Kneeling, Standing and the Law

 

I've commented before in this blog regarding the Supreme Court's decision in the Great Pray for Football case,  Kennedy v. Bremerton School District.  That was the case in which an assistant high school football coach claimed his right to freely exercise his religion was violated by a school district because it sought to restrict his ostentatious prayer-sessions after games, which took place at the 50 yard line (see the above copy of an exhibit in the case).  His religion, it seems, provides that such prayers be made.

After attempts to accommodate his desire to pray alone and silently, while in public and with others (as shown above), he was terminated.   A majority of the Supreme Court agreed with him that his First Amendment rights were violated.

As a result, he got his job back.  He has been residing in Florida for three years, however, quite a distance from Bremerton, which is in the State of Washington.  Having been reinstated, he resigned the position after a single game.  He made some vague claims in connection with the resignation regarding his feeling he was not getting from the school district what was justly due him given his status and his victory at the Supreme Court.  It apparently only took a single game for him to believe that to be the case.  He also acknowledged, though, that he's been living in Florida and has some sick relations there, and wanted to be there with his family.  His coaching position was only part-time, and he quit a full-time job at a Bremerton shipyard to go to Florida.

Since his employment with the school district, he has been photographed in various places, including before the Supreme Court building in D.C., usually kneeling.  He apparently kneels, and presumably prays when doing so, with considerable frequency and in the presence of photographers.  He's appeared in various media and talk shows, and is something of a celebrity.  He's summoned to speak at various conservative and religious events.  He's written a book.  A movie about him is said to be in the works.  He has his own Website.  

I think it's understandable, then, that some suspect his desire to regain his position as assistant high school football coach was never the reason for his sojourn in the legal system, and indeed that he was never interested in doing so.  One even might suspect that he conducted himself in such a manner that the school district felt it had no option but to terminate him, as his prayers became more and more of a spectacle.  In other words, that the school district was goaded into action.  In even more other words, that there was a deliberate attempt to obtain a Supreme Court holding on the issue.

One might also suspect that the Great No-Gay Wedding Website case, 303 Creative LLC v. Elenis, was similarly brought to solve what wasn't actually experienced as a problem given the fact that the person who supposedly sought to have a website devoted to a gay wedding denies having done so.  The tendency of the Supreme Court, or of any court, to decide questions which do not actually arise is troubling.

It's been the rule for a long time that a person who brings a legal action must have what's called "standing" to do so.   Generally speaking, a person has standing when the person has sustained or in the circumstances very likely will sustain an injury for which a legal remedy is available.  Legal action commenced merely to prove a point or address issues which may or may not arise, but haven't yet arisen, are to be disregarded by courts, which presumably have other things to do for people who are actually involved in existing disputes and have sustained actual damages.

The poet Wallace Stevens wrote that the imagination loses vitality as it ceases to adhere to the real.  It's the same with the law.  Where there is no real dispute to be resolved, no real circumstances to be addressed, legal decisions become detached from real disputes and real people.  They're mere abstractions.  They seek to address imagined realities.  They lack context.  They're speculations on what might or should be the case.  They're subjective declarations on what should be the case should something actually be the case.  Because they don't "adhere to the real" they're more likely to reflect the individual desires and preferences of those who make the decisions.  Also, it makes it difficult to assess when a legal decision would apply in the case of an actual injury or dispute, which can be very fact-dependent and specific.

It's to be hoped that the Supreme Court Justices will curb their apparent desire to proclaim what the law should be at least enough to require that a real controversy exist before doing so.  Otherwise, they may become political agents, and even unelected legislators, rather than judges.  There was a time when conservatives feared that was taking place.  Perhaps no longer.