Joe Kennedy was fired in 2015 as a football coach at a high school in Bremerton, Washington. His fireable offense? He had violated the Establishment Clause of the First Amendment by praying silently at midfield after football games were over and the field had cleared. His firing was upheld by the political activists posing as judges who sit on the 9th Circuit Court of Appeals.
The Supreme Court this week denied to review Kennedy’s appeal, but said that their denial does not, in the words of Justice Alito, “signify that the Court necessarily agrees with the decision” of the lower court. The Court says it needs more facts before it will be able to act intelligently on Kennedy’s request for review.
But here is the manifest, inescapable problem. If we use the written Constitution as given to us by the Founders – rather than the one mangled by the courts – it is flatly, unambiguously, and definitively impossible for a football coach to violate the First Amendment.
This is true for three reasons. First, Joe Kennedy is not Congress. As the very first word in the First Amendment makes plain, the amendment applies to Congress and Congress alone. “Congress shall make no law…” The only entity restricted by the First Amendment is Congress, and by extension, the entire federal government. Only Congress can violate the First Amendment. It is impossible for a coach, or a teacher, or a school, or a city council, or a state government to violate the First Amendment for the simple reason that it does not apply to them. The Founders did not write it to restrain anyone but Congress.
The second reason is that Coach Kennedy has no authority to pick one Christian denomination and make it the official church of the United States. That’s what it would take for him to violate the Establishment Clause. “Establishment” had a quite clear, technical, and precise meaning at the time of the Founding. It meant to pass a law “establishing” one Christian denomination as the official church of the United States.
Since the First Amendment applied only to the federal government, the states were left free to have established churches if they wished, and 10 of the original 13 states did. Usually “establishment” meant that taxpayers were required to fund the established churches with their tax dollars. So at the time of the Founding, the states were allowed to establish churches, but the federal government was not. Since the First Amendment has never been amended, it means the same thing today as it did in 1787. [The “incorporation doctrine” is an egregious display or judicial activism which wasn’t “discovered” (i.e, invented) until the 20th century. It was terrible jurisprudence when it was first advanced, and remains terrible jurisprudence today.]
Congress is the only entity that can even possibly violate the Establishment Clause, and the only way it can do that is by passing a law establishing one denomination as the nation’s official church. As long as doesn’t do that, it can do anything it wants religiously, including having paid chaplains and calling for national days of prayer.
Again, since Joe Kennedy is not Congress, and has no authority to establish an official church for the country, he cannot possibly violate the Establishment Clause even if he made it his goal in life.
The rest of the First Amendment reads, “Congress shall make no law…prohibiting the free exercise (of religion)…” Here’s the kicker. Congress – and by extension the entire federal government including the judiciary – has absolutely no permission to interfere in any way with the free exercise of religion. What did the the 9th Circuit do to Coach Kennedy? Well, when it prohibited him from praying silently on the field after the game was over, it was inarguably prohibiting his free exercise of religion. So it was the 9th Circuit that violated the First Amendment, not Coach Kennedy.
There is almost no judicial tangle that could not be unraveled if we used the only valid Constitution that exists, the one enacted by Congress and the people in 1789, with the words of the Constitution meaning exactly what the Founders intended them to mean.
Thomas Jefferson complained that the biggest threat to our republican form of government was the federal judiciary, “advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States…”
Methinks Jefferson knew what he was talking about.
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