikes at the heart of the First Amendment’s establishment clause, which guards against sectarian indoctrination at public schools. In a 6–3 decision, though, the Supreme Court found that Kennedy’s prayers were protected by the First Amendment’s guarantees of free speech and free exercise. To reach this conclusion, Justice Neil Gorsuch’s majority opinion rewrote the facts, depicting Kennedy’s prayers as fleeting, muted, and unobtrusive. Justice Sonia Sotomayor’s dissent repudiated this lie with pictures of the sprawling prayer circles, which Gorsuch disregarded. He instead embraced what one lower court judge decried as “the Siren song of a deceitful narrative of this case spun by counsel.”
There was, all this time, another huge red flag in Kennedy v. Bremerton: Coach Kennedy said he wanted an injunction forcing the school district to rehire him—but he lived thousands of miles away. Bremerton School District is in Washington State, where Kennedy lived when the case commenced. As it dragged on, though, he sold his home in Washington and relocated to Florida with his wife. When the school district’s lawyers discovered this move, they advised the Supreme Court that the case had become moot, arguing that Kennedy clearly did not want his job back.
Kennedy’s lawyers filed an incensed response avowing that their client craved a return to Washington. “He remains ready, willing, and able to return to his job just as soon as his constitutional rights are vindicated. It is really that simple,” they wrote. “The relocation to Florida is not permanent, and Kennedy stands ready, willing, and able to move back to Bremerton as soon as humanly possible should he prevail in this litigation and be permitted to resume his coaching duties.” Indeed, they continued, he is “champing at the bit” to “resume the job he loves.” Attached was a declaration from Kennedy stating that, if he prevailed, he “would return home to Bremerton immediately.” He attested: “I am ready and willing to resume my coaching duties in Bremerton, WA. I can do so within 24 hours of reinstatement, if I am still temporarily residing in Florida.”
By that point, Kennedy had joined the conservative speaking circuit, pivoting away from his coaching career. When a court ordered the school district to rehire him, the Seattle Times’ Danny Westneat reported, they initially did not get a response. While Bremerton students were preparing for a new season of football, Kennedy was meeting with former Vice President Mike Pence. On the night before their first game of the season, he was awarded an engraved rifle at an American Legion convention. Meetings with former President Donald Trump, and later, Florida Gov. Ron DeSantis, crowded his calendar. (Kennedy dined with DeSantis but remains loyal to Trump.) And then there was the problem of housing: Kennedy had none in Bremerton, or the state, or the region. When he finally returned for his one and only game last Friday, he crashed at a friend’s place. Kennedy no longer says he is “temporarily residing in Florida”; the Sunshine State is his home. Kennedy’s previous claims otherwise were clearly a total fiction that the court bought lock, stock, and barrel.
It’s all too reminiscent of 303 Creative. In that case, a website designer named Lorie Smith said Colorado’s nondiscrimination law forced her to make wedding websites for same-sex couples—if asked. But she was never asked! Smith’s lawyers at Alliance Defending Freedom claimed that one gay couple, Stewart and Mike, indicated some vague interest in engaging her services. They seized upon this allegation as proof that Smith might imminently discriminate, break the law, and face penalties. One day before the decision, though, the New Republic’s Melissa Gira Grant reported that Stewart and Mike do not exist. They were made up. Smith’s entire business, too, had tenuous roots in reality; it seemed to exist largely to serve as a test case for Alliance Defending Freedom. Mission accomplished. None of these deceptions stopped the court’s hard-right supermajority from siding with the web designer.
ADF has a history of relying on shady or fictional clients as an excuse to get into court, as Supreme Court litigator Adam Unikowsky has documented. In 2019, ADF claimed to represent a calligraphy company that refused to make wedding invitations for same-sex couples (though it was never asked). The company emerged shortly before ADF filed a lawsuit on its behalf, and disappeared shortly after the Arizona Supreme Court ruled in its favor. Its website was then taken over by an Indonesian casino. ADF also represented a supposed videography company in Minnesota, Telescope Media Group, that did not want to film weddings for same-sex couples. (You guessed it: None ever asked.) In 2019, an appeals court issued a preliminary injunction granting it the right to discriminate.
Rather than throw in the towel, Minnesota decided to pursue its hunch that Telescope Media Group was, essentially, not real. It sought discovery that would, among other things, reveal the company’s origins and ongoing business practices, if they existed. ADF abruptly moved to dismiss the case, stating (for the first time) that Telescope Media had pivoted away from wedding videos (it’s unclear if they ever even filmed one). Minnesota resisted, declaring its intent to test ADF’s “highly fanciful allegations” and prove that the group had taken “advantage of the judicial system” and now wished to “avoid the merits of this case.” ADF was so desperate to dodge discovery that it then moved to dismiss the case with prejudice, formally killing it—despite the fact that ADF had won once and was almost guaranteed to win again. Due to this desperate maneuver, the ADF lost out on hundreds of thousands of dollars in attorneys’ fees. This was done, seemingly, to avoid any more facts coming out about the true nature of its client’s business.
We should expect nothing less from the organization that lied so shamelessly about medication abortion in pursuit of a nationwide ban on mifepristone. But we should expect more from the courts, which sided with the fabulists in each of these other cases. The Constitution limits the federal judiciary to live controversies, and the ADF strategy shows one reason why. When interest groups can manufacture cases, they give courts a chance to make sweeping policy announcements with ambiguous applications in the real world. The Supreme Court’s decisions in Kennedy and 303 Creative did not provide meaningful relief to the ostensible plaintiffs. Rather, Kennedy gave the greenlight to more school-sponsored prayer, while 303 Creative rolled back the rights of same-sex couples by denying them equal access to the market.
ADF will now find (or engineer) new clients to push the limits of those rulings. Coach Kennedy moved on from his own litigation long ago, but there’s an endless supply of culture warriors who will gladly serve as the protagonist of ADF’s next fictional case. By playing along with these illusory cases, the Supreme Court shows itself to be an easy mark—or, perhaps, an all-too-willing dupe.
