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Another SCOTUS decision on religious liberty.


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16 minutes ago, Teancum said:

Would you be quite fine if a EV Christian excluded LDS students from such prayers because they are not Christian?

I have no idea what an EV (electric vehicle?) Christian is, but I have no right to force myself into someone else's personal religious practice. I should have an equal right to engage in my own.

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Would you be ok with a satanist doing whatever they do on the 50 yard line?

Why not? That's what genuine pluralism looks like.

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7 minutes ago, Hamba Tuhan said:

I have no idea what an EV (electric vehicle?) Christian is, but I have no right to force myself into someone else's personal religious practice. I should have an equal right to engage in my own.

Evangelical 

7 minutes ago, Hamba Tuhan said:

Why not? That's what genuine pluralism looks like.

Well at least your are consistent.

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1 hour ago, Teancum said:

It is amazing to me that the pious complain that their religious freedom s under attack. I would say hardly at all in the US.  Religion is alive and well and as we are seeing religious people are making great strides in pushing their agenda on the public on people who do not hold religious beliefs. While those with no religious affiliation is growing in the US they are still a minority. And open atheist running for public office is likely to be hampered by their lack of public belief.

I think it runs both ways. I think it is definitely under attack.  I have seen far too many things said and done that show that.  In some circles it is even vicious. But I also see other places where religion is pushed on people.  It is not an either or thing.

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I think this is interesting.  The judge profiled here serves on the Ninth Circuit, whose ruling the Supreme Court overturned.  I'm not sure I agree with everything he says, but I do think his perspective is worth considering seriously.

https://www.deseret.com/2022/6/27/23171027/a-good-judge-of-character-milan-smith-jr-george-w-bush-court-partisanship-school-prayer

Edited by Kenngo1969
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3 hours ago, Daniel2 said:

What’s good for the goose is good for the gander.

Hopefully this ruling opens the door to getting rid of the so-called “parental rights/don’t-say-gay” bills popping up around the country, as well.

It will be interesting to see how consistent this newly-conservative court will show itself to be.

🤣

Thanks, I needed that.

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Posted (edited)
3 hours ago, Teancum said:

Do his actions pull in students into the prayer? 

I'm not sure what you mean.

3 hours ago, Teancum said:

Do they feel pressure to participate? 

Apparently not:

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The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. 
...
Initially, Mr. Kennedy prayed on his own. See ibid. But over time, some players asked whether they could pray alongside him. 991 F. 3d 1004, 1010 (CA9 2021); App. 169.  Mr. Kennedy responded by saying, “‘This is a free country.  You can do what you want.’” Ibid. The number of players who joined Mr. Kennedy eventually grew to include most of the team, at least after some games. Sometimes team members invited opposing players to join. Other times Mr. Kennedy still prayed alone. See ibid. Eventually, Mr. Kennedy began incorporating short motivational speeches with his prayer when others were present. See id., at 170. Separately, the team at times engaged in pregame or postgame prayers in the locker room. It seems this practice was a “school tradition” that predated Mr. Kennedy’s tenure.  Ibid. Mr. Kennedy explained that he “never told any student that it was important they participate in any religious activity.” Ibid. In particular, he “never pressured or encouraged any student to join” his postgame midfield prayers. Ibid. 
...
There is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined. On October 16, those students who joined Mr. Kennedy were “‘from the opposing team,’” 991 F. 3d, at 1012–1013, and thus could not have “reasonably fear[ed]” that he would decrease their “playing time” or destroy their “opportunities” if they did not “participate,” Brief for Respondent 43. As for the other two relevant games, “no one joined” Mr. Kennedy on October 23. 991 F. 3d, at 1019. And only a few members of the public participated on October 26. App. 97, 314–315; see also Part I– B, supra.

(Emphases added.)

I can't help but notice the substantial concern in some quarters for covert "pressure" on students to conform to a teacher's opinions/expectations (that's not an unreasonable concern, BTW), but there seems to be little concern in about overt, plain-as-day "pressure" on students to conform as to LGBTQ advocacy (also not an unreasonable concern).

Sure would be great if we could just have teachers stick to teaching substantive topics and skills to students, with minimal incursions into teachers using their positions to politick, ideologically indoctrinate, presume to "teach" kids about matters of sexuality (a topic which often seems rather far afield from the province of a teacher hired to teach English, history, art, etc.). 

I grew up in Utah County (American Fork and Highland).  IIRC, 85% of the student body at my high school was enrolled in seminary.  With one notable exception, none of my teachers noticeably imported their sociopolitical views into classroom instruction.  My math teacher taught math.  My English teacher taught us reading and writing and grammar and such.  My biology teacher taught about cellular division, Punnett squares, and so on.  My Ancient Civilizations teacher taught that subject.  In hindsight, I can honestly say that I had no idea then, and do not now know, the sociopolitical preferences, ideologies, religious beliefs, etc. of almost all of my junior high / high school teachers.  And I think my education was the better for it.

The "one notable exception" was that my band teacher allowed the Marching Band to gather for a group prayer just prior to a competition.  We also had an unofficial song we listened to and sang along with after the last performance each year, "Friends (are Friends Forever)," which has some plainly religious lyrics.  My recollection is that the band teacher did not organize these things, nor did he seem to participate.  While these are good memories for me, in retrospect I could see how they might have made some students uncomfortable.  I do not, however, see them as having implicated the Establishment Clause.

3 hours ago, Teancum said:

Will a LDS student or Islamic student or atheist student be ostracized if they don't participate? 

First, I think such hypothetical ostracism is difficult to use as an actual or preemptive basis to prohibits certain types of speech.

Second, such ostracism, if it arises, would likely be a civil rights violation.  

Third, such actual (as opposed to merely hypothetical) ostracism could well have an impact on the legal analysis of a particular case.  In this one, though, there was no such ostracism or reasonable concern about it (see above).

Fourth, the Kennedy decision is as much a "Free Speech" ruling as a "Free Exercise" ruling, and perhaps even more so.  The First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506.

Fifth, there are a few different analytical constructs SCOTUS uses when evaluating Establishment Clause cases where, as here, the government has curtailed or punished religious activity of its employees based on a concern that such activity will amount to governmental "establishment" of religion, preferential treatment of one religion over another, etc.  Honestly, I can't really say I'm totally up to speed on this area of the law, as it is pretty specialized and not a part of my practice.  However, here are some of the main beats:

The Lemon Test:

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Lemon v. Kurtzman, 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States.[1] The court ruled in an 8–1[2] decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act (represented through David Kurtzman) from 1968 was unconstitutional, violating the Establishment Clause of the First Amendment. The act allowed the Superintendent of Public Schools to reimburse private schools (mostly Catholic) for the salaries of teachers who taught in these private elementary schools from public textbooks and with public instructional materials.[3] Lemon was a major precedent in federal and local courts until it was effectively overturned by Kennedy v. Bremerton School District in 2022.[4]
...

The Court's decision in this case established the "Lemon test"[5] (named after the lead plaintiff Alton Lemon),[6] which details legislation concerning religion. It is threefold:

  1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
  2. The principal or primary effect of the statute must neither advance nor inhibit religion. (Also known as the Effect Prong)
  3. The statute must not result in an "excessive government entanglement" with religion. (Also known as the Entanglement Prong)
Factors:
  1. Character and purpose of institution benefited.
  2. Nature of aid the state provides.
  3. Resulting relationship between government and religious authority.

If any of these prongs is violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

The foregoing test has, by way of other SCOTUS decisions, been modified quite a bit since its inception.  In particular, a 1984 case, Lynch v. Donnelly, has had a big impact by adding an "Endorsement Test" to the "Effect Prong" of the Lemon Test:

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The endorsement test proposed by United States Supreme Court Justice Sandra Day O'Connor in the 1984 case of Lynch v. Donnelly asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment. According to the test, a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.[1]

O'Connor wrote:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. [...] The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.[2]

O’Connor’s endorsement test has, on occasion, been subsumed into the Lemon test. In the Seventh Circuit Court of Appeals case Doe v. Elmbrook School District (2012) for example the Seventh Circuit, sitting en banc, decided by a vote of 7-3, that a school’s practice of holding graduation ceremonies in an evangelical church violated the First Amendment’s Establishment Clause.[3] In this context the Seventh Circuit stated that “[t]he three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U. S. 602 (1971), remains the prevailing analytical tool for the analysis of Establishment Clause claims.”.[4] It then explained that the endorsement test has become “a legitimate part of Lemon’s second prong.”[5]

Additionally, there appears to have been a 2014 case, Town of Greece v. Galloway, which may have replaced the Lemon test, or else modified it even further.  From the Kennedy decision (link) :

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In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’ ” Town of Greece v. Galloway, 572 U. S. 565, 576. A natural reading of the First Amendment suggests that the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13, 15. An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “‘exception’” within the “Court’s Establishment Clause jurisprudence.” Town of Greece, at 575. The District and the Ninth Circuit erred by failing to heed this guidance. Pp. 19–30. 

This case was decided long after I left law school, and I haven't had any "Establishment Clause" cases in my practice, so I haven't had occasion to familiarize myself with it (nor have I examined the Kennedy decision in detail).

Alongside the foregoing framework (which, candidly, seems a bit unwieldy), the appellate courts sometimes also use a "Free Exercise" test from a 1963 case, Sherbert v. Verner, since "Establishment Clause" cases often involve or implicate the "Free Exercise" clause:

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In Sherbert, the Court set out a three-prong test for courts to use in determining whether the government has violated an individual's constitutionally protected right to the free exercise of religion.

  1. The first prong investigates whether government has burdened the individual's free exercise of religion. If government confronts an individual with a choice that pressures the individual to forego a religious practice by imposing a penalty or withholding a benefit, the government has burdened the individual's free exercise of religion.
  2. However, not all burdens placed on religious exercise are constitutionally prohibited under the test. If the first prong is passed, the government may still constitutionally impose the burden on the individual's free exercise if the government can show
  • it possesses some compelling state interest that justifies the infringement (the compelling interest prong) and
  • no alternative form of regulation can avoid the infringement and still achieve the state's end (the narrow tailoring prong).

The Supreme Court sharply curtailed the Sherbert Test in the 1980s, culminating in the 1990 landmark case Employment Division v. Smith. In Smith, the court held that free exercise exemptions were not required from generally applicable laws. In response to the Smith decision, Congress passed the 1993 Religious Freedom Restoration Act (RFRA) to reinstate the Sherbert Test as a statutory right. The RFRA purported to restore strict scrutiny analysis to all free exercise cases in which the plaintiff proves a substantial burden on the free exercise of his or her religion. However, four years later, the court struck down RFRA as applied to Constitutional interpretation. In City of Boerne v. Flores, 521 U.S. 507 (1997), the court found that RFRA, as applied to the states, exceeded Congress's power under Section 5 of the Fourteenth Amendment. But the ruling did not necessarily limit RFRA's effect on interpretation of federal statutes. Using a parliamentary procedure known as unanimous consent, both the House and the Senate re-enacted RFRA's provisions in 2000, in conjunction with adding a similar statutory test to the Religious Land Use and Institutionalized Persons Act (RLUIPA).

As you can see, the analytical constructs used by the appellate courts are . . . complicated.  And applying them to a set of facts in one case could yield a very different result as compared to applying them to a separate and distinguishable set of facts from another case.

3 hours ago, Teancum said:

Do you think the outcome would be different if this were a Muslim doing the prayer on the 50 yard line?

Yes, but not for the reason you think.  I think the "outcome" would have been that a Muslim teacher would not have been fired or disciplined in the first place.  Mr. Kennedy, though, is a Christian, who are in some quarters of society treated with a particularized disdain and animosity reserved specifically for them.  I surmise that "woke" school district officials would never disclipline a Muslim employee for publicly expressing religious speech, nor would they discipline an employee for expressing speech advocating LGBTQ issues.  

This article sums things up well:

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Over the past 60 years, public schools have been scrubbed of religion, stripped bare in the name of the US Constitution’s establishment clause, which bars favoring one religion over others. Now the void is being filled by social-justice ideology, the left’s religion by another name. 

Why should traditional religion be discriminated against while teachers and coaches are allowed to proselytize their woke belief system, displaying gay-pride symbols and Black Lives Matter slogans in the classroom? Are children any less at risk of coercion or indoctrination by these ideas presented by authority figures whom they’re eager to please?

That’s the inflammatory context for a high-school football coach’s appeal to the US Supreme Court, which was heard Monday. Joe Kennedy, who coached for the Bremerton School District in Washington state, customarily took a knee and prayed quietly on the 50-yard line after games. Occasionally some players and attendees joined him, though he didn’t call for them to participate and he often prayed alone.

Bremerton officials told him praying within sight of students violated the establishment clause and asked him to go across campus and pray in the janitor’s office. Kennedy refused, arguing that would send a message that prayer is bad and must be hidden. The refusal cost him his job.

Kennedy’s lawyer told the justices Monday that the firing violated the coach’s right to freely practice his religion. Justice Clarence Thomas asked if Kennedy would’ve been fired had he taken a knee to protest racism. Justice Samuel Alito queried whether a coach taking a knee to protest the invasion of Ukraine or climate change or another political issue would’ve been fired.

If the reason for the firing is religion, Alito said, that’s unconstitutional discrimination.

Thanks,

-Smac

Edited by smac97
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3 hours ago, Hamba Tuhan said:

It's likewise the Indonesian word for God, but I tend to address my Heavenly Father, and that is very much an important distinction for Muslims.

One evening after work, when I explained to one of my co-workers that I believed him to be my literal brother because I believe in a Father God, he explained to me that what I had said was blasphemy to him. Then we went and got dinner at one of our favourite food stalls together. That's also what genuine pluralism looks like.

Is Indonesia, in your view, a good example of religious pluralism?

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3 hours ago, Teancum said:

Evangelical 

Well at least your are consistent.

I wouldn’t have a problem with a Satanist as long as it wasn’t something that might be traumatic for kids to see.  For a Fundamentalist Christian to refuse to allow adult Saints to pray with them is one thing; to exclude children, perhaps even young children from something their schoolmates are doing…that is another thing completely, especially since such exclusion in one thing may be picked up by kids and become exclusion in many things.  My niece was told when she was in grade 4 iirc (20 years ago) in the middle of class that she as a Mormon was going to hell (she was even required to stand up so as to be clearly seen as an example to the other kids of what not to be).  That was not a good year for her socially.  She had significant anxiety issues develop not long afterwards.  I think it quite possible this humiliation contributed.  
 

There need to be different rules for caregivers of youth when youth are required to be in a situation and can’t be protected by the presence of a parent.  I don’t see a major issue of a teacher explaining their faith to a grade 4 class, I see a major issue when it becomes not about just him, but about a student.  

Edited by Calm
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3 hours ago, Obehave said:

Attack may be an exaggeration.  Let's just say there is some opposition to the idea that people should have total freedom to express their religious beliefs either in public or privately.

If someone’s religion included sacrificing of animals, taking drugs, or walking around nude, do you believe they should have total freedom to practice such in public?

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14 hours ago, The Nehor said:

I am not worried about being “in your face”. The people on the sidelines probably don’t care that much. It is not as if they are kneeling for racial equality or some other deviant cause that inflames crowds and viewers into hysterics. No, instead my main concern is the coercive effect it has on the team members. The coach has a lot of power over the kids. Imagine if instead the coach prayed to Mecca and three quarters of the team joined him. Would this be seen as a simple and sincere expression of faith or would Christian parents start complaining to school officials?

No more coercive than the teachers who actively promote other questionable or controversial subjects.

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6 hours ago, Teancum said:

It is amazing to me that the pious complain that their religious freedom s under attack. I would say hardly at all in the US.  Religion is alive and well and as we are seeing religious people are making great strides in pushing their agenda on the public on people who do not hold religious beliefs. While those with no religious affiliation is growing in the US they are still a minority. And open atheist running for public office is likely to be hampered by their lack of public belief.

It’s significant that this originated in Washington.

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3 hours ago, smac97 said:

Sure would be great if we could just have teachers stick to teaching substantive topics and skills to students, with minimal incursions into teachers using their positions to politick, ideologically indoctrinate, presume to "teach" kids about matters of sexuality (a topic which often seems rather far afield from the province of a teacher hired to teach English, history, art, etc.). 

My state mandated that every teacher every day in every subject had to spend time on discussions about student health. The mandate held out a carrot in the form of extra money to the school for every 5 minutes of discussion in a classroom. I was selected as one of 20 teachers in our JHS who would be monitored for compliance. I received a timesheet that I had to fill out every day and give to the office manager. The first day I entered 0 in the time slot. She said, “You can’t enter a zero.” I said I had no time during the rehearsal to talk about health issues. She asked, “How long did it take to fill out the form?” I said long enough to write 0 and sign it. She said that would count as a five minute increment. And so it went.

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34 minutes ago, Obehave said:

Interesting that the only one I might have a hard time with is a community of naked people somehow becoming public.

You wouldn’t have an issue with kids seeing chickens get their heads cut off or bulls getting their throats slashed and blood gushing out while on a trip to the store? 

Edited by Calm
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1 hour ago, Obehave said:

Not really. Sounds like what farmers see and live with. Some of the best people I know are farmers. And they supply a lot of what the stores sell.

Yes, farmers expect to see the death of animals and learn when and where it happens as part of their work.  This would be very different than children who have never been exposed to it and in many cases not prepared for it accidentally happening upon it as they walk to a store or school.

Edited by Calm
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3 hours ago, Calm said:

If someone’s religion included sacrificing of animals, taking drugs, or walking around nude, do you believe they should have total freedom to practice such in public?

What religion is this? Asking for a friend.

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2 hours ago, The Nehor said:

I too have my doubts about pi being an endless number.

Prove it.

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Sorry wrong thread

Edited by Bernard Gui
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1 hour ago, The Nehor said:

What religion is this? Asking for a friend.

Three different ones, sorry…Santeria and the Native American Church for the first two, except I don’t think the NAC would actually use peyote in public.  The last is hypothetical.  I am guessing it must be someone’s religious belief somewhere though.

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1 hour ago, Obehave said:

Kids raised on farms would not find it shocking, I think.

So all kids live on farms?  Or are you just okay with shocking city kids?

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14 hours ago, Teancum said:

Because in the US we have a separation clause and while there is freedom of religion there should be freedom from religion as well.  Would you be quite fine if a EV Christian excluded LDS students from such prayers because they are not Christian? Would you be ok with a satanist doing whatever they do on the 50 yard line?

Who is forcing the non-religious to be religious?  Who is forcing non-religious people to pray with them.  Living in a society of many different views, we may have to endure seeing or hearing things we don't agree with.  We may even be offended from time to time but that is part of living in a free country. Sometimes we have to tolerate another person's or groups nonsense. 

I would be just fine with satanists doing whatever they want on the 50 year line.  Might be interesting to watch.  I would be fine with an EV group not allowing LDS to pray with them.  Why should anyone want to pray with a group that hates them.  I appreciate the honesty.   I am so over seeing the rainbow flag but I am not going to sue people over it.   If people want to fly their rainbow flags around, whatever.  I will just view the flag to refer to the Noah flood over LGBT stuff. 

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6 hours ago, Calm said:

You wouldn’t have an issue with kids seeing chickens get their heads cut off or bulls getting their throats slashed and blood gushing out while on a trip to the store? 

You never cut off a chicken's head as a kid?

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