Discover more from Refounding Democracy
Freedom of religion vs. 'Religious Liberty'
YouTube live stream Saturday, June 3, 10:00 a.m. US Eastern Time
Football coach Joe Kennedy leading players in prayer in 2015. Video screen grab, via Religion News Service (2022).
In September, 2015, officials of the Bremerton, Washington, School District ordered an assistant football coach, Joseph Kennedy, to cease his practice of leading students in post-game Christian prayers on-field, and in other settings on school grounds. Kennedy persisted. He was fired. He sued.
The case of Kennedy v. Bremerton School District was finally resolved last June, with a landmark ruling issued by the U.S. Supreme Court. By a vote of 6-3, the Court’s ascendant conservative majority ruled for Coach Kennedy, holding that the government may not curtail an individual’s “private religious exercise,” even when the individual was acting, as in this case, in an official capacity and on public facilities.
The ruling overturned a half-century-old precedent, the 1971 case Lemon v. Kurtzman. The Lemon case established guidelines that constrained officials and employees of state institutions from advocating for religious beliefs while in their official roles.
The shift from Lemon to Kennedy parallels an effort by Christian thinkers to change how the public and the legal community understand how the Constitution regulates the role of religion in public life.
In previously established case law and public understanding, religion is something of a private matter. Religious observance takes place in the home; in churches, mosques, synagogues, and other religious buildings; and in solo or group ceremony people that join voluntarily. The public realm — government facilities certainly, but also stores, professional offices, non-religious schools — are treated as religiously ‘neutral territory’. A public religious observance sufficiently aggressive to entrain people who didn’t choose to be there was widely deemed ill-mannered, if not actually illegal. This was the cultural and legal balance that traditionally has underpinned the concept of “freedom of religion”, as understood and practiced in the U.S.
The Kennedy ruling marks a watershed in a movement to change this way of thinking, not just in law, but in culture. In this new ethos, as a person of faith, you bring your faith with you throughout all aspects of your life. If your faith is central to your identity, then asking you to set it aside when you enter the public realm is a kind of assault on your personhood. Asking you to leave behind your religious concerns or suppress your religious expression when you enter the public arena is deemed an infringement on your rights of free speech.
The advocates of this view claim that are arguing for “religious freedom” or “religious liberty”.1 The concept entails breaking down what Thomas Jefferson termed the “wall of separation” between church and state. The public sphere — shops, schools, offices, government buildings, public parks — would become environments in which religious observance, by individuals and groups, would be welcome. In this sense, the very division between the public and private spheres would be substantially weakened.
What’s going on here? What is the difference between “freedom of religion”, as understood traditionally, with this different concept of “religious liberty”? How did we get to this point — intellectually, legally, and culturally? How will our society change if this new thinking becomes dominant? Is that the kind of society we want?
And if not, what can we do about it?
Please join us this Saturday, June 3, at 10:00 a.m. US Eastern Time as we work to understand this new challenging push to expand the role of religion in American public life. As usual, I’ll be joined by my co-hosts, philosophers Peter Lupu and Pini Ben-Or. Please join us.
That these terms sound almost identical with the established term “freedom of religion” is, of course, confusing — perhaps deliberately so.