So, SCOTUS is going nuts this term. First Roe v. Wade fell, and now Lemon v. Kurtzman is more or less dead. This time we have the case Kennedy v. Bremerton School District. Essentially, the case was about some football coach who prayed on the field after football games, and answered whether he had the right to do that. These cases are tricky, since the establishment clause and the free exercise clause tend to conflict sometimes. While the establishment clause tends to point that congress shall make no law respecting a an establishment of religion, the free exercise clause gives people the right to freely exercise their religion. But, these tend to create a lot of cases in schools in particular, which are government institutions, and the teachers and the like are government employees.
Now, from the 1960s on, the supreme court has generally sided with the establishment clause. Teachers, coaches etc. are government employees, and therefore cannot lead students in prayer, as this is an establishment of religion. Essentially, teachers are not allowed to push religion on students. The government is to be as religiously neutral as possible, and in the past, having school prayer often created a hostile environment for students who weren't of the mainstream religion. If you were the lone class atheist, or even say muslim, and every morning you started off with Christian prayer, you might feel excluded or even harassed if you don't participate. Essentially, if you have school prayer, it kind of puts a target on the back of those who don't participate, leading to exclusion and harassment. The answer was to just remove prayer from schools.
I know that a lot of fundie Christians act like removing prayer from schools was a bad thing and we were persecuting based on religion, but it was just the opposite. Students could pray quietly and privately if they wanted to. And teachers could do it quietly and privately away from students. They just could not, as employees of the government, lead students in religious activity.
Which is where this case comes in. While the facts of the case were presented as this coach, Kennedy, wanted the right to freely exercise their right to prayer, and the SCOTUS case approached this in a way assuming it was done quietly and privately, but as Kyle Kulinski pointed out, it wasn't, he was doing it rather loudly and publicly and this led to public prayer among students. This is the insidiousness of this new SCOTUS. They basically seem to manipulate the questions they address to get the outcome they want. No longer are SCOTUS judges just acting in a principled way, they are ignoring all judicial principles to do what they want. This is NOT good, and I feel like this new wave of cases is undermining the legitimacy of the court.
Anyway, this case seems to have effectively destroyed Lemon V. Kurtzman too, which basically applied the all important "Lemon Test", which established THE standard by which we addressed matters of church and state. Essentially, it weighed questions with three prongs:
1) Purpose Prong: legislation should "have a secular purpose."
2) Effect Prong: legisation should "neither advance nor inhibit religion."
3) Entanglement Prong: legislation should not cause "excessive government entanglement with religion."
And you know what? That's fine. I want to remind people. Those big bad atheists who "hate religion"? Most of them don't wanna outlaw it. They believe in free speech. And even though I'm not an atheist any more, I still believe in separation of church and state just like I did as an atheist. All we want, is to keep peoples freaking religion out of our lives. We don't care if you want to practice your own religion privately. Your relationship with "god", or any other supernatural being, imaginary or not, is yours. But, don't bring that crap into the public square. Don't try to force it on other people. Government action should have a secular purpose. A football coach can pray privately regarding their own wins and losses, no one is denying that. It's engaging in such actions publicly as a government employee that's the problem.
But according to this new supreme court, that's "free speech" now.
I admit, the first amendment is vague on these issues. I firmly believe that in cases like these, the establishment and free exercise clause contradict. When dealing with government representatives, some of whom may be religious, that person's right to free expression comes into conflict with the government's job to remain neutral. And there is no one single solution.
However, I believe the lemon framework was correct. if you work for the government, for the best interests of society, you should refrain from practicing your religion publicly in a way that creates a harmful environment that pressures others to participate. The less government and religion entangle, the better.
But, let's face it, this current SCOTUS is made up by Christian fundamentalist nutjobs. They don't believe in freedom of religion in this way. They effectively want to turn us into a theocracy. I've dealt with them. The way they frame it, and I understood it in my Christian days in the 2000s, was that while the founders didn't want a government church, that doesn't mean that the country shouldn't be guided by Christian principles. They literally believe in revisionist history on the subject.
The GOP has been gunning for this for 40 years. And it's a shame they managed to succeed in their dying gasp, as this current alignment is expiring, and the country is rapidly secularizing. Seriously, the majority of Americans want legal abortion, and now we're making it illegal. And most Americans seem to support some flavor of religious neutrality in schools, with only a minority supporting an overtly christian perspective. But what are we getting? More prayer in schools.
America is in a weird place. It seems to me that the people themselves are increasingly favoring liberal positions on a wide variety of issues, both social and economic, but then they vote in ways that support a party identity more than their actual convictions. And because our current political alignment is grossly outdated, with the republicans still largely supporting a more extreme mask off version of the same positions they've held since the 70s and 80s under Nixon and Reagan, and the democrats still representing the moderate politics of people like Joe Biden and Bill and Hillary Clinton, we are in a position where our politicians and institutions are increasingly out of touch with the American people.How long will we tolerate continuing to be governed by the previous generation's politics? How entrenched are our institutions where they don't respond to the will of the people?
That's where we're at. The republican and democratic party represent the last generation's politics that had already hit their expiration date in 2016. But because our institutions are stuck in a certain pattern despite the people increasingly wanting something different, everything is going wrong. People are falling for authoritarian strongmen like Trump. Dems are falling in line voting for old and outdated politicians like Hillary and Biden just to avoid Trump winning. We are not in a good place. And even if the opinions of people are changing, the entrenchment of the two party system, as well as factors like lifetime court appointments and gerrymandering are dragging out our ability to effectively change our country for the better. We are a victim of our own political dysfunction. And we can either rise above it, which is what I've been trying to encourage, or we can end up being tyrannized by it.
If there's any solace, unlike what the democrats freaked out about in 2016, I don't think this SCOTUS will last terribly long. Breyer is retiring, and Biden will replace him. Clarence Thomas is in his 70s. Bush's appointees will also be retiring in the next 10-15 years. Unlike what Hillary fearmongered about, I doubt this will be a 30-40 year thing. More a ~15 year thing. There's going to be a regular influx and outflux of justices. Now, Trump's appointees will be there for a while. They're gen Xers, and are only in their 50s. They could be there until 2050 or so if their health holds up. But...if we can flip other seats, we could easily flip SCOTUS back 6-3 the other way. Or even go back to having a split down the middle court.
It depends on whether democrats can win elections, which, they kind of have a tendency to crap the bed on. Once again, because our politics represents the last generation's, and no one actually LIKES people like Hillary and Biden outside of the small insular minority that actually shows up and votes democrat. Again, we're victim to our institutions. Instead of our institutions responding to people, the people fear the institutions and threaten them into supporting them. Until the democrats are replaced from within, or from the outside by a third party movement, this crapshow is going to continue. The GOP is in a tailspin and the democrats are too dedicated to their centrist schtick to actually align the country toward their ideas.
As for whether Hillary won, yes, she would've nominated three justices IF the senate would cooperate, which, given the GOP, they likely wouldn't. I mean they stonewalled obama. They could've held the whole process hostage until one party (probably the GOP given my belief that enthusiasm wins elections) held both the presidency and the senate. If Hillary DID get to nominate people, again, I'm not even sure the republican senate would let her as there's no set number of SCOTUS judges and they could've kept the court empty for years to keep the seats for themselves, yeah, this wouldn't have happened. Does that mean we should've voted for Hillary? Again, I'm not sure it really would've mattered. Hillary would've been an awful mediocre president, and we're all seeing Biden's floundering approval ratings. The GOP would've ended up winning anyway due to the enthusiasm gap in future elections, and we would be in the same boat.
I'm serious, I really don't think electing Hillary would've done much long term. The historical trends are as such, right now, that as long as the dems push mediocre centrists, the GOP is going to hold a long term electoral advantage. They would hold the system hostage every year until they lose, and then everything that we fear happens anyway. The only unfortunately aspect of 2016 in particular was that Trump managed to nab three justices in one four year term. But if historical trends show anything, we'll have our chance in the future. As I said, I expect the next major wave of retirements around 10-15 years from now. And those will mostly be Bush appointees.If anyone is curious, the median SCOTUS appointment lasts around 16 years, but I imagine appointees in the modern era can last longer, probably closer to 20-30 on average. So yeah, it's a revolving door and I don't expect this majority to be permanent, especially if we have a left led party realignment in the near future (which is the best possible scenario).
Either way, in the mean time, we're in for a wild ride as the current SCOTUS wreaks havoc and weakens our institutions in ways that could lead to nasty effects in the near future. I hope that progress wins out in the end, and that this whole dumpster fire really is temporary, but for now...we're gonna be dealing with a lot of regressive decisions that fly straight in the face of public opinion. Let's hope the democrats shape up where society is a more positive place by 2032 or so. I estimate this turbulent realignment period will come to an end around 2028-2032, so we'll have a better idea what direction society is really going in by then.
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