Fake News, Real Court Rulings

If the facts would lead to a left wing outcome, just change the facts

The last installment looked at how right wing politicians use fake “facts,” or ignore real ones, to create made up problems that call for right-wing solutions. For example, Trump is taking his “tough on crime” stance. When presented with FBI statistics that show crime has declined for multiple years running in an interview, Trump flicked his wrist at it with his usual retort: “Fake news.”

Playing fast and loose with the facts on the campaign has to be expected by now.

What many people don’t appreciate is just deeply this attitude has infiltrated the court system, and just how big of a deal that is.

A Quick Refresher of High School Civics and the First Amendment

To fully understand this, probably half of my five readers need a review of what courts do, and how religion is handled by the U.S. Constitution. The other half may skip this section.

The Role of the Courts

The United States uses a three-part government:

1. The legislative branch (Congress) creates laws

2. The executive branch (led by the President of the United States, who acts through federal agencies like the Department of Justice (DOJ), the Environmental Protection Agency (EPA), the Securities and Exchange Commission (SEC), and many others) enforces those laws

3. The judicial branch (the federal court system) interprets those laws and applies them to particular incidents

Each state in the U.S. has its own government that mirrors this arrangement.

Within the federal judicial branch, there are the District Courts, where judges gather as many facts that they can about the case and apply the laws triggered by those facts, and there are the appeals courts, where fine points of the law are argued.

This is important to understand: The fact-finding is done in District Court. The appeals courts – the intermediate Circuit Court and the final Supreme Court – do not gather new evidence.

At every stage, judges issue public rulings that describe the facts and how the law applies to them. These court rulings are dissected and closely scrutinized by the lawyers involved in the case. Appellate rulings bind the lower courts and are dissected and closely scrutinized by lawyers who practice in the field and by legal scholars. Some of these cases turn on the correct interpretation of a single word in the law.

Religion in the U.S. Constitution

One of those laws that can get applied to cases is the U.S. Constitution. The Constitution is the chief law in the U.S. – if judges deem that a law contradicts the Constitution, that law is ruled unconstitutional and has no effect.

However, many provisions of the Constitution are vague. In the course of interpreting and applying those laws to specific cases, judges have explicated and explained what those vague terms mean. These court rulings are legally binding.

One of those vague provisions in the Constitution is the First Amendment. It says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This creates a lot of vague constitutional rights for people. The two of them dealing with religion are:

• “Congress shall make no law respecting an establishment of religion,” known as the Establishment Clause

• “Congress shall make no law… prohibiting the free exercise” of religion, known as the Free Exercise Clause

This is where the concept of the Separation of Church and State comes from. Government (the Fourteenth Amendment expands the notion of “Congress” to cover state and local governments, in addition to the federal one) cannot stop you from practicing your religion, it cannot establish a particular religion as the state religion, and it cannot show preference for one religion over another, or for religion over non-religion.

Note, though, that there is some interplay between the Establishment Clause and the Free Exercise Clause. Public institutions, like, say, a public school, have to allow their workers to pray, but cannot be seen endorsing one religion over another.

The Fake News Attitude Has Infected the Judicial System

Because cases turn on evidence, which has to be presented to support legal claims and defenses, and because judges have to publicly explain their rulings, and because those explanations are scrutinized by the public, the legal community, and by other judges on appeals courts, the judicial system should be the last place that the Right Wing Alternative Reality can infiltrate.

Court is where baseless claims should go to die.

Unfortunately, the patently partisan cramming of the federal judiciary during the Trump administration led to a supermajority of Republican appointed judges on the Supreme Court – a supermajority that has, on at least one occasion, shown itself willing to cast reality aside in order to advance the right wing agenda.

That one occasion came in 2022, in the case Kennedy v. Bremerton School District.

This was the one where a public school football coach got fired for praying on the field after games – an extremely important issue for the right wing, which wants to inject Christianity, and only Christianity, into as many societal spaces as possible, and particularly into schools.

Apparently the issue is important enough for the Republican appointed justices to cancel what really happened in the case, which would likely have been an unconstitutional violation of the Establishment Clause, and replace it with a far more watered down version of events that make it appear as if it was the Free Exercise Clause that was under attack.

Here’s what actually happened.

In reality, the school’s football coach would go out to the 50 yard line to pray immediately after games, right after the players shook hands. Over the course of a few years, some of his players started to join him. Eventually, most of his players would join him, then players from other teams, and then spectators. The prayers became performative, not silent, and then became motivational speeches with overtly religious references. Some players reported that they felt as if they had to attend to be a part of the team. The school district learned of this and told the coach to stop, informing him that it violated school policy and made it appear as if the school was endorsing his religion in violation of the Establishment Clause. After all, he was still acting in his role as a coach, they were still in school football uniforms, and it was still being done on school grounds, right after a school-sanctioned event.

For a couple of games after the reprimand, the coach would finish his coaching job and then return to the football stadium later on to pray on his own. But that didn’t satisfy him so he hired a lawyer, informed the school district that he would hold his public prayer and motivational session after the upcoming homecoming game, on October 16, and then made several media appearances about his intentions to pray after the game. The school told him that he could return to the stadium while off-duty and pray. He refused and went through with his public prayer which, because of his media appearances, was filmed by news crews. Spectators stormed the field to take part, creating a disturbance. After the game, the school increased its security measures to keep order and told the coach to stop, but he refused. The media attention attracted bigger crowds and even some state lawmakers, all of whom wanted to take part in the performative exercise of their religion on public school property. Rather than forbid them from joining and enforcing school policy against the public using the football field, the coach reveled in the attention and was eventually put on administrative leave.

As the dissent in the Supreme Court’s opinion puts it, “This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.”

They were in the dissent, though, because the six Republican-appointed justices on the Court ruled on a case that was vastly different. The facts had to be different, or else right wing policy would suffer.

In their fictional account of events, the coach’s prayers began alone and silent, but then other players chose to join and they became “motivational talks.” Great emphasis was put on how players were free to not participate, in spite of the reports by players that they felt as if they had to participate in order to be on the team. When the school district told the coach to stop, “Mr. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field post-game prayer.” He asked the district “to allow him to continue that private religious expression alone,” claiming that the district’s policy “required him to flee the scene if students voluntarily came to the same area where he was praying.”

Note how the prayers are both “motivational talks” and a “quiet… private religious expression” that is done “alone.”

It was the description of the homecoming game, the first game where a crowd of people rushed on to the field in order to be seen praying, where the Republican justices really started making things up: “Mr. Kennedy offered a brief prayer following the October 16 game. When he bowed his head at midfield after the game, most [of the school’s] players were . . . engaged in the traditional singing of the school fight song to the audience. Though Mr. Kennedy was alone when he began to pray, players from the other team and members of the community joined him before he finished his prayer.”

There was no mention of the coach’s media tour before the game, and the Supreme Court’s Republican appointees claimed that it was the homecoming game on October 16, the game where local news cameras were rolling, that “spurred media coverage.”

The problem with that version of events, of course, is that it’s a lie. The media was there on October 16. And the media was doing what the media does: Taking pictures.

When the Facts Don’t Matter the Case Can Be About Whatever You Want

This fabricated version of events altered the trajectory of the case. By cancelling the performative, demonstrative aspects of the coach’s prayers and instead imagining them to be quiet, secluded, private affairs with no media appearances, the Republican justices turned the case from being about the Establishment Clause to being about the Free Exercise Clause. They did this after the District Court found facts that made it apparent to the judge there that it was about the Establishment Clause, and then the Ninth Circuit Court agreed.

This sort of thing has become disturbingly common. Through Trump’s court appointments, the right wing has, quite literally, created a pipeline from beginning to end for its court cases. It begins in the United States District Court for the Northern District of Texas in Amarillo, where the only judge is Matthew Kacsmaryk. Kacsmaryk has consistently shown that he is willing to ignore the facts and the law to push right wing policies.

Appeals from the Northern District of Texas are heard by the Fifth Circuit Court of Appeals. It has been so filled with right wing judges who are willing to bend the law to their will that legal analysts have described it as “the Trumpiest court in America” and “rogue.”

The good news is that the Supreme Court has repeatedly overturned the Fifth Circuit’s opinions, finding them to be over-the-top, aggressive, and on legally dubious grounds. The bad news is that multiple Supreme Court justices, Alito and Thomas, have repeatedly signed on to the Fifth Circuit’s right wing interpretation of the law and reality. The worst news is that, as the Kennedy case with the ostentatiously praying football coach shows, there are certain right wing policies that are important enough for all six of the Republican justices to be willing to cancel reality in order to advance.

This article is cross-posted to Substack (for free), on Medium (free for members but paywalled for others), and on Cancelling Reality’s website. Please consider subscribing there to support the author. It’s only $1/month. If you want to contribute more, you can make a monthly subscription on Patreon.