About fourteen months ago, in Kennedy v. Bremerton School District, the Supreme Court, in a saga that began in 2015, ruled that educational officials in Washington violated the rights of an high school football coach when they chose not to renew his contract because he refused to discontinue his practice of kneel at midfield after games. It was the Court’s first case directly addressing prayer by school employees.
In a significant modification of its First Amendment jurisprudence, finding that the board violated the coach’s rights under the Free Exercise and Free Speech Clauses, the Court began by reasoning that “a proper understanding of the [First] Amendment’s Establishment Clause [does not] require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
Acknowledging that it “long ago abandoned Lemon [v. Kurtzman’s tripartite purpose, effect, and entanglement test] and its endorsement test offshoot [from Lynch v. Donnelly],” because they were both unworkable and ultimately often to religious freedom, especially in education, the Justices ruled that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
Of course, it remains to be seen how this new standard plays out in future litigation.
After the Justices decided that the school officials violated Coach Joseph Kennedy’s rights, a federal trial court judge in Washington ordered his reinstatement. In addition, Kennedy received a financial settlement of $1.7 million from the board. Yet, surprisingly, in early September Kennedy abruptly resigned his position one game into the season, explaining that “I believe I can best continue to advocate for constitutional freedom and religious liberty by working from outside the school system so that is what I will do.”
The remaining issue after Kennedy, and the focus here, is whether people of faith can continue to remain active in public life, not just in the form religious activity (including prayer) and what role, if any, their beliefs should play in American society. As evidence of lingering hostility toward people of faith and religion in public life, in his dissent in Santa Fe Independent School District v. Doe (albeit twenty-three years ago, in a case from Texas wherein the Supreme Court invalidated student-led prayer prior to the start of high school football games) a dismayed Chief Justice William Rehnquist expressed the sentiment of many Americans when he stated that “[t]he Court … bristles with hostility to all things religious in public life.”
An example of concern for freedom of religion and the rights of people of faith emerged eight years ago in Obergefell v. Hodges wherein the Supreme Court, in an opinion by Justice Kennedy, discovered a heretofore unknown right to same-sex “marriage”. In light of what he apparently suspected would be concerns about the status of religious freedom, Kennedy’s unpersuasive comment in dicta making same-sex “marriage” the law of the land emphasized that religions, and “those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths…”
Yet, as evidenced by Justice Alito’s dissent, Kennedy’s words apparently did little to allay the concerns of people of faith. Alito feared that the Supreme Court’s pronouncement “will be used to vilify Americans who are unwilling to assent to the new orthodoxy . . . by those who are determined to stamp out every vestige of dissent.”
Questions emerge, therefore, about what can be done to allow individuals on both sides of the challenging questions surrounding human sexuality, to disagree, even vociferously, but not be personally disagreeable.
Hostility certainly remains. Federal and state officials who have sought to limit the ability of medical professionals to exercise their conscience rights by refusing to perform abortions and gender reassignment procedures. People of faith are denied opportunities to adopt or serve as foster parents. The argument can be made that the United States has lost its way with regard to this fundamental right under which Congress, and by extension, states “shall make . . . prohibiting the free exercise” of religion.
Until recently, the Supreme Court has generally adopted a position supporting the “wall of separation” metaphor, particularly as applied to education without being overtly hostile to religion. Clearly, the Court has not encouraged the venomous language voiced by some foes of religion. Still, one must ask whether the Court’s separationist views helped to create a culture in which narrow-mindedness and lack of respect for religion grow and even thrive. Although the Court has begun to push back against the “wall” metaphor in support of religious freedom with decisions such as Kennedy and on granting greater aid, most recently in Carson v. Makin, wherein it upheld a program from Maine designed to pay tuition for parents enrolled them in faith-based schools because their own boards did not operate secondary schools, more needs to be done.
Recognizing that religious beliefs represent the breadth of human diversity, it is essential to recognize the hostility to religion displayed by some critics, particularly in educational contexts–even as they continue to call for other forms of cultural, racial, ethnic, and political diversity. What happens in schools is significant, because it reflects the status of the larger society. Educators can advance respect for diversity by teaching students that while they are free to disagree with those not sharing their beliefs, they must do so without rudeness or a lack of civility, particularly in school settings.
First, tolerance and respect are two-way streets. But a growing body of litigation reveals efforts to compel Christians, even where alternatives are available, to violate their sincerely held religious beliefs by providing services for individuals with whose lifestyles they disagree. And protesters have disrupted guest speakers on campuses with whom they disagreed, often preventing them from expressing their views.
If individuals on different sides of issues can engage in serious debate, there may be a mutual growth of respect even if they cannot come to full agreement as they learn to agree to disagree respectfully.
Secondly, rather than avoiding discussions of religion and matters of faith seemingly at almost all cost, curricula from early primary school through higher education should include at least one mandatory course requiring students to learn about other faiths. Requiring such a class is consistent with a recommendation from a recently conducted national longitudinal measure,
Third, again, while all individuals should be free from discrimination, efforts at pursuing equity must go both ways. Yet, in seeking to enact anti-discrimination laws, a serious question emerges over whether people of faith can be made to violate their consciences or shouted down by their opponents.
Religion and respect for diversity in its many manifestations are clearly important in a truly democratic society. Only by having mutual respect can individuals and groups learn to disagree without being personally disagreeable. Is that still possible today in the United States?
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Yours truly has followed the Bremerton School District case from the very beginning, living only a few miles to the east across the waters of Puget Sound. Good final outcome.
But, again, while the First Amendment of the Constitution applies to Congress and to the states, the Founding Fathers lived in a coherent universe, and it never occurred to them to restrict not only Congress, but also the Executive and Legislative branches of government. Hence the novelties of infanticide and open-bar restrooms under Biden, and redefined “marriage” under the bi-sexual Justice Kennedy.
And historically, as is well known, the “wall of separation” first imposed in Everson v. Board of Education (1947) and McCollum v. Board of Education (1948), is not found anywhere in the Constitution (1787). But. rather, is cherry picked from an obscure letter from Thomas Jefferson to a group of Baptists in Connecticut in 1802.
A reminder of the long shadow we now suffer, in an ecclesial context, from unofficial press interviews conducted on airplane trips. Butt—and now citing such a lofty precedent—”who am I to judge?”
Thanks, Peter.
And, if you look at the history, Black’s use of the was as a Trojan Horse. I write this because his son indicated how much Black disliked Catholics (and others) as the wall blocked most aid until Agostini and the last 6 years.
Charlie
Where was the USCCB on this?
There isn’t a temporal or civic matter than can’t offer a missive upon.
Maybe if the coach was an illegal alien, they might have militated foe him.
And if he’s not Catholic, think of the ecumenical value of it.