Religious Freedom Is Still Impossible

Cutting the Establishment Clause down to size is easy. Defining the limits of Free Exercise is harder.

Reading the decision and the dissent in Kennedy v. Bremerton School District makes for a fascinating game of Rashomon.

According to Justice Gorsuch’s majority opinion, Joe Kennedy, the high school football coach, when informed by the school district that he was engaged in conduct that might expose the district to a lawsuit under the Establishment Clause of the First Amendment, complied readily with nearly all of their demands. He would no longer lead prayers in the locker room, nor publicly pray with players on both teams at the end of games, nor give motivational speeches with overtly religious themes and content. He asked only to be allowed to conduct a silent prayer of his own on the field at the end of the game, which he felt a personal obligation because he had made a commitment to honor and thank God promptly for His assistance. This was denied him, which made him feel as though he had to hide his religion in a shameful manner and violate his personal religious convictions. So he defied that portion of the policy as articulated to him, and his employment was terminated for it. If you have any sense for what it is like to feel a personal religious obligation, it sounds like a slam-dunkingly obvious violation of the Free Exercise Clause of the First Amendment.

By contrast, according to Justice Sotomayor’s dissent, Kennedy was a trouble-maker who flagrantly violated the Establishment Clause for years and, when the district found out about what he was up to and told him to stop, consciously set out to make a statement and cause a scene. He was offered the opportunity to exercise his religious convictions in a private manner, which should have sufficed if they were the issue. But he could not be satisfied with this because he wanted to draw a direct connection with his prior practice of leading public prayers, thereby compounding his earlier Establishment Clause violations. He wouldn’t work with the district to find an acceptable accommodation, but set out to become a martyr. The media were contacted to make the event as public a spectacle as possible, and not only players but also observers from the stands rushed onto the field to join him, in violation of school rules which he did not enforce. His prayer was an explicitly political act rather than an act of personal devotion, and therefore the worst possible case to use for refining the contours of Establishment Clause jurisprudence.

Quite a difference—but there’s one point on which they seem to agree: nobody complained about Bremerton’s behavior prior to the district’s reprimand. Nobody, in other words, actually sued to stop him from praying on the field on the grounds that it was an establishment of religion. On the contrary, what brought Bremerton’s original conduct to the district’s attention was a visitor who commended the school for permitting the coach the latitude to lead the students in prayer. Since they had never given him permission to do so—indeed, since that conduct was a violation of their preexisting policy—the district felt obliged to investigate and to issue their instructions that Kennedy desist. Leaving aside the constitutional question at issue—whether the district (or the Supreme Court prior to this case) was right or wrong in how it construed the requirements of the Establishment Clause—it strikes me as significant that the trigger for these events was not a local complaint or lawsuit but a district quashing an accepted local practice because they sought to avoid such a complaint or lawsuit.

The Establishment Clause is a funny bird. It was originally intended to prohibit Congress from establishing a national church and to prohibit Congress from disestablishing any state-level established churches (of which there were several at the time). In other words, it was intended as a federalist rather than a secularist provision. (It’s worth noting, though that Thomas Jefferson—who didn’t write the First Amendment but was on close terms with his author—was the origin of the “wall of separation” line that is much derided by religious liberty activists who want to pare back the Establishment Clause; his view is not dispositive by any means, but it was from the same era, and not a later innovation.) In the twentieth century, the Establishment Clause was “incorporated” along with the rest of the Bill of Rights against state governments, even though, unlike the clauses protecting free exercise and free speech from federal legislation, it does not formally protect a right at all. It is also a very rare provision for which taxpayer status is sufficient to establish standing for economic injury, and where being personally offended is sufficient to establish status for noneconomic injury. These unusually loose rules about standing fully justify the district’s anxiety about a possible lawsuit, but it’s worth remembering how different they are from what is normally required to claim standing for a constitutional violation.

I’ll lay my cards on the table: I think the requirements of historic Establishment Clause jurisprudence are incompatible with the actual practice of some of the most-practiced religion in America today, the religion of many Evangelical, Pentecostal and denominationally unaffiliated churches. For a very great many American Christians, publicly and proudly testifying to the power and influence of God—and, more specifically, Jesus of Nazareth whom they acknowledge both as Christ and their personal savior—in their lives is absolutely central to their religious practice. To say to someone like Joe Kennedy—who has described his relationship with his church as deeply transformative—that he must keep those gifts to himself at the very moment when he feels most strongly that they must be shared surely feels like a slap in the face, and a rejection of the core of his religious being. That’s the kind of feeling that, in other contexts, progressives are extremely solicitous of.

Does that mean that Establishment Clause jurisprudence needed to be significantly revised? Perhaps so—but I want to caution advocates of such a revision that doing so might not solve the problems they think it will. Popular American religiosity is going to throw up more and more conundrums for society and, potentially, the Court to adjudicate.

As I never tire of bringing up, Winnifred Sullivan’s book, The Impossibility of Religious Freedom, is troublingly persuasive. The problem with religious freedom is that religion in America isn’t an affiliation matter but an individual matter. You can easily say that anyone can be a practicing Jew or Catholic or Hindu or what-have-you, and then rely on religious authority for what a Jew or Catholic or Hindu requires. But that’s not true religious freedom, because it doesn’t admit to the possibility of being a dissenter from that religious authority—which, in American history, is a very fundamental aspect of what it means to be religiously free. Meanwhile, it’s easy to say that anyone can believe what they like. It’s much more difficult to say that anyone can practice whatever they believe. Yet for most people, religion is fundamentally about practice, rather than merely about belief. That’s true even for religions that place a huge emphasis on faith, like Joe Kennedy’s.

Sullivan’s prime example was bereaved families who wanted to put up whatever grave markers they wanted in a cemetery that strictly limited their options for aesthetic reasons. The families understood their desire to be deeply religious even though their religious leaders didn’t say it was. Those leaders have no standing, though, if the question is what those bereaved families believed and what practice they felt religiously obliged to engage in. In Kennedy v. Bremerton, the issue was whether a school official should be allowed to violate the district policy because he felt personally compelled to offer prayers of thanks in public rather than in private. Justice Sotomayor may say that there were other options, but if his exercise is truly free then the existence of those options don’t matter if they don’t satisfy him.

Even leaving absurd thought experiments like “God told me to kill my neighbor because she is a witch,” if anyone can decide for themselves what is sacred and thereby skirt communal rules, then anyone can claim an open-ended exemption from, well, just about anything. COVID, for example, threw up the serious prospect of widespread vaccine refusal on religious grounds. As I’ve argued before, these grounds are largely spurious, based on a combination of factual error and ignorance of the actual religious requirements. But that may be irrelevant if the question is simply what those objecting believe and what they feel they must do in consequence of that belief.

I’m a member of a minority religious community, the kind of person whose interests the Establishment Clause was intended to protect. But I’m not really troubled by the notion that Bremerton’s football coach would be praying to Jesus from the fifty yard line. Maybe that’s the privileged view of a New Yorker—maybe if I lived in Bremerton I’d feel differently. I don’t think I would, though. Nor am I concerned about the possibility that students at the school might be “influenced” by their coach to pray when they might not otherwise have been inclined. Indeed, I think we could all do with being less concerned about dangerous or foreign influences on our children.

But I am concerned about the increasing de-socialization of American life, our increasing tendency to demand exemptions from or even the ability to veto communal rules because of our own special beliefs and needs. I think our society should aim to be vastly accommodating of its extraordinary diversity, and if that means renegotiating the precise boundaries of official secularity, I’m pretty ok with that. But those accommodations need to be negotiated communally, not seized on the basis of right.