Some Thoughts on Kennedy v. Bremerton

The conservative majority Supreme Court of the United States is right now in the midst of flexing its power. Today’s release of the 6–3 decision in the Kennedy v. Bremerton School District case struck a nerve with me, even though it is hardly the most destructive in this sequence of rulings—Dobbs v. Jackson Women’s Health Organization, Vega v. Tekoh, and the likely outcome in West Virginia v. EPA are orders of magnitude worse.

In Kennedy v. Bremerton, a high school football coach lost his job for holding post-game prayers at the 50-yard line. What began as a quiet, private prayer gradually became something where he was joined by his players, which prompted the district to step in. Eventually, the school placed the coach on administrative leave and declined to renew his contract for the following year. The coach sued the school district, claiming that they violated his right to religious expression by punishing him for saying these prayers.

I am neither a lawyer nor an expert court watcher, but I wanted to write this post as both a teacher and a former high school athlete.

The coach is of course allowed to say a private prayer, and in this case I am willing to believe the coach that the two students who, he says, ever expressed discomfort with the prayers were not punished for having done so.

(The number of students who we uncomfortable even voicing their concern is the larger problem, but it is hard to prove in the absence of evidence.)

And yet, the details of this case blurred the lines between the behavior of the coach as coach and his behavior as a private citizen. The defense alleged, reasonably, that his conspicuous prayers that took place on the 50-yard line of the field while surrounded by players constituted a space where he was regarded first and foremost as “coach.” Further, he alleges these were voluntary prayers that he did nothing to lead, but there is pictorial evidence where he appears to be doing more than engaging in a private prayer while most of the students were otherwise occupied (as claimed in the case).

I dislike how the coach performatively challenged the school’s instructions to refrain from these activities, but my problem with this ruling is less about specific allegations and protestations about what this coach did and did not do and more about the broad implications of the ruling.

I played baseball and basketball through high school and, at no point that I can recall did my coaches offer a prayer. It is possible that I simply tuned some things out, but I remember awkwardly jumping up and down and barking like a dog before home basketball games. These circles, at least at my high school, were comical imitations of macho pump-up videos organized by players rather than prayer, but I can certainly attest to peer pressure to at least make a show of going along when these activities that have nothing to do with playing the sport seem to become compulsory parts of being part of the team.

Most people did not grow up in small town Vermont—when I happened to be in Texas on July 4 a few years ago and sat through a Christian prayer that led into the fireworks display accompanied by patriotic music. I will admit to laughing a few minutes into the songs when I heard the opening bars to “God Blessed Texas”—and there are a lot of people who feel more pressure from the ambient Christianity around them, whether because it is more aggressively oppressive whether they live, or because their non-Christian religion is a more central part of their identity, or because they are a more identifiably minoritized person.

That is, there are a lot of people with stories about how activities like an optional prayer in team or classroom settings alienates anyone who refuses to participate in that activity, and potentially singles them out for proselytizing, retaliation, or harassment. Whether or not the coach directly participated in those activities, their actions created an environment that enabled them.

The majority opinion in this case, written by Neil Gorsuch, emphasizes that the school infringed upon the coach’s private religious belief in its demands, suspension, and decision not to renew his contract.

(In terms of the outcome, rather than the substance, of the decision, I am particularly struck by the last point—non-renewal might have the same effect as a firing, but the mechanics are not quite the same.)

Gorsuch wrote the opinion to be religiously neutral. (He also seems to misrepresents basic facts about the case, but I digress.) Ostensibly, a Jewish or Muslim coach would have the same freedom to offer a prayer, but the situations are not comparable. The practice in question is explicitly Christian. Even if every religion prayed in the same way—and they do not—it is hard to imagine large numbers of players joining their coach in these moments in this wildly-unlikely hypothetical situation, while it is comparatively easy to imagine their parents asking that such a coach be removed.

But this is also the problem.

Basically every study shows that roughly 70% of people in the United States are some flavor of Christian, with Protestant denominations making up the overwhelming majority of those. The numbers of religiously unaffiliated are on the rise, but some number of those remain broadly Protestant, just without being affiliated with a particular church. Under these circumstances, I think it is all the more important to ensure that people in positions of authority in public institutions—whether coaches or teachers or principals—are not implicitly creating a situation where students feel pressured to either join a religious activity or be singled out by choosing not to join. To do otherwise tacitly puts the state in a position where it is endorsing the dominant religion, whether or not it deliberately chooses to do so. I fear that is the point of this ruling.

As Sonia Sotomayor points out in her dissent, such entanglements are hardly a win for religious freedom:

[This ruling] elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.

N.B. The discussion here is usually pretty light, but I’ve disabled comments on this post anyway because I don’t have the energy to field comments on this topic right now.

Pious imperialism

A recent book about the Persian Wars hit upon one of my many pet peeves with regard to discussing the ancient world. This book, which I thought was, for the most part, a fairly innocuous account of the wars between the Achaemenid kingdom and the Greek city states, had strengths and weaknesses, and I had bigger complaints about book as a whole, but one point that the author kept coming back to rubbed me the wrong way.

The author kept saying that the Achaemenid expansion (and, particularly, the invasion of Greece) was essentially a jihad or crusade—i.e. a religious imperative. He reaches this conclusion by looking at Persian propaganda that presents the king as the earthly representative of Ahura Mazda and the bringer of order to the lands inhabited by chaos. The Persian royal ideology mandated continual conquest and justified the kings’ place atop the social hierarchy, but does this royal ideology mean that there was a religious imperative for conquest that could be used to inspire followers? I think not.

To my mind, the biggest difference is that while the Persian kings crafted religion into an ideology that justified their imperialism and rule, it was, for the most part, not used to motivate soldiers. I qualify that statement mostly because an appeal to Ahura Mazda might have motivated the Persian contingents and commanding officers, but much of the Persian army in Xerxes’ invasion of Europe was not Persian and therefore it is improbable that the vision of the universe presented by Zoroastrianism would serve as a motivation for, say, Egyptians or Ethiopians. One need not totally believe that the soldiers were driven to battle by whip-wielding overseers to suggest that they religiously inspired.

In contrast, the Platonic ideal of a crusade (as it were) is a religious imperative, not just on the part of the leadership, but on the part of all followers, to wage a war of conquest for religious reasons. [This is true under one definition of jihad, too, but the issue is somewhat more complex.] Leadership can manipulate the impetus for conquest and benefit from it. Eventually religion will justify conquest if they are successful, but it is religious fervor that opens the door for conquest. In the Persian example, the step of using religious fervor for conquest is skipped.

Ultimately, the most damning fact with regard to the religious imperative of conquest is that the Persian kings gave up invasions of Greece after Xerxes’ invasion in 480. They continued to be involved in Greek politics to the extent that they can plausibly be said to have conquered Greece without an invasion, but the wars of expansion largely stopped and yet the dynasty continued to exist for another hundred and fifty years, seemingly satisfied to be a beacon of light for the territory they already possessed. There are mundane reasons for why the expansion was curtailed—dynastic infighting, rebellions, difficulties of managing such a large territory, etc—but one would expect at least one additional attempt at expansion if conquest of the entire world was a religious imperative the way this author presented it. What is left is a royal ideology that justified Persian rule as the representative of Ahura Mazda and thereby sanctioned conquest, which was not at all unusual, in the ancient world or otherwise. In fact, this sort of propaganda is hardly different than more recent justifications for invasions, bringing light to dark places in the world.

Right Energized

On August 3rd, former House Speaker Newt Gingrich spoke before a number of conservative students at John Hopkins University. The overarching intent was to foster grass-roots campaigns in order to win the midterm elections for the Republican Party, building momentum for the 2012 election. It was clear that Gingrich fervently believed what he was saying and it was refreshing to see so many 18-25 year olds dedicated to a political cause. The problem is in what was being said.

I will not take the time to counter every point that was made, or every question raised, but I am worried about this. I am worried that it is the right that is most energized this year and worried about the misleading and blind rhetoric used to arouse this support.

The Gingrich speech comes on the heels of the Texas textbook law and the spreading popularity of the Tea Party and groups that support the defense of “Western Civilization” (also a statement that came up during the speech). Closest to my heart is that one of the common denominators here is that they are all based on a limited, twisted or mistaken perception of history. Of course there is the movement to recast Thomas Jefferson as of limited importance to the creation of the United States, as well as the declaration that Western Civilization is a unique corpus challenged and destroyed by multiculturalism and integration. As an aside, at least one of the groups claims that a classical education is also a threat to Western Civilization, despite it being one of the foundations of that civilization, both temporally and in that it has for centuries formed the the core of education in Europe and America.

Universally among my colleagues at the University of Missouri, the Texas textbook reform was met with resignation as much as with outrage. It is a rather basic, if sometimes overlooked fact that all history taught in schools is constructed to portray a message, whether that is what is about the unity of the country, states rights or the value of democracy. This construction doesn’t mean that it is untrue, merely that there is an inherent bias in what is useful and what is appropriate for young people. Then, at the college level, half of what happens is that educators have to first correct mistaken impressions from high school, as well as actually educating students. The Texas reform marks just the latest high school folly to correct, hence the resignation.

Getting back to Gingrich, my first reaction is the complete mangling of ideas and labels. His basic point is that America leans to the Right, but that the Left fights from the high ground, embedded as the Left is in tenured professor positions, media, presidency, House and Senate leadership, and so on (his opinion, not mine). As such, he claims that the mass of regular Americans need to start a revolution to overthrow the elite. This should sound familiar given the history of the last 150 years and the successes and failures of socialist and communist revolutions. And then Gingrich (among others) march on to call Obama a socialist. To call liberals elitist and socialist. In this particular instance, Gingrich called Obama a secular socialist.

This is my second concern, on which the latest incident is the debate raging over the mosque alongside ground zero. I understand that a majority of Americans are Christian, and I strongly support the right of all Americans to worship freely as they see fit. My issue is the suggestion that the United States was founded as a Christian country and it is this Christian foundation that guarantees civil liberties, including freedom of religion.

Christianity ensures freedom of religion.

Leaving alone that Christianity is a religious umbrella that comprises hundreds of different, sometimes mutually unrecognizable groups, the idea that it is a religious tenet to encourage other religions to worship as they see fit is unfathomable to me. This is not to say that individual Christians or Christian groups do not now recognize this right in other groups and other religions. The issue is twofold: 1) Their religion is right (as many claim) and therefore other religions should not be recognized; 2) If their religion is not the only one that is right or doesn’t have the whole Truth or the sole right to exist, how is it that their religion is the one that is so graciously granting the right to existence to those others?

Then there is the argument that one of the problems with Obama is that he is secular. Gingrich bluntly declared that secularism–rejection of Christian belief–is one of the underlying causes of dictatorships. Because no Christian nation has every oppressed its citizens or started wars, and there has never been a Christian dictatorship. As far as I am concerned God-given rights may as well be the same as natural rights. In either circumstance the rights are granted by the creator, in whatsoever guise that Creator is viewed. The rights are not ensured because we are a nation composed mostly of Christians founded on Christian ideals, but we are a nation of religious freedom because we are a nation that came together from multiple denominations.

This brings me back to the proposed mosque in Manhattan. I understand the argument Gingrich raised about Muslim countries (Saudi Arabia) not permitting synagogues and churches, but that is not a valid reason to limit religious freedoms here. This is exactly the argument Tom Friedman makes in his August 3 column. His argument is the same as mine: this is a display of openness and inclusion that is all but unprecedented. It is also a symbol of recognition that it was not “Muslims” who attacked the United States, but particular extremists. Yet people come out and basically claim that a mosque is sacrilege because Muslims or Arabs attacked the United States and while we support religious freedom, we do so everywhere except that piece of real estate. On top of it all there is increasing rhetoric about Sharia Law being instituted, supposedly as an insidious scheme to supplant the Constitution.

I have no issue with what people do. I have no problem with what people believe. So long as those two do not infringe on my person. I also find a lot to be admired in the conservative platform–small government, safety, lower taxes (although if there will be lower taxes, the savings should be equitably balanced), states rights and individual freedoms. I just cannot stand hypocrisy, including, but not limited to the dual standard between Bush and Obama, and individual freedoms everywhere except Patriot Act, marriage law, and abortions. I admire people who stand by their convictions, except where those convictions made without enough information. My greatest fear and what I find most depressing in America today is the thorough, unapologetic ignorance that exists. In a sense I believe in some sort of American exceptionalism, but in our constitution and because, historically, American creativity, ingenuity and ambition has achieved great things, not because being American is inherently exceptional.

Education and information are the keys to all of this. The problem is that if people are unreceptive or uninterested, education and information are limited.