What’s God Got To Do With It?

I’m not religious. As a practical matter, I consider myself an “ethnic Jew,” mostly agnostic toward the religious side, I strongly believe in the separation of church and state, and am extremely wary of those who justify policy based on their belief system.

But at the same time, I am respectful of those who believe in their religion, not because I share their beliefs but because I recognize their right to their religious beliefs. And being a member of a religion shared by a small minority of Americans, it never bothered me that the religion of most Americans, Christianity, was treated differently, better, than mine. It was the only practical way to deal with it, as there didn’t seem to be much point to keeping school open on Christmas day when only a few of us would show up.

But that was back when the free exercise of religion was considered a valued right rather than a battle line. Religion has since lost its respectability to a certain segment of society, but has become a stigmata of craziness. To assert one’s faith in God no longer evokes shrugs, but derision. To be fair, some use religion as a political weapon, some sincerely but others disingenuously. Claiming a religious exemption for whatever you prefer not to do, wearing a mask for instance, diminishes not only the legitimacy of your belief system, but bolsters the belief that religion is a subterfuge to circumvent responsibility toward others.

The Supreme Court granted cert in the curious case of Kennedy v. Bremerton School District.

Petitioner Joseph Kennedy lost his job as a football coach at a public high school because he knelt and said a quiet prayer by himself at midfield after the game ended. After considering an interlocutory petition in which Kennedy sought review of the lower courts’ refusal to grant him a preliminary injunction, four members of this Court observed that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future,” but concluded that this Court should stay its hand until the lower courts definitively determined the reason for Kennedy’s termination.

The statement also noted that Kennedy had a then-unaddressed claim under the Free Exercise Clause. On remand, the lower courts found—and the school district ultimately agreed—that Kennedy lost his job solely because of his religious expression. Yet the Ninth Circuit nevertheless ruled against him again. The court not only doubled down on its “troubling” free-speech reasoning, which transforms virtually all speech by public-school employees into government speech lacking any First Amendment protection, but reached the remarkable conclusion that, even if Kennedy’s prayer was private expression protected by the Free Speech and Free Exercise Clauses (which it undoubtedly was), the Establishment Clause nevertheless required its suppression. The court denied en banc review over the objection of 11 judges.

One of the basic objections to cert here was that the “facts” under consideration were in substantial dispute, even though the facts of a case are sanitized by appellate courts which lay them out as if there could be no possible question as to what happened. Essentially, the Supreme Court has chosen to decide a hypothetical case, where a coach knelt and prayed at midfield after a game. He didn’t make the team pray. He didn’t impose his beliefs on anyone else. But he did display his beliefs in a very public way.

Was this an educator of young people with impressionable minds using his position to appear to impose religion, to tacitly promote a religious observance in the course of his school duties, or just a human being exercising his personal beliefs?

The questions presented are:

1. Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.

2. Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Whether these questions reflect the actual facts of the case is somewhat immaterial. These will be the facts under consideration by the Supreme Court, even if they’re not really what happened below. But the Court taking the case, given its current constituency and the hyperbolic concerns that the “conservative majority” is bent on elevating religion above other concerns, such as equal rights, in the scheme of constitutional protections and exceptions creates a fear of theocracy. Will religion become a dominant right?

In the first iteration of the case, four justices issued a statement in response to the denial of cert that was almost certain to raise eyebrows, noting that the denial was due not to the issue being unworthy of cert, but to the lack of a sufficient factual determination of whether the coach was fired because of his religious display or his failure to perform his duties as coach. Another justice has since joined the Court, and there has been some controversy around her religious sensibilities.

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith — even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way. After emphasizing that petitioner was hired to “communicate a positive message through the example set by his own conduct,” the court criticized him for “his media appearances and prayer in the BHS bleachers (while wearing BHS apparel and surrounded by others).” This conduct, in the opinion of the Ninth Circuit, “signal[ed] his intent to send a message to students and parents about appropriate behavior and what he values as a coach.”

The obvious division here is between those who argue the coach can pray all he wants on his own time, but when he’s on the school clock, keep prayer out of it, and those who argue this was an innocuous choice and he had a right to take a knee and exercise his religious beliefs. But the unspoken argument is that the sides would switch in an instant had he taken a knee during the national anthem in support of Black Lives Matter, reflecting which “religious” beliefs are more highly valued by the warring tribes at the moment.

5 thoughts on “What’s God Got To Do With It?

  1. B. McLeod

    As I see these types of cases (and probably the reason for the 9th Circuit ruling) there is actually a battle in progress between adherents of religions that contemplate a supreme being, and adherents of the wokieness dogma. The wokieness has come to be functionally the same as an intolerant religion in its own left. As with imposing racism to counter racism, the proponents of wokieness seek to impose religious intolerance to counter religious intolerance.

  2. Miles

    When the religious right started flexing its political muscle, it caused an unsurprising reaction of associating religion with right-wing politics, which led to the denigration of religion generally. As you suggest, people’s need for a belief system remains as it did before, but the belief in a deity has been replace with the secular religion of social justice. Every bit as much of a religion, though they can’t see it.

    Unfortunately, religion as a whole has suffered a devaluation of worth, leaving those who just want to exercise their religion as a pariah.

  3. Bryan Burroughs

    Whew, this is an ugly case all around. The plaintiff caused a good bit of this, to the point where the school district had to respond, at which point he continued to poke them in the eye with a stick. The Ninth Circuit then made a mess of this with an overly broad, extremely chilling decision which effectively says public employees can’t make any religious expression whatsoever while anywhere close to their place of employment. Surely there was a way for the 9th to tell this guy to chill out without going as far as they did.

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