The court's liberal wing has no desire to overturn the court's precedents, but its conservatives want to focus on accommodating religion in public schools and other public institutions.
The parties included this image, of Coach Kennedy praying with a crowd after the homecoming game, in their joint appendix submitted to the Supreme court
Lawyer Paul Clement, representing the coach, told the justices Monday that Kennedy's 50-yard line prayers were"private speech" protected by the First Amendment guarantee of free speech and the free exercise of religion. The prayer, he contended, was much like an player crossing himself after making a touchdown.
Justice Stephen Breyer, not so subtly, wondered why the court should be deciding this case at all at this point in light of the disputed facts in the case."My problem with this case." he said, is that the record would seem to indicate the case"may be about facts and not really much about law." Lawyer Clement, representing the coach, stressed that while the court has largely abandoned the endorsement test, school districts all over the country still rely on it."It's a stubborn fruit," he said."I don't think just pushing a pencil through it has done the trick. I mean, you really have to slice it in half."
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