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Justice Neil Gorsuch’s Radical Reinterpretation of the First Amendment
he end of the past Supreme Court term saw the release of three decisions that carry life-and-death consequences: Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade; New York State Rifle & Pistol Association v. Bruen, which rejected efforts to curb gun violence; and West Virginia v. E.P.A., which curtailed the federal agency’s ability to protect the environment. A fourth major decision of those final weeks may not hold life in the balance, but it will have radical and far-reaching consequences for the First Amendment and religious speech.
The decision in Kennedy v. Bremerton School District, written by Justice Neil Gorsuch, holds that a public-high-school football coach has a constitutional right to publicly pray at the fifty-yard line after games. Using the words “quiet” or “quietly” ten times to describe the coach’s prayers, Gorsuch dismisses any concerns that students may feel coerced to join him, as long as they are not expressly compelled to do so. The coach’s conduct, Gorsuch finds, in an opinion joined by Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, is fully protected by the First Amendment.
The First Amendment, of course, states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The establishment clause, which was cited by the school district, has traditionally been interpreted to prohibit government action that compels religious conduct, favors one religion over another, or endorses religion over non-religion. But Justice Gorsuch makes the astonishing claim that, because prayer is protected by both the “speech” and the “free exercise” references, it is “doubly protected.” This “double protection” means that the School District’s concern that the coach’s prayers run afoul of the establishment clause is outgunned, two clauses against one. Does this mean that if I (1) petition the government to (2) hold a rally supporting the (3) printing of a pamphlet about my (4) new religion, I’d be quadruply protected and could thereby trump other constitutional provisions, such as the equal protection clause of the Fourteenth Amendment? The math quickly becomes absurd.
Burt Neuborne, a professor at New York University’s School of Law, makes the compelling argument that the structure of the First Amendment is no accident. It is not a mere list of protected activities to be added to and subtracted from one another; rather, its language tracks how political ideas move from internal thought and belief to external conduct. First comes personal conviction, then public discussion and dissemination, and, finally, political action. The goal is the free expression of political will, which is essential to a functioning democracy. Neuborne’s analysis confirms what many media and First Amendment lawyers consider a truism: political speech is at the core of the First Amendment’s protections.
Protecting political speech, including speech that criticizes government officials, was the primary justification in the Supreme Court’s unanimous landmark 1964 decision in New York Times Co. v. Sullivan, which holds that government officials need to meet a very high burden of proof to succeed in defamation claims. In that decision, Justice William Brennan reasoned that, because political speech is central to democracy, “debate on public issues should be uninhibited, robust and wide-open.” According to Justice Gorsuch’s opinion, however, that long-held understanding of the central purpose of the First Amendment is wrong. In his view, it is government suppression of religious speech that is the core concern of the First Amendment, and what it was designed to protect against. Further, Gorsuch’s finding that religious speech is “doubly protected” implies that political speech—say, about voting rights or women’s rights—is only single protected.
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This reasoning reveals a disturbing strain of thought: the idea that religion is under siege, and that religious speech and religious conduct in the public sphere need to be privileged. Gorsuch, in his opinion, inveighs against a government being “hostile” to religion. He specifically objects to the idea that we might “preference secular activity” over outward displays of religiosity. Instead of considering how secularism might make government activity neutral, open to believers of various faiths as well as nonbelievers, his thinking seems to be that, because of religious speech’s “double protection,” it must take precedence. Anything less is an unconstitutional assault on religion.
Gorsuch employs the cartoonishly circular argument that, because the Bremerton School District, in Washington State, didn’t want the coach to conduct prayers with his team, it clearly does not see that behavior as part of his official duties and, therefore, his praying is private religious conduct, which must be protected from government restrictions. By that logic, any religious conduct by government employees that is not part of their official duties—a D.M.V. clerk, say, who gives out religious literature to people applying for driver’s licenses, or a clerk who tries to convince gay couples that their marriage is sinful—would become protected speech.
Gorsuch argues that, if visible religious conduct of government employees is banished, then teachers will be prohibited from wearing yarmulkes or saying a prayer of thanks over a sandwich in the break room. The fact that there’s no evidence that any government office has sought to stop an employee from saying grace over their own lunch notwithstanding, that argument is a false equivalence. Such personal conduct is worlds apart from that of a coach, who may be responsible for making college or scholarship recommendations for the students on his team, openly conducting a religious practice on the field, while players and families are watching. Gorsuch writes that there was no coercion, because students were not required to participate. (Justice Sonia Sotomayor, in a dissent, included multiple photographs showing the coach kneeling in prayer surrounded by players that are evocative of a revival meeting. Even if those students willingly joined their coach in prayer, it’s likely that some students feigned belief, or felt excluded by choosing not to join the ritual.) Furthermore, the law recognizes all kinds of situations in which implied promises or threats are sufficient grounds for legal sanctions. Ask any first-year prosecutor whether an explicit threat is necessary to bring an extortion charge.
But religious maximalism is currently all the rage on the Supreme Court. Justice Alito’s opinion overturning Roe goes out of its way to dig up arcane historical references to prove that the drafters of the Constitution didn’t intend to protect abortion. But there is an inescapable sense that the Justice’s acceptance of the validity of the belief that life begins at conception is determined by his personal religious views. Alito, too, has publicly bemoaned hostility toward religion, which he calls “secular orthodoxy,” and blamed it for what he calls anti-Catholic prejudice. Justice Barrett and her family have been affiliated with People of Praise, an insular conservative Catholic group that rejects homosexuality; practices ecstatic Christian traditions, such as speaking in tongues; and is described as a “covenant community.” She testified during her Senate confirmation hearing that her religious beliefs do not influence her jurisprudence, but also that she did not view Roe as a “super precedent.” Clearly, most Justices have religious beliefs, and there are both liberal and conservative Catholics—no one should say that religious beliefs determine political affiliation. Still, the idea that religious speech (and necessarily, activity) must be protected over and above other kinds of speech—or over secularism generally—is grounded in a belief about the importance of religion in public life. But what will happen if government employees must be free to express and act upon their religious convictions in their jobs? How does a pluralist society function in that case?
Chief Justice John Roberts famously bristled at the idea that there are “Obama judges” or “Trump judges,” insisting that members of the federal judiciary do their “level best” to be fair to those who appear before them. (When I was in law school, there was no quicker way to get cut down by a professor than to cite the Justices’ political leanings as an explanation for why they had reached a particular decision.) But perhaps a clearer distinction exists between Justices who believe that the constitutional guarantee of free exercise of religion means that government employees must be able to wield their religious beliefs unconstrained, and those who believe that, in a pluralist society, people have the right not to have the religion of others foisted upon them by government employees. As the old saying goes, “Your right to swing your arms stops where my nose begins.” Telling government employees to stop swinging their religion at the public should not be unconstitutional. ♦