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Coach Kennedy Is Going To The Supreme Court – With John Bursch: Hostility towards Christianity is on a rise in our public schools. Did we ever favor Christianity in our schools? Do teachers get to keep their Constitutional rights? What is the difference between public expression of one’s faith and state-instituted religion? Tune in to hear John Bursch, senior counsel and vice president of appellate advocacy with Alliance Defending Freedom, discuss what is at play in the Coach Kennedy case!

Air Date: 02/16/2022

Guest: John Bursch

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live. We’re taking on those hot topics of the day from a biblical, historical, and constitutional perspective. That’s how you rebuild the walls.

If you’re wondering what WallBuilders stands for, it comes out of that scripture in Nehemiah that says, arise and rebuild the walls that we may no longer be a reproach. If you think about those biblical days, if you didn’t have those outer walls, your city was run over. You got to rebuild the walls in order to rebuild the culture. 

In America, it’s the foundation that we’re rebuilding. It’s the foundations of principles of liberty. It’s the idea that our rights don’t come from government, they don’t come from our neighbors, they come from God, that our freedom comes from God, that this system that we enjoy is because we did it the biblical way.

And we’ve lost those first principles. We’ve lost those basic ideas. We stopped teaching it in the education system. And so we have to start teaching that to ourselves, to our family, to the people in our church, to our neighbors. That’s what we do here at WallBuilders. All week long, whether it’s interviews like we’ll have today, or its Foundations of Freedom Thursday, where we take your questions or Good News Friday, where we talk about the results of infusing the principles of liberty into the culture, all week–

It’s essentially about how to restore the culture, rebuild the walls, bring back the principles of liberty so that we can get the results in the culture that I think all of us want to see. Prosperity, liberty, abundance, all of those things, it happens when you follow the biblical commands on how to treat your neighbors, and how to form your society.

So thanks for joining us here on WallBuilders Live to talk about that. I’m Rick Green, a former Texas legislator and America’s Constitution coach. And I’m here with David Barton. He’s our founder at WallBuilders. He’s America’s premier historian, Tim Barton’s with us, he’s a national speaker and pastor and president of WallBuilders. 

And we’re glad that you’re with us as well. Check out our website today at wallbuilderslive.com. That’s the place where you can make a contribution if you want to come alongside us. It takes finances, of course, to do something like this and to reach more people. So your donations definitely make a difference.

And that’s also where you can grab some of those links and share the program with your friends and family. Get it out there. Be a force multiplier. It’s great information being shared on this program. Don’t just listen to it. Make sure that other people are listening as well and you are educating the people in your circle.

Alright, guys, later in the program, we’ll have appellate attorney John Birch with us to talk about this case out of Washington. Of course, we’ve talked about this a lot on the program with Coach Kennedy the Supreme Court’s going to take it. 

Man, David, I think you kind of started WallBuilders based on some of the changing things in public schools where kids couldn’t pray. Now you got a coach who can’t even pray by himself on the football field, by himself after the game. And we’re going to have to fight that at the Supreme Court. So this is something we’ve talked about a long time here at WallBuilders.

David:

Well, one thing I’ve got to point out is you said public schools and they no longer are. Public schools used to mean the public. It was a little of everything. It was every kind of belief, and person and whatever. And now they are so hostile to Christian beliefs. They’re no longer public.

Tim:

Well, let’s even back up because even that notion of public schools, if we’re going to go historical here, the idea they were open to everything, well, they weren’t always open, because it used to be a very strong Christian morality that was being taught and instilled in students. It was very pro-Bible. And then it became a little more neutral over time. And you get to the late 1800s to early 1900s, the Bible wasn’t as strong in the curriculum, although it was definitely still present. It was still evident.

This is where one of the famous cases, 1912, when Pennsylvania passed their education law requiring the Bible a chapter be read before the school day starts, it’s 10 verses, okay. And that’s what was challenged in 1963, the [inaudible 03:38] decision, Abington, Schempp and Murray and Curlett, where the US Supreme Court said, okay, we’re not having the Bible in schools anymore. Even if it’s voluntary, even if students are not required to read those 10 verses, we’re not going to do it in schools anymore.

Christianity in Schools

But you’re talking about the Bible was still the foundation of morality. So this idea that even public schools were wide open, that’s the way people generally view it today. That view was not promoted or upheld in any court really until the 1960s when they said, you know what, we’re not going to favor Christianity in our schools. 

We’d always favored Christianity in our schools, because as the Founding Fathers pointed out, religion and morality were going to be the foundation of the nation or the nation wouldn’t function without religious and morality. And they said, there’s no greater religion than that of Christianity, and the moral teachings of Jesus.

So, all that to say public schools, yes, it was always open to the public. But even you go back to George Washington, when he told that the group of Delaware Indian chiefs that if they sent their native children, their Indian children to our American schools, they were going to learn above all the religion of Jesus Christ. So this was the foundation of American education, was Christianity was the Bible was that biblical morality.

And up until again about the 1960s, that was traditionally viewed as the way American schools were when the US Supreme Court ruled and said we’re not going that way anymore. We have now gone an incredibly different direction from where public schools used to be in America.

David:

Yeah. In public schools, you’re right, Tim, it came from a very pro-Christian view because you wanted something that benefited the public. It was something that would help the public and religion morality did, it kept the society so much more civilized, it kept the crime rates down, etc. If he didn’t have those internal controls, then you weren’t a good citizen.

And that’s why Daniel Webster said “Whatever makes people a good Christian makes them good citizens.” And that’s true. The cops don’t arrest the Christians for the drive-by shootings and for the burglaries and etc. So that was the public aspect of it. Now, it is exactly the opposite. And it’s interesting that since so many things are coming out now in public schools, the CRT, etc, even the red states in the rural areas thought, well, we’re not as bad as the others. And maybe you’re not as bad, but oh, my gosh, you’re still really bad.

And I’ll take you to this is a non-urban school, this is this is a school that would be considered more conservative part of the state. Now I want to just read you this article “Plainwell Michigan High School student, David Stout was suspended for three days.” Guess why? He expressed his Christian beliefs in private. 

He had a text with a fellow student, and the fellow student also was likeminded believer like he was and they were talking about Jesus, Jesus died for the sins of the people, and what Jesus does in redeeming people. And they also talked about how biblical morality, homosexuality is wrong, and there’s only two genders.

This is private conversations. And these texts were also off campus. And teachers found out about them, and he is now suspended for three days. And when they confronted him, they wanted to know why he did not self-report himself for giving those texts. Now, you have to self-report for expressing Christian beliefs off campus and because you didn’t self-report, you’re now getting suspended for three days.

Rick:

Excuse me, Mr. Principal, I’m sorry. But I sent a text and said, I love Jesus and I need to confess to the… Oh, unbelievable!

David:

And so that anybody who thinks public schools is the way you grew up with them, or the public schools are still neutral, or the public schools have the public interest at heart, that’s not the case. It is pure indoctrination. And it’s just crazy.

Tim:

And let me jump in. Because already I know there’s people out there listening, they’re going, wait a second, how dare you slam public schools, because I’m a public school teacher, or a principal or superintendent. This is not to say that there’s not good people that are out there a part of public schools. But you’re talking about a system as a whole. I mean, you’re living in a system that’s big, right. It’s like saying over in China, China’s this Communist nation, and terrible things happen to China. 

Well, there’s an underground church in China that is doing really good things in China. Guess what? They still live in a Communist nation with a dictator, and that dictator is still murdering and enslaving, and etc, etc, etc. There are really bad things happening in China.

This is the essence of what we are talking about. When we talk about the public school system, it’s not that there are not good people in the system doing good things. But the system as a whole is a very broken, very bad system that is damaging far more students than it is helping on the whole. And this is where you see also the hostility toward religion on a rise in these public school systems in America.

Teachers and Constitutional Rights

David:

So what’s happened with the school’s over recent years with all these court cases, they’re now we’re at the point that, hey, look, you have all these constitutional freedoms, but you have to give them up when you step on the public school campus. And this is particularly for adults. If you’re an adult, you can’t pray on a campus. You can’t be seen praying on campus. You can’t have your Bible at your desk as a teacher. 

Even though if there was a work situation, anywhere else, you could. If you are working somewhere else, you work at Walmart or whatever, you could do that stuff. But you work in a public school. No, you have to give up your constitutional rights.

And so what’s happened is the Supreme Court has picked up a case out of Washington State where that a former military guy, Marine, he’s a football coach, after the game, he would just go out to the middle of field by himself and just take a quick knee and say, God, thank you for protecting these kids, and etc. Well, somebody saw that and said, you can’t do that. You’re an adult. 

You’re a teacher to school, you don’t have the constitutional right to express your faith. So you’ve got Kennedy just taking a need just doing a simple acknowledgement and prayer, which is a constitutional guaranteed right he has; except for the last 30-40 years, the courts have been saying, well, not if you’re a teacher, you don’t have the same constitutional rights.

And so this goes back to a case in 1980 where that in a moment when Justice Scalia actually made a mistake, acknowledged later, he said, look, if the government has a compelling state interest, we can limit religious expressions. No, you can’t. That’s a constitutional guarantee. 

And so what’s happened is, well, it’s a state interests to not let teachers be seen praying over the Bible or whatever. And the Supreme Court has now accepted this case out of Washington State with Coach Kennedy. And we think they’re specifically taken so they can overturn this bad decision from back in 1980.

As a matter of fact, just a couple of years ago, and part of a concurring opinion, you had Justice Alito and Justice Thomas, say, hey, if this case comes back to us with Coach Kennedy, somebody make sure you raise that 1980 decision. And that’s like a signal. We want to get rid of that 1980 standard and go back to a constitutional Standard. 

So this is a really, really huge thing. This is something that that can be literally earth shattering for religious liberties. What we’re seeing right now is we’re winning a lot of cases at the US Supreme Court, so we have great hopes in this.

So our friends over First Liberty have this case and we saw an article recently from an ADF attorney in Alliance Defending freedom, also great friends, who was discussing this case. Now, that’s a great perspective. So we’re having him on to talk about this case.

Rick:

Alright, John Birch will be with us when we come back from the break. And as you were saying, David, you know, Kelly Shackelford actually gave us great briefing at the legislators’ conference a few weeks back, and we played that talk here on WallBuilders Live, it’s in our archive section, just about how much better the courts are today after the four years of Trump and the difference of the Supreme Court and that we may be looking at some great religious liberty victories over the next 10-12 years, this case, being one of those big ones. Quick break, we’ll be right back, you’re listening to WallBuilders Live.

THE AMERICAN STORY

Hey, guys, we want to let you know about a new resource we have here at WallBuilders called The American Story. For years, people have been asking us to do a history book, and we finally done it. We start with Christopher Columbus and go roughly through Abraham Lincoln. And one of the things that so often we hear today are about the imperfections of America, or how so many people in America that used to be celebrated or honored really aren’t good or honorable people.

One of the things we acknowledge quickly in the book is that the entire world is full of people who are sinful and need a savior, because the Bible even tells us that all have sinned and fallen short of the glory of God. And yet what we see through history, and certainly is evident in America is how a perfect God uses imperfect people and does great things through them. 

The story of America is not the story of perfect people. But you see time and time again how God got involved in the process and use these imperfect people to do great things that impacted the entire world from America. To find out more, go to wallbuilders.com and check out The American Story.

Rick:

Welcome back to WallBuilders Live. Thanks for staying with us. John Birch is with us from Alliance Defending Freedom. They do phenomenal work. You need to checkout ADF and get on their email list, donate to them, help them continue to do the incredible work they do across the country. John, thanks for some time today, man.

John:

So happy to be here. Thanks.

Rick:

Hey, I am excited that the Coach Kennedy case is going to the US Supreme Court. Seems like this should be a no brainer from the beginning, but it hasn’t been a no brainer. It’s been back and forth, back and forth. And now here we are years later. Can a coach pray on his own at the 50-yard line essentially, is the question here. Or maybe I’m seeing that wrong. And I’m glad you’re on to tell us a little bit more about the case and what you guys expect from the Supreme Court here.

John:

We think it’s very straightforward. And you’re absolutely right. This case never should have required the Supreme Court to intervene because the First Amendment to our US Constitution protects every individual’s right to pray. And we don’t give that up. And we take a job with a public employer, even as an assistant football coach at a public high school.

Rick:

What is at the heart of this? I mean, is it hostility towards someone expressing their faith? And if they do it in anywhere near the public square, even when it’s private expression that some people just hate that and they want to stop you from being able to live out your freedom? Or is there some real concern on the school district’s part that somehow they’re endorsing religion? I mean, what do you think is at play here?

John:

Well, it certainly started as hostility. Ever since Coach Kennedy started working at this high school, the Bremerton High School, he felt compelled to offer a quick silent prayer alone after each game. And after he did this several times, some students asked about it and asked if he could join. 

Practicing Your Religion

He told them it was a free country. I mean, over time, more players voluntarily joined in that prayer, eventually a majority of the team, but no one ever complained about it for seven years. No player was ever forced to participate. It was all voluntary. And then someone just got upset about it.

It started when an employee of another high school mentioned Coach Kennedy’s prayer to the Bremerton principal, and then another Bremerton administrator expressed disapproval to Coach Kennedy that he was doing this. 

And so then the school accuses him of violating the schools religious-related activities and practices, even though that policy says nothing about silent prayer by school staff. And then they tried to claim this establishment clause problem. And they told him he could not demonstrate or engage in any demonstrative religious activity readily observable to other students and the attending public.

So that means even if he was going into the cafeteria and having lunch, and the other students were there, he couldn’t bow his head and say a short silent prayer. He could pray in the janitor’s closet if the door was closed, and no one could see him. So what started as hostilities turned into just this outrageous claim that somehow the separation of church and state required him to disappear from public view every time he prayed.

Rick:

Repeat that part from me again, John, about so he could not have any demonstration of his faith essentially, he could not right without his faith-based?

John:

Right, as long as students and other people could see it. That would presumably apply to wearing a shirt or a tie with a religious message on it, saying, God bless you to someone as you were going down the hall, even sharing at a student’s initiation a private moment of prayer together because the student wanted that, and maybe they were having difficulty at home or had a parent who is in the hospital.

Rick:

Or a tragedy happens, you know, somebody gets hurt, or there’s some kind of crazy person comes in trying to hurt people and if he were to cry out to God for help, that would presumably fall under this, that would be exercising his faith.

The Establishment Clause

John:

Yes, exactly. And that’s not what the Establishment Clause is supposed to be doing. All the Establishment Clause is and ensures that the federal government is not establishing its own religion and then forcing people to participate in it. What the lower courts did here is they use an imagined Establishment Clause concern to violate Coach Kennedy’s free exercise rights.

Rick:

You’ve argued as many Supreme Court cases, federal and state as anybody I know. You know, thinking about the different appellate courts and this one coming from, we jokingly say all the time, the Ninth Circuit, is that a factor here? I mean, is the Ninth Circuit just so out of whack that we expect the Supreme Court to correct that? Or have you seen other cases this hostile in the other appellate courts?

John:

There are certainly other courts that have reached this level of hostility. We’ve got a state petition pending in a case out of the 10th Circuit Court of Appeals, a case in Colorado involving our client, Laurie Smith, and 303 website design company, 303 Creatives. And all she wants to do is be able to create websites that celebrate marriage between one man and one woman. 

By Colorado laws, public accommodation laws say that if she does that, then she would also have to celebrate same sex marriages. And Colorado prohibits her from even posting on her website her religious views about what she can and cannot create consistent with her beliefs.

And the 10th Circuit said that the government could compel her to speak against her conscience. They could prohibit her from telling other people what her religious beliefs are. And the fact that her material was creative and original, was even more of a reason why the government could compel it because if you wanted a website designed by Laurie, you couldn’t get it from anyone else besides Laurie. And a dissenting judge called that Orwellian. There’s another case pending in the Supreme Court…

Rick:

Wait, I got to stop you there. John. I just want to zero in on that because I would certainly agree with that dissenting judge that they essentially said, the state, the government could force you to express something that violates your closely held religious beliefs. I mean, this is remarkable to me. 

And especially when it comes to your talent, or your gift or your purpose, your art, that you’re now going to put your life’s purpose into supporting and expressing things that are absolutely against your own convictions. This is America, and this is happening.

John:

Yeah. Not only are they compelling you to speak against your beliefs, but they’re doing it in a one sided way. So the Colorado officials admit that if you were a gay website designer, you would never have to design a website for a church that declared that marriage is only between one man and one woman. But if you’re a religious person who believes that marriage is between one man and one woman, you can be compelled to celebrate same sex wedding.

Rick:

Heads, they win; tails, we lose.

John:

Right. So, one other case that I’ll mention because you’re asking and we could literally talk about these types of cases all day, there’s a case that the Supreme Court just heard oral argument, and it involves the flag poles in front of Boston City Hall. One flag, the pole shows the US flag and a POW flag, another pole has the state of Massachusetts. And the third one usually has the city of Boston’s flag, but they will allow other groups who want to put up a flag to use it whenever they want.

Flying A Christian Flag

And in the past, they had received, I think, 284 286, something like that request to put flags up. And they said yes to every single one. But when a group came along and asked to put up a simple Christian cross on a flag, just a red cross on a blue background, the city said no because that would be government endorsement of religion, which is just as ridiculous as saying that Coach Kennedy praying silently on the 50-yard line after a game is over endorses religion by the government.

So it’s not just the Ninth Circuit. This is happening all over the country. And the more these cases are litigated and come out the way the Ninth Circuit did, the way the 10th circuit did in the website case, the way the First Circuit did in the flag case, the more the Supreme Court’s going to have to step in and, of course, correct.

Rick:

Yeah, that flag when it’s just outrageous. Our mutual friend Mat Staver argued that when we had him on to talk about. And he felt like just based on and I know it’s not a crystal ball debate based on their questions and the tone in the hearing, but he felt pretty confident, felt like it looked pretty good. 

This is totally unfair for me to ask you this. But do you think the court makeup right now, and of course, the Brier things, a nonissue because it’s not going to change the makeup at this point. But do you think the makeup at this point is leaning more towards being Constitution-friendly, they’re going to uphold the First Amendment and religious liberty? Or do you think it’s going to be like these appellate courts and really create all these crazy tests that make it where you got to stand on one foot and hold your head just right to be able to live out these basic freedoms?

John:

Well, we have some pretty good trend lines. The religious liberty parties have won 16 out of the last 17 cases that the US Supreme Court, which is a pretty good track record. But before you get too excited about that, most of those decisions were very narrow that only moved the ball just a little bit at a time.

So for example, in Trinity Lutheran, they said that a school religious preschool that wanted to be eligible for playground resurfacing funds that the state of Missouri was providing to schools that applied couldn’t be excluded just because of their religious nature. And the Court ruled in their favor 7-2, but dropped a footnote that said this case only applies to resurfacing of playgrounds. And so that took later cases to broaden that out.

Or just last year in the Fulton versus City of Philadelphia case, the court upheld Catholic social services right to refer same sex couples who wanted to foster children to other agencies because of the Catholic Church’s teachings about marriage being between only one man and one woman. And the court could have issued a really broad holding that created a precedent that would have protected religious believers in many contexts. But instead, they ruled again, just a very, very narrow ground based on one clause in Philadelphia’s contract.

So it’s great to see that religious liberty litigants are winning in these cases. But if we keep getting these tiny little bites at the apple and lower courts, which are showing no regard for the Free Exercise Clause, it’s going to mean lots more litigation. We would love to see the court be a little bolder, and issue broader rulings that protect more people than just the parties in front of them.

Rick:

Yeah. Well, my last question then is also unfair. Do you predict that this case has a chance for a more general broader ruling? Or based on what you’ve seen in the pleadings in briefs, I mean, are there some pegs on which they can hang a really narrow ruling?

Free Exercise Clause

John:

Well, it could go either way. So I’m always hopeful that we’ll get the broad ruling, but you don’t know. I mean, this could be the one that says, generally, the public schools can allow their employees to engage in silent prayer and to wear religious articles. 

And that doesn’t violate the Establishment Clause. In fact, prohibiting them from doing that violates the Free Exercise Clause. Oh, but by the way, this only applies to assistant football coaches when they play in football field.

Rick:

Right. Right.

John:

So let’s hope that’s not the case.

Rick:

Yeah. Yeah. Absolutely. John, great review. I really appreciate you coming on and helping us make some sense of all this. Let me ask one more question. Timing, so this is something they’ll hear and then potentially decide with the rulings that they’ll release this summer it? Did they set a date for when it’s going to be heard?

John:

They’ve not set the date yet. But they said when they granted it, it appears that it will be on the April argument calendar, which is the very end of the argument sessions that they have. And that would mean a ruling no later than June 30th. So we can see something on this pretty quickly.

Rick:

Excellent. Excellent. Alright, Adflegal.org for more information, get on the email list, donate, help these folks continue this great work. John, thanks so much for your time today. Appreciate you.

John:

Thank you Take care.

Rick:

Alright. That was John Birch from Alliance Defending Freedom. Back with David and Tim Barton. So guys, we’ve set it for a few years, we need a couple of big wins at the Supreme Court to radically change our religious liberty persecution back to religious liberty and freedom.

David:

Yeah, this can be a seismic shift in the country. Now, what’s going to happen is it’s going to take the other side, the hostile side a good while to get used to all the freedoms that we get restored. And these are not new freedoms. These are constitutional freedoms. As Tim pointed out, in public schools for two centuries, we were really pro-religious, and we’re simply going back to what we had for two centuries, not the last 40 years. 

But it’s going to take a lot of educators and a lot of principals and superintendents and others a good while to get used to that. And especially, the guys on the left, the ACLU and the People for the American way and Americans United separation of church and state, I mean, this doesn’t mean they’re going to go away, but it’s going to take a while to get this back in the system and thinking and actually the behavior of Americans, if you will.

Coach Kennedy Is Going To The Supreme Court – With John Bursch

Tim:

Well, one of the things that was pointed out in the interview is there’s a difference between someone establishing a religion and enjoying their own free exercise. And so, when you see an individual in their own private capacity, even if they are in view of the public, if they’re expressing their own faith, whether it’s praying over a meal, God bless you when someone sneezes in the hallway, that’s not a violation of the First Amendment. 

And this is also where you go back to this false narrative of the separation of church and state that there’s so much we could talk about what this. But the bottom line is that this is something that we can see individual liberty restored specifically for teachers, which would be huge going forward for the state of our nation.

Rick:

Alright, folks, thanks for listening today. Be sure to visit the website wallbuilderslive.com, lots of lots more great information for you there, a little tongue tied today. Anyway, check out wallbuilderslive.com and be sure and listen to those programs for yourself, but also share them with your friends and family. I just think being a force multiplier, as we said, at the top of the program is such an important piece in terms of turning the nation around. We’re not going to be able to do this on our own. We’ve got to rally people.

And I’m telling you, I promise you, I hear the testimonials every day, if you will raise the banner, people will rally. I see this with our constitution coaches all the time. We now have 11,000 Constitution coaches around the country that are teaching these principles by simply sharing the videos going through one of our Constitution courses, and then letting people share together, sharpen each other’s continents. 

It’s a great way to be involved. If you want to be a part of that and host a biblical citizenship class, you can go to wallbuilders.com today and get the DVDs and the workbooks. You can go to biblical citizens.com today and sign up for some of the digital tools that we make available to you. But just get engaged, start looking for ways to make a difference and impact the world around you.

God bless you, and thanks for listening. You’ve been listening to WallBuilders Live.