In 1892, a Massachusetts policeman challenged in court a law forbidding police officers to be political activists. The justice, who had the battle of Antietam in his past and 29 years on the U.S. Supreme Court in his future, was unsympathetic. Oliver Wendell Holmes Jr. said the policeman had a constitutional right to be politically active but not to be a policeman.
Since then, protections of the rights of public employees have been expanded. They were again Monday in the case of the Bremerton, Wash., public high school assistant football coach. Joseph Kennedy thinks the First Amendment guarantee of free speech and the “free exercise” of religion protected his practice of taking a knee for postgame prayer on the 50-yard line. And he thinks that if his school had continued to tolerate this, as it did for his first seven years as a coach, the toleration would not have constituted endorsement of religion in violation of the First Amendment proscription of the “establishment” of religion.
On Monday, the Supreme Court agreed with him, 6 to 3. Cue the alarms from those secularists who bring religious zeal to their crusade against the incipient theocracy they detect in every religious observance allowed in the public square.
One can, however, understand the Bremerton school district’s skittishness about the coach’s kneeling and praying quietly, especially because, over time, he was joined by players and spectators, unbidden, after games. (He had stopped leading group prayers in the locker room.) Attention from media and politicians intensified worries that prayers by the coach — a government employee at a public school event — would be deemed government speech endorsing religion. And that players and other students might feel coerced to conform to the coach’s practices.
Nevertheless, Justice Neil M. Gorsuch, joined by justices Roberts, Thomas, Alito, Kavanaugh and Barrett, wrote that the risk-averse school district, which terminated the coach’s employment, tried to avoid one constitutional violation, but committed another. Seeking to avoid seeming government endorsement of religious speech, it violated the coach’s rights of free speech and free exercise of religion. Gorsuch argued that no reasonable observer would have concluded that the specific actions for which the school district disciplined the coach — brief, quiet and solitary prayers after three games — were the government speaking.
Gorsuch noted that the free speech and free exercise clauses “work in tandem,” protecting both expressive and noncommunicative religious activities: “That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.”
Dissenting, Justice Sonia Sotomayor, joined by justices Breyer and Kagan, noted, accurately, that “students face immense social pressure.” Sotomayor, however, simply asserted this: The fact that a majority of his players eventually joined what had been his solitary prayers showed “coercive pressure at work.” Oh? The school district said it had “no evidence that students have been directly coerced to pray” with the coach.
Besides, part of growing up is learning to surmount pressures toward conformity. This part is missed by young people who are intimidated by social media, who feel “unsafe” around heterodox beliefs and who are shielded from situations in which they must develop a capacity for independent judgments.
How far would the three dissenting justices go to protect students from feeling pressured by the observable religious behaviors of authority figures? What if a teacher bows her head in prayer before beginning lunch in the school cafeteria? Ever-more-minute legal scrutiny of religious behaviors is a recipe for migraines and anger.
Our cranky nation, with its constant surplus of truculence, could benefit from a smidgen of Thomas Jefferson’s live-and-let-live spirit. He was at most a Unitarian (understood as the belief that there is at most one God). As president, however, two days after he wrote the letter endorsing a “wall of separation” between church and state, he attended, as he occasionally did, religious services in the House of Representatives. (Services were held every Sunday in some government buildings.) He was respecting beliefs he rejected.
In “Notes on the State of Virginia” (1785), Jefferson had written, “It does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” The court’s decision for the football coach should cause timorous adults, and the fragile young people they shape, to stop fueling today’s cancel culture and the demands for “safe spaces.” Mere exposure to another’s belief does them no injury.