Trying to make sure I understand your conclusions- you think that religious liberties are only manageable by the state when they're held by defined communities, not individuals. Consequently you think Kennedy should have won, but you wish he had appealed to a communal tradition instead of personal conviction. Right?
Not really. I think the reality is that the American conception of religious freedom absolutely entails the freedom to break from defined religious communities and thereby start one's own religious community. That's fundamental; we're not going to change that and I don't think we should want to.
But that reality *does* complicate the effort to defend a robust conception of religious freedom. If you don't go with Scalia's conclusion in Employment Division v. Smith, then I'm not sure where you draw a practical line, and you risk turning religious freedom into an all-purpose get-out-of-jail-free card.
However, I *also* think we don't have to be *quite* so vigilant about the Establishment Clause that we're policing whether a coach prays on the football field. That's just a very far cry from requiring people to tithe to churches that they don't believe in.
So, in terms of Kennedy, if someone had brought an Establishment Clause challenge to the district for Kennedy's actions, I wouldn't be upset at all if the Court had pared back Establishment Clause jurisprudence further and said no, it's not an Establishment Clause violation to *allow* a coach to pray on the field, even if he invites players to join.
But that's not what the case held because the district policy was that Kennedy could *not* pray on the field, as part of their effort to uphold the preexisting Establishment Clause jurisprudence. Since Kennedy is the one who sued, the question is whether his Free Exercise rights were violated -- and the Court said yes. But that means that the district *violated* the constitution by saying the coach can't pray on the field.
I think that's potentially a real problem. I think the district should have been allowed to say "no praying on the field" *or* to say "sure you can pray on the field." Your Free Exercise rights are not violated if the district makes a neutral rule saying officials shouldn't be praying publicly in their official capacity -- but the Establishment Clause isn't violated if the district makes the opposite rule and allows that kind of thing.
I'm not sure there's a practical way the Court could have come to that conclusion in this case, but that's my view of how those provisions should be interpreted.
Thanks for clarifying. It seems like Kennedy did reach a consensus with his community, which the authorities tried to shut down as soon as they learned about it.
This was really good. Thank you.
Trying to make sure I understand your conclusions- you think that religious liberties are only manageable by the state when they're held by defined communities, not individuals. Consequently you think Kennedy should have won, but you wish he had appealed to a communal tradition instead of personal conviction. Right?
Not really. I think the reality is that the American conception of religious freedom absolutely entails the freedom to break from defined religious communities and thereby start one's own religious community. That's fundamental; we're not going to change that and I don't think we should want to.
But that reality *does* complicate the effort to defend a robust conception of religious freedom. If you don't go with Scalia's conclusion in Employment Division v. Smith, then I'm not sure where you draw a practical line, and you risk turning religious freedom into an all-purpose get-out-of-jail-free card.
However, I *also* think we don't have to be *quite* so vigilant about the Establishment Clause that we're policing whether a coach prays on the football field. That's just a very far cry from requiring people to tithe to churches that they don't believe in.
So, in terms of Kennedy, if someone had brought an Establishment Clause challenge to the district for Kennedy's actions, I wouldn't be upset at all if the Court had pared back Establishment Clause jurisprudence further and said no, it's not an Establishment Clause violation to *allow* a coach to pray on the field, even if he invites players to join.
But that's not what the case held because the district policy was that Kennedy could *not* pray on the field, as part of their effort to uphold the preexisting Establishment Clause jurisprudence. Since Kennedy is the one who sued, the question is whether his Free Exercise rights were violated -- and the Court said yes. But that means that the district *violated* the constitution by saying the coach can't pray on the field.
I think that's potentially a real problem. I think the district should have been allowed to say "no praying on the field" *or* to say "sure you can pray on the field." Your Free Exercise rights are not violated if the district makes a neutral rule saying officials shouldn't be praying publicly in their official capacity -- but the Establishment Clause isn't violated if the district makes the opposite rule and allows that kind of thing.
I'm not sure there's a practical way the Court could have come to that conclusion in this case, but that's my view of how those provisions should be interpreted.
Thanks for clarifying. It seems like Kennedy did reach a consensus with his community, which the authorities tried to shut down as soon as they learned about it.