Free Speech for Some—But Not for Christians?

If she were Wiccan and had used a quote from her 'religion' there would have been no problem, but there's no war on Christianity, right?

From Catholic World Report

By Charles J. Russo

It is imperative for all to respect religious freedom by affording believers opportunities to express themselves freely in situations such as Loudoun County rather than exclude such religious speech from public life.

Can public school teachers make their faith known in public? As evidenced by a recent incident in Loudoun County, Virginia, controversy and confusion over this point—fueled by educators’ lack of understanding of recent Supreme Court precedent interpreting the First Amendment right to the free exercise of religion—are plentiful. This situation arose when officials informed an as yet unnamed public school teacher that she could no longer post the quotation John 3:16, “For God so loved the world, that He gave His only begotten Son, that whosoever believes in Him should not perish, but have everlasting life,” as part of her signature block on her work email account.

At the same time, officials in Loudoun County allow other employees to “to personalize their signature blocks with personally-selected pronouns, quotations, pictures or phrases that are intended to express the teachers’ personal views on a variety of subjects, and that are attributable to the teachers, and not necessarily to” the board.

Moreover, officials rejected the teacher’s suggested compromise that would have allowed her to post a verse from the Book of Proverbs, 22.6: “Train up a child in the way he should go and when he is old, he will not depart from it.”

Officials in Loudoun County responded that the because the teacher’s religious quotes appeared at the bottom of her work email messages when communicating with parents and students in her official capacity, she was not engaged in private expression. A letter from the district superintendent specified that the teacher’s messages “constitute school-sponsored speech bearing the ostensible endorsement of the School Division particularly when such emails reflect the ‘lcps.org’ email domain.”

What the officials in Loudoun County seemingly failed to grasp is that starting in 1981 in Widmar v. Vincent (Widmar), the Supreme Court ushered in a new era by treating religious speech as a subset of wider free speech. The Justices found that when officials at a state university made facilities generally available for activities of registered student groups, they could not prevent faith-based organizations from gathering due to the religious content of their speech.

Relying on the framework of freedom of speech in Widmar, the Justices reasoned that because more than one hundred student groups used the facilities, officials created a limited open forum for the free exchange of ideas such that they could not bar access to the religious group solely due to the content of the speech. To do so, the Court concluded, would have been a form of impermissible viewpoint discrimination. In other words, the Court clarified that once officials permit some individuals to express their personal positions, they cannot deny others opportunities to expressing their faith-based beliefs at the risk of violating the First Amendment right to the free exercise of religion.

Fourteen years later, in Rosenberger v. Rector and Visitors of University of Virginia, the Court reached a similar outcome The Justices decided that officials could not deny funding to a group of Christian students to publish their newspaper because doing so would have been impermissible viewpoint discrimination insofar as they upheld the free speech rights of other organizations.

Last year, in its first case directly on point, in Kennedy v. Bremerton School District, the Supreme Court pointed out that the private speech of educators in the workplace is not an endorsement of particular religious beliefs. Instead, the Court ruled pointed out that such private speech is protected by the First Amendment right to the free exercise of religion. The Justices held that a school board in Washington violated a coach’s rights by not renewing his contract after he ignored district officials’ directive to stop kneeling in silent prayer on the field’s 50-yard line after games. Kennedy has since been reinstated to his position.

Kennedy, a self-described Christian, who was head junior varsity and assistant coach of the varsity football team at Bremerton High School would kneel on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanksgiving. While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. The coach later added inspirational speeches, causing some parents and school employees to voice concerns that players would feel compelled to participate.

School officials directed Kennedy to stop praying on the field because they feared that his doing so put the board at risk of violating the First Amendment. Officials acted based on their position that the First Amendment, according to which “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Writing for the Court, Justice Neil Gorsuch emphasized that “a proper understanding of the Amendment’s Establishment Clause [does not] require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” While this new standard has yet to be applied, Kennedy ushered in a new era for religious expression by public school employees.

Perhaps the most significant aspect of Kennedy is that the Justices repudiated the measures it applied in earlier cases involving the First Amendment Religion Clauses, pointing out that “this Court long ago abandoned Lemon and its endorsement test offshoot.” The first, and most significant of the cases, Lemon v. Kurtzman, (Lemon) resolved in 1971, involved aid to faith-based schools in Pennsylvania and Rhode Island. An unwieldy, malleable test leading to inconsistent outcomes, the Court determined that interactions between the government and religion must pass a three-pronged test in order to avoid violating the Establishment Clause. Under Lemon, relations between the government, including school boards, had to “[f]irst have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”

In Lynch v. Donnelly, a 1984 dispute about a Christmas display on public property in Rhode Island, the Supreme Court noted that governmental actions cannot appear to endorse a particular religion. Finally, in Lee v. Weisman, a 1972 disagreement from Rhode Island about graduation prayer, the Justices invalidated school-sponsored graduation prayers as psychologically coercive; this was the only case in which the Court applied this test.

A year before Kennedy, the Supreme Court’s judgment in Shurtleff v. City of Boston also supports the rights of people of faith demonstrating that officials in Loudoun county overstepped their boundaries. In an uncommon unanimous judgment the Justices reasoned that public officials violated the free speech rights of a religious group when they refused to allow it to hang a Christian flag outside of city hall. The Court explained that because officials allowed approximately fifty unique flags to be raised at 284 ceremonies and never rejected such a request, the denial violated the group’s free speech rights insofar as the flag’s content did not express governmental speech. Similarly, by allowing other educators to post their views but denying the teacher the opportunity to express her faith, officials in Loudoun County may well have violated this teacher’s right to the free exercise of religion.

The situation in Loudoun County calls to mind Chief Justice William Rehnquist’s dissent in Santa Fe Independent School District v. Doe, wherein the Supreme Court invalidated student-led prayer prior to the start of high school football games. Rehnquist feared that “[t]he Court … bristles with hostility to all things religious in public life.” While the Court has certainly been more religion friendly in subsequent cases, others have demonstrated, if not hostility to religion, then at least a misunderstanding of the nature of religious freedom as critics seek to ban it from the public marketplace of ideas, leading to the perception that America’s increasingly secular culture is less than friendly to people of faith. In a Nation funded on religious freedom, it is unclear why so many misunderstand, and even fear, the role of religion in public life.

Looking at the situation in Loudoun County through a broader lens, critics (if not outright opponents) of Christianity are often led by those on who describe themselves and their causes “progressive” rather than liberal. If anything, their attitudes toward religion are the antithesis of the open-mindedness and inclusion they espouse as they reject ideas not conforming with their own by largely excluding people of faith from the marketplace of ideas, evidencing the hostility to which Rehnquist referred.

While many progressives proclaim the need for diversity, this tolerance extends almost exclusively to topics with which they agree while excluding other forms of diversity, such as religion. Ironically, in so doing, these progressives risk creating a closing of the American mind with regard to religion.

Indeed, as evidenced in Loudoun County, many of those who proclaim diversity as a virtue brook little or no dissent from those with whom they disagree on a wide range of issues as they exclude even the vestiges of traditional religious values or any mention of God in public schools. In like manner, critics are attempting to restrict religious speech and activities on campus in higher education, a topic beyond the school of this article.

Again moving beyond Loudoun County, until recently, the judiciary has been ground zero of the culture wars over a variety of issues, including the place of religion in the larger American society. Criticizing the judiciary in Lawrence v. Texas, wherein the Court invalidated sodomy laws, making same-sex sexual activity legal in every State and United States territory, Justice Antonin Scalia proclaimed that judges have “taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

The judiciary has also set the tone for others as Scalia’s rued in his dissent in Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr wherein the Court declared that public officials could not refuse to renew the contract of an independent contractor with whom they did business because he criticized them. Scalia remarked that the “Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” As officials in Loudoun County deny the teacher the ability to express her religious beliefs, one could say that they have moved beyond where the judiciary has been in creating a country, or at least a school system, that would have been unrecognizable a generation or two ago.

Apparently aware of the concerns that his opinion would raise about the status of religious freedom, Justice Kennedy’s unpersuasive statement in Obergefell v. Hodges, making same-sex marriage the law of the land, did little to allay the fears of people of faith: “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths….”

Justice Alito’s dissent powerfully countered Kennedy’s words about post-Obergefell society: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” As shown by the situation in Loudoun County, Justice Alito’s words seem to be coming to fruition as to the treatment of people of faith in public schools. Thus, it remains to be seen how individuals on both sides of issues surrounding diversity of perspective, including religion, can come to an understanding to protect the rights of all, believers and nonbelievers.

Because inclusion and tolerance, in their many manifestations, including religion, are crucial, they must be on a two-way street. That is, while people can certainly disagree on matters of faith, it is imperative for all to respect religious freedom by affording believers opportunities to express themselves freely in situations such as Loudoun County rather than exclude such religious speech from public life. It is, then, important for all to embrace a mutual respect for people of faith, or no faith, recognizing the importance of diversity of thought, including the First Amendment right to the free exercise of religion, in public life is essential for the greater good in the hope of creating truly inclusive American communities.