SUPREME COURT ANNOUNCES "BRIEF LULL" DOCTRINE

Even though he was a publicly employed high school coach; and even though he was at a publicly sponsored school event; and even though the event took place on public school property; COACH KENNEDY'S personal private kneel n' pray during a lull in the game did not violate the Establishment Clause, but came under the protection of the Free Exercise Clause, because he did not offer his prayers during the "scope" of his employment....

OR..

as Alito, J. put it, he offered his prayers "when a brief lull in his duties apparently gave him a few free moments to engage in private activities." So.....lessee here. At five minutes to bell, Ms. Simpleswaithe, answers a little ringtone on her cell phone (to the tune of Guide us, Thou, Oh Great Jehovah) and in her personal lulling capacity, says:

...Oh Lord and Savior Jesus Christ, only Son of God Creator of all things, and Great Guide to us Thy humble, faithful Servants, we thank Thee for this opportunity, following in your footsteps, to guide these young minds entrusted unto us in the ways of knowledge and righteousness, to the glory of Thy Your Holy Name.

AMEN/RRRRRRIIIIIIING.

So, what will follow now is a string of "case-by-case" jurisprudence defining the content and contours of "brief lulls." How brief is brief how lull is lull. And if you think lawyers can't turn this into several volumes of blah blah blah, think again.

As Sotomajor, J., pointed out in her dissent, the majority's opinion was cavalier with the facts. (I'm not sure that was the word she used...) So what were the facts on the ground?

Coach Kennedy made his kneel-and-pray at the end of the game, giving thanks to the Almighty Ruler of the Universe for his team's victory. Let us assume without futher ado that this nonsense qualifies as "religious practice." Far be it from us, etc., etc.. The point is, he did the thing at when the game was over, not at half time, not during a break to change players, not during the pause between national anthem and concession announcements.

Lull 1. n 1. Abatement of noise or violence; momentary calm; subsidence of tumult. (Funk & Wagnalls Standard English Dictionary (1937), New York/London. p. 1472)
Abatement. 1. The act or process of abating; or the state of being abated; decrease, amount of reduction. SYN. decline, decrease, diminish, ebb, lower, mitigate, moderate, reduce, subside. (Id. p. 3.)

(I always use old dictionaries because modern dictionaries take their definitions from the nearest potted out hippie or bro on the block.)

It will be noted that a "lull" is not the same thing as a "break" or a "pause." So it was not as if the kneel n' pray took place while there was a time out for everyone to go get hot dogs or take a pee. The game (which Kennedy was hired to coach) was still on. It was just on at a lesser intensity. But how can that be? The game was over. So what was the "lull" in? If not in the game then what else was left other than "time-on-the-job." But nothing in the opinion indicates that Kennedy's duties were over at that point or that he had clocked out. He was praying on the job pure and simple. But that's not what the majority opinion stated. It said very clearly that "he did not offer his prayers during the scope of his employment."

Without resorting again to Funk & Wagnalls, the word scope has definite, special legal meanings. In the context of employment it can refer either to (a) clock time on the job or (b) the performative duties envisioned in the job (what most people know as their "job description."

If the Court meant "scope" in the second sense, then the opinion would be circular nonsense. It would be tantamount to holding that because Kennedy's prayers were not part of his job description his praying was not within the scope of his job and were OK when done on the job. If this is the case then any government employee can pray loudly anytime because the prayer, after all is not within the "scope" of his job.

Giving all benefit of doubt to the highest judges in the land, they could not have meant scope in this sense. Indeed, the fact that they used the word "during" indicates that they meant "scope" in the sense of clock-time. That is at least something; but the indisputable fact is that coach Kennedy was still on the job. He still had to to shepherd his minions into the locker room, de-brief them, give them pep talks and whatever. There is no indication that Kennedy did not bill and was not paid for the 30 seconds he took to pray. So, indisputably he was praying loudly and ostensibly while on the job; something that was not and could not be within the performative scope of his employ.

So, yes "cavalier." But does it matter? One ripple in the highway of flawless jurisprudence surely does not matter. Actually it doesn't.

The rule of law governing precedents is pretty clear and long established: the holding of a case, the rule it promulgates is "bound by the facts of the case." To give a very simply example. If a decision announces a rule about "animals" -- ("We hold that animals must be..." etc.) -- but the facts show that only a pig was at issue before the court, then the rule of the case is limited to pigs. One can argue that the rule should be extended to horses or goats, but the rule itself is about pigs and pigs alone.

So in this case, the Court decided an abstraction. The majority told us that the kneel-in-pray was not done while on the job. Alito told us that it was done during a lull in the job, by which he obviously tried to insinuate that it was done during a break in the job. Okay. Since the Court says that those are the facts on which it is basing its rule, what's the problem? None. Absolutely none. Can anyone have a problem saying that individuals in public employ can pray while not on the job? Not in my view. On the contrary, I would say that of course they can. Anyone should be allowed to pray on their break. So the case is no big deal.

Except... does the Supreme Court really take up cases that are "no big deal" ? One might think they had better things to do. And indeed, whether they are better or not, they are doing it. This is how it works. It is called laying the groundwork.

This case goes to stacks (of law books) standing for the principle that a public employee can pray during a "lull" or "break" or "off time" in his job. Forget all the other facts. They don't "exist" because the Court ignored them and did not craft or base its ruling on them.

Two years down the road, a case comes before the Court, in which Ms. Simpleswaithe begins the class (after the bell has rung) with the above recited prayer. All breaks are over and the only thing that is scheduled is her instruction in sixth grade grammar. ("Give us Oh Lord, the light to see the difference between a noun-gerund and a participle. Amen.") the present Court will decide that this is permissible. The opinion will read something like this:

"Although in Kennedy, we held no more than that a public employee could pray so long as the prayer was not undertaken during the scope of his duties, the facts of the case showed that the petitioner in that case had only prayed during a lull in his duties but was otherwise still performing work he was hired to do. We see no reason now to draw an artificial distinction between... " etc. etc., blah, blah, blah.

In other words, the facts that they now ignored, will become the "backdrop" for extending the rule at a future date. That's how judges do these things. They've done it like from time immemorial. It's what makes the law such a cavalier profession

Jack, We hardly knew Y'a...

Not by coincidence, I'm sure, but a photograph of Jack Kennedy and his life long friend Lem Billings got posted on my Facebook Feed.

Of course they were just two guys horsing around. But the horsing just as obviously had a sexual inuendo. And what that means is that they were friends who did not let sex come between them.

You see, Lem was gay or, as they would have said back then and being as polite as possible, a "homosexual."

Considering the era and considering that Jack was Roman Catholic, I think it's amazing how enlightened he was and how he did not let the small matter of Lem's orientation preclude all the other things two men can agree on, share and enjoy with one another.

But the thing that drew them most to one another was one another. Lem actually repeated his last year at Choate so that he could graduate in the same class as Jack. After graduating the two took the Grand Tour together.

During the war the two were sent to different theatres but once the war was over Lem was back at Jack's side. He was completely accepted by the Kennedy's and was so much a fixture in the family that Ted Kennedy at first did not realize that Lem wasn't one of his older brothers. Nor did things change when Jack married Jackie. Lem was so much a part of the family circle that he did not even need a pass to the White House where he had his own room.

People inevitably wonder if Jack and Lem might not have had sex. Others state that Lem was asexual. I am not impressed by such agenda-driven inferences. As close as they were in the virility of youth it is not believable that the subject of their respective sexual desires did not come up. And what if they did engage in some sexual "exploration"... so fucking what? What the fuck does it matter?

Jack had no interest in Renaissance art (of that we can be sure) and Lem had no interest in politics (or so we are told). It is impossible to think that Lem was not sexually attracted to Jack. Kennedy was young and good looking; Lem was... well young and male. It is also hard to imagine a womanizer like Jack being sexually interested in guys. But who knows? maybe, for Lem's sake, he gave it a try, whatever "it" might have been. But again, so what? It certainly didn't change Jack's orientation and just goes to show the harmlessness of it all.

What we do know from what is obvious is that they enjoyed and therefore were interested in one another as... as what? as men, as just two guys.

Maybe Jack needed a listener... maybe Lem need to be confided in. Maybe it was simpler than that; maybe they just laughed at the same things. Laughter, the gift of the gods.

Looking at the photo, I'm glad they were friends and I'm glad they were being silly.

My only regret is that the relationship was not talked about or known. Given how Jack was so admired,think of how many gay men would have had their burden of shame and secrecy lifted, if they had only known that their hero did not hate them for what they were.

Jack, we hardly knew ya.


©2022, WCG

Frankly Nancy, I don't give a Damn

The New York Slime whines and groans about the threat Trump posed to "our democracy." The only thing honest in this exercise in editorial hysteria is the word "our" because the only thing Trump threatens is the Demorat lock on power, position and privilege.

Let's face it; American elections are a sordid farce. Districts are gerrymandered to entrench incumbents, a busy network of insects-in-the-grass insure ballot stuffing and miscounting at the precinct level and an equally busy network image consultants and professional bribers work to put lipstick on pigs and shove dildoes up swines asses. To top it all off, a federal constitutional system insures that the majority of anything never gets to rule, except in circumstances so exceptional as to amount to a systemic failure (at maintaining deadlock and oligarchy, that is).

Let's take a step further back. Since 1970 the real income of the American worker has flatlined. In fact, in real terms average hourly earnings peaked more than 45 years ago: The $4.03-an-hour rate recorded in January 1973 had the same purchasing power that $23.68 would today. [Link]  Since year 2000 wage increases have remained flat for everyone except the top 10% and some slight rise in the 75th percentile.

A closer look. Between 1947 and 1979, the average real hourly wage grew 2.2 percent per year. From 1979 to the present, average growth fell to 0.7 percent per year. However, that is just the average. For middle wage workers inflation adjusted growth was just .4 percent per year and for low wage workers, 0.2 percent -- a virtual zero. In contrast, real wealth for the top 10 percent has soared. [Link]

In terms of net worth, the picture is even more grim. In 2021, the top 10 percent of Americans held nearly 70 percent of U.S. wealth, up from about 61 percent at the end of 1989. The share held by the next 40 percent fell correspondingly over that period. The bottom 50 percent (roughly sixty-three million families) owned about 2.5 percent of wealth in 2021. 

In terms of income inequality, the U.S. lags behind only Brazil and some shit-hole African countries. It is on par with Mexico. Even Russia has more income equality. And all this is based on government figures which we all know are cooked to make the situation look better than it is.

 

And those are just the metrics. In terms of quality of life America sucks. While the upper 10 percent live lives of professional privilege, sybaritic plenty, technological creature comforts and spiritual narcissism, the vast majority of Americans are undereducated, overweight, stupefied by mass media, drugs or religious insanity and totally bereft of any opportunity for civic participation and social validation. If you doubt my diagnosis: just waddle into any Walmart on pay day.

Every president since Lyndon Johnson has been a creep or a scumbag, and that includes Jimmy Carter with all his goodie do-good Baptist yap about learning to lower our expectations. Oh the humility! Imagine when Lyndon is the best you can remember.

As for the parties: same shit, different icing. It ought to suffice to say that almost every member in Congrease is in the top 1% of wealth-hoarders. Even the newbies who from out of nowhere jumped on the bandwagon are in the top 5%. They don't care about you because they don't suffer as you do.

Let's be honest. How much does anyone care about some bloated-tummy starving baby in some drought stricken fourth world country? You look at the picture, think "Oh that's awful." You say to yourself something ought to done about it, and then go and get your latté at Starbucks. And so it was that when, two years ago, people were lining up for miles at food distribution points, Nancy Peelousi took to the air to talk about her favorite designer chocolates.

The word com-passion means co-suffering. Combat veterans have com-passion. Poor people have com-passion. The rich in Congress do not. Cannot. The Repubs say they care about the average Joe and that the way to help him is to feed the rich. Let the rich be rich! This will somehow help the poor by "creating good paying jops" Whatever jops are. How has that worked? Real unemployment is up and what jops have been created come sans benefits. Whoopee.

The Demorats say they too care about the average Joe and that the way to help him is with government programs. Well that, IMO, is actually true; but what have the Demorats delivered? Zip. Lessee Teddy Kennedy blocked a single payer health care bill back in the 70's because he didn't want Carter to get the credit. Clinton ran on shipping jops out of country and shipping Negroes to prison. His welfare reform was about on par with Britain's penal colonization policy for Australia, aka "freedom through work for scraps."

And then came the Great Magic Obambi with a mouth full of hopey dopey treacle and kitsch which the oh so multi-cultural top ten percent scarfed up like pigs at the trough. It made them feel so good to be able to vote for a minority. A minority whose first act in office was to assure bankers that he had their backs and who then went on to continue unabated Republican neo-con wars and torture programs before pushing through a Republican conceived scam to pad insurance company profits under the guise of "healthcare [sic] reform." Meanwhile the flatline and decline of real wages continued unabated.

And then came Trump whose main purpose in history was to complete the progression and prove just how nauseating, narcissistic, self-serving and corrupt American politicians could be.

And some howI should care about January 6th? Frankly Nancy, I don't give a damn

The New York Slime intones "Our duty, as American citizens, is to participate fully in this [hearing] process, by watching and absorbing the committee’s evidence and considering what it would mean for our democracy if Mr. Trump were to run for president again."

In their inimitably oblivious way, the Slime just dropped their pants. The only difference between Biden and Trump is their choice of kick-back buddy. Trump does the dirty work for one group; Biden for another. Neither group includes you or me. Whose "our" democracy? Not mine.

Both parties -- the hydra heads of corporate capitalism -- have connived to destroy the traditional trade- and industrial working class. To the extent that a working class exists it has been rolled into the military. The remainder has been reduced to a sub-proletariat scrambling to make ends meet in menial, brain dead service sector and clerical jobs.

The Demorats ran on a cornucopia of promises to materially improve the lives of the vast majority of Americans who are not in the privileged upper middle class. They have utterly failed to deliver on any one of those promises. And on top of that they have given us gas-inflation, rent-inflation, food-inflation, drug-inflation, medicare premium inflation, and interest rate inflation at the very time Americans are being forced to live off their credit cards. Now, everyone except the top tier is scrambling.

What the Slime urges us to do is to "absorb" the spectacle of scandal and intrigue that consumed Versailles in its final days, as if these had any significance for the common man.

Frankly, I don't give a damn.