Win a Supreme Court Case, Get Denounced by the Media as a Fake Litigant

It’s ugly when the reward for people who win Supreme Court cases affirming their constitutional rights is denunciation by the media as a fraud.
Win a Supreme Court Case, Get Denounced by the Media as a Fake Litigant
Bremerton High School assistant coach Joe Kennedy takes a knee and prays at the 50-yard line after Bremerton's win over Mount Douglas in a high school football game at Bremerton Memorial Stadium in Bremerton, Wash., on Sept. 1, 2023. (Meegan M. Reid/Kitsap Sun via AP)
Charlotte Allen
9/16/2023
Updated:
9/20/2023
0:00
Commentary

The headline is what has happened to Joseph Kennedy, the assistant high school football coach in Bremerton, Washington, who made headlines after the local school district suspended him in 2015 for praying at the 50-yard line after Friday night games.

In June 2022, after seven years of fighting the suspension in back-and-forth letters and federal court, Mr. Kennedy won a 6–3 ruling from the U.S. Supreme Court that the Bremerton School District had violated his rights of freedom of speech and freedom to exercise his religion, both protected by the Constitution’s First Amendment.

The high court’s majority opinion, written by Justice Neil Gorsuch, noted that the brief and silent personal prayers that had led to Mr. Kennedy’s suspension—he had earlier prayed aloud but quit that in response to an earlier district directive—were private religious observances during post-game breaks when coaches on the field were free to engage in secular personal activities such as checking their phones.

The district had “sought to punish an individual for engaging in a brief, quiet, personal religious observance,“ based on ”a mistaken view that it has a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” Justice Gorsuch wrote.

“The Constitution neither mandates nor tolerates that kind of discrimination,” he said.

Mr. Kennedy, an 18-year Marine veteran and practicing Christian, had moved to Port Orchard, Washington, in 2006 and begun coaching at Bremerton High School in 2008—a part-time job that even today pays only $5,304 per year. He filed suit against the district in 2016. In 2020, after his case had dragged through the courts for four years without resolution, he sold his house and moved with his wife to Pensacola, Florida.

Joe Kennedy, a former assistant football coach at Bremerton High School football field in Bremerton, Wash., on March 9, 2022. (Ted S. Warren/AP Photo)
Joe Kennedy, a former assistant football coach at Bremerton High School football field in Bremerton, Wash., on March 9, 2022. (Ted S. Warren/AP Photo)
The school district didn’t formally reinstate him until March. Back on the job and lodging with a friend, he helped coach a single varsity game—a winner—for Bremerton High on Sept. 1. Then, on Sept. 6, he abruptly resigned. His resignation letter reportedly cited a “series of actions meant to diminish my role and single me out in what I can only believe is retaliation by the school district.” In an interview with The Seattle Times, he gave an additional reason: his father-in-law’s sudden health emergency, which necessitated a flight back to Florida.

It’s easy to understand Mr. Kennedy’s predicament. It must be supremely uncomfortable to work for an employer that booted you out eight years ago and was forced to take you back, in a once-familiar student environment that’s now mostly strange faces. But to the media covering his case, Mr. Kennedy’s resignation was just one more piece of evidence that he was a grandstander and a fraud: ostentatiously praying and publicizing his dispute on his Facebook page and blog.

Moving out of state was the ultimate effrontery, and the media argued tirelessly that the move had rendered his case moot—that he had no real interest in getting his job back and that his main aim was to persuade the conservative-dominated Supreme Court to issue an opinion eroding the separation of church and state. (The Supreme Court justices, even the three dissenters, ignored the mootness argument.)

What clearly rankled was Mr. Kennedy’s popularity. Although he had at first prayed on the field as a solitary figure, handfuls, and later dozens, of Bremerton players and others began joining him. At his last prayer before his suspension in October 2015, spectators rushed down from the stands to overrun the field.

The Seattle Times, hostile to “the praying coach” from the beginning, has been the leader of the media wolf-pack. The newspaper has run at least seven editorials and op-eds mocking Mr. Kennedy since the Supreme Court agreed to hear his case in January 2022. The words “myth” and “surreal” have figured prominently. In the latest such entry, published on Sept. 9, Seattle Times columnist Danny Westneat said the Supreme Court justices who decided in Mr. Kennedy’s favor might “wonder if they got played” after he announced his resignation.

“The case was never really about Bremerton, or the ... football team or students,” Mr. Westneat wrote. “It was about a national conservative legal campaign to push more religious doctrine into the public sphere.”

The national media chimed in. At Slate, the headline was “The Supreme Court’s Fake Praying Coach Case Just Got Faker.” Slate contributor Mark Joseph Stern wrote, “By playing along with these illusory cases, the Supreme Court shows itself to be an easy mark—or, perhaps, an all-too-willing dupe.”
New Republic writer Matt Ford called Mr. Kennedy’s lawsuit a “phantom-docket” case: “They rest upon nebulous theories of standing, hypothetical injuries, and right-wing causes célèbre. Phantom-docket cases have allowed the [Supreme Court’s] conservative majority to rewrite precedents while avoiding any immediate real-world consequences of their rulings.”
Lorie Smith, a Christian graphic artist and website designer in Colorado, prepares to speak to supporters outside the Supreme Court in Washington on Dec. 5, 2022. (Andrew Harnik/AP Photo)
Lorie Smith, a Christian graphic artist and website designer in Colorado, prepares to speak to supporters outside the Supreme Court in Washington on Dec. 5, 2022. (Andrew Harnik/AP Photo)

Mr. Kennedy is hardly alone as an object of media derision after winning at the Supreme Court. Colorado web designer Lorie Smith is another.

On June 30, the Supreme Court ruled, in another 6–3 decision involving freedom of speech, that the state couldn’t use its anti-discrimination laws to force her to create wedding celebration websites for gay and lesbian couples. Ms. Smith believes that same-sex weddings violate the biblical precept that marriage is between a man and a woman. The media had a field day with Ms. Smith, making much of the fact that she wasn’t actually in the wedding website business at the time she filed suit and that she had supposedly used as evidence a gay couple’s request for a wedding website that turned out to be spurious.

“The Mysterious Case of the Fake Gay Marriage Website,” a New Republic headline blared. The Associated Press picked up the story: “Legitimacy of ‘customer’ in Supreme Court gay rights case raises ethical, legal flags.”

In fact, the request never played a part in Ms. Smith’s lawsuit, and the Supreme Court ruled that her case was a standard-issue “pre-enforcement” lawsuit involving her legitimate claim that the mere threat of state sanctions had a chilling effect on her free-speech rights. But the smear against Ms. Smith has stuck.

The Supreme Court’s landmark 6–3 decision in Students for Fair Admissions v. Harvard on June 29, overturning colleges’ race-based admissions policies, triggered a media onslaught against Edward Jay Blum, a longtime affirmative-action opponent who had founded the nonprofit Students for Fair Admissions in 2014. Articles in The Washington Post, The New York Times, and other outlets implied that Students for Fair Admissions, which claims 20,000 members, was a front operation masking Mr. Blum’s one-man crusade.

“Blum ... has spent two decades ... searching for like-minded plaintiffs,” a Boston Globe article reads. “Along the way, he’s found wealthy conservative backers to bankroll much of his efforts.”
Slate called Mr. Blum “the well-off beneficiary of a powerful infrastructure of right-wing funders, think tanks, and lawyers.”

In fact, the Supreme Court had specifically held that Students for Fair Admissions was a good-faith voluntary membership organization whose members included high-school students turned down by colleges on suspected racial grounds. No different, in that respect, from the NAACP.

It’s an ugly turn of events when the reward for people who win Supreme Court cases affirming their constitutional rights is denunciation by the media as a fraud with a phony lawsuit. But the vilification is all too real, and former football coach Mr. Kennedy is just its latest victim.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Charlotte Allen is the executive editor of Catholic Arts Today and a frequent contributor to Quillette. She has a doctorate in medieval studies from the Catholic University of America.
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