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Not a Simple Case

The present Court has been ardent in defending the rights of religious believers to not be forced to violate their beliefs


The first requirement for an opinion writer is: an opinion. It also helps if said writer is able to support that opinion with facts and logic.

But both readers and writers should recognize that many issues worth writing about have multiple sides to them. And though an orderly presentation of the argument, within the given word limits, may not allow for the mention of every counter-argument, writers should do their best to think of what those arguments might be, and be prepared to address them in future columns.

With that prelude, I must confess my own ambivalence with regard to the issues raised in a case argued before the Supreme Court last week, Kennedy v. Bremerton School District. Joseph Kennedy, a football coach employed by the Bremerton school district, was fired for his post-game prayers at the 50-yard line.

The present Court has been ardent in defending the rights of religious believers to not be forced to violate their beliefs. And I watched an interview with Coach Kennedy, in which he described his prayer as giving thanks for the opportunity to work with the young men on his team, regardless of whether they win or lose. I have no doubt of his sincerity; nor do I disagree with the sentiment. (Whether his prayer contained Christological references is not clear in the record, but presumably it did.)

On the other hand, the First Amendment not only assures the free exercise of religion, the Establishment Clause prohibits any attempt by the state to impose a particular religion. The Establishment Clause was designed to prevent the ruinous ongoing religious wars of Europe. It is further designed to protect members of minority faiths or of no faith from government action that suggests they don’t really belong or that they are only tolerated. As George Washington wrote to the Hebrew congregation of Newport in 1790: “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”

I have heard many chareidi Jews considerably older than I, who attended public schools, speak of hearing the religious carol “Silent Night” repeatedly around Xmas time. (An exposure not offset by music class offerings of “I have a little dreidel / I made it out of clay.”) Though none of them claimed to have been damaged, who can say that the same would apply to far less religiously grounded Jewish students?

I’M NOT THE ONLY ONE, apparently, who finds the Bremerton case a close one. That is clear from the oral arguments, which focused heavily on the particular facts of the case, and in which the justices posed endless hypotheticals to counsel about how they would view related cases.

Paul Clement, counsel for Kennedy, for instance, began his argument by stressing that at the only two games mentioned in the dismissal letter of the school district, there were no players from Coach Kennedy’s team gathered around him as he prayed. (Some players from the opposing team joined him for one of those games, but Coach Kennedy had no authority over them.)

Clement intended thereby to turn the case into one solely involving the Free Exercise Clause. The Supreme Court long ago opined that neither students nor teachers “shed their right to freedom of speech or expression at the schoolhouse gate.” (Justice Alito argued that the school district was limited to the arguments it made in its dismissal letter, which did not involve player participation.)

Justice Breyer devoted his initial questioning to nailing down the facts of the case — another signal that the Court is unlikely to lay down a bright line principle — e.g., “Roe was egregiously wrong from the start.”

And the respective counsels tended to agree on certain boundaries. Clement acknowledged that Kennedy could not invoke G-d as part of a motivational speech to his team, as he had done previously. And his opposing counsel, Richard Katskee, agreed that he could not be fired if he kneeled unobtrusively on the sidelines to pray, either before or after the game, even if he was on school time.

The problem was that Kennedy insisted on being able to kneel on the 50-yardline and on players from both teams being able to join him. He never invited any players to do, but rather told them, “It’s a free country.” But in his public dispute with the school district, he emphasized that he felt his words as he kneeled were part of the way he built them “into better people.” His words may have done so. But they were also laced with religious terminology.

And it is hardly far-fetched to think that some players who did not share Kennedy’s religious views might have felt that their participation or lack thereof would affect their playing time. There was absolutely no evidence of Kennedy, explicitly or implicitly, suggesting such a thing. Yet the Court has previously held that an invocation by a rabbi at a public school graduation, at which students were expected to at minimum stand respectfully, constituted a form of improper religious coercion.

Though the school district was clearly not “endorsing” Mr. Kennedy’s religious views, as their public dispute made clear, as long as he was coaching, the school district was providing him with a platform that might lead players to feel a degree of coercion.

The coach himself indicated that he was conveying a message. And so this case bears no relation to examples raised in an amicus brief by an Orthodox Jewish group of a teacher making a blessing prior to eating or upon seeing a rainbow, where no message to the students could be inferred.

Worse than my confusion about Bremerton is the fact that such issues are going to keep arising in different contexts. What about the high school teacher, for instance, who never misses a chance to suggest that every white person is inherently advantaged and every black person disadvantaged?

Oh, for the days of Miss Boghasen, my high school A.P. history teacher. Sure, we knew she was vaguely leftish. But she taught primarily from the old Amherst series, in which prominent historians debated the major issues in American history. And the fear of political or religious indoctrination of students was still decades into the future. —

Pesach Cleaning Made Easy

Though Pesach cleaning is behind us, and the dread it inspires will not return in full force until next Purim, I would like to share one happy memory of the Pesach just past.

Well over a decade ago, I was standing in the kitchen of Rebbetzin Yehudit Ravitz, wife of longtime MK Rabbi Avraham Ravitz ztz”l, as she supervised a group of children and grandchildren who had come to help with Pesach cleaning. She told me how her twelve children had always loved the weeks of Pesach cleaning, especially the breaks when everybody sat around talking to one another. Even today, she said, her children not only send the grandchildren to help with the Pesach cleaning, but each one of them puts in his or her own time as well, hoping to relive their happy childhood memories.

I will confess that at the time that day still seemed a long time away for the Rosenblum family. Though all participated, I cannot say that those still unmarried at the time evinced great joy in the opportunity to join their siblings in the joint Pesach efforts.

But this year, it dawned on my children that in place of the ten-person work crew that their mother and I could once commandeer, we are now reduced — happily — to a crew of two, without any corresponding diminution in the size of our apartment. Indeed, I suspect I’m not even considered a full body for the purposes of this count. (All those tight Mishpacha pre-Chag deadlines, you know.)

Anyhow, despite their own wives in need of their services, five Rosenblum sons and seven grandchildren (some for the second time) descended on our home about ten days before Pesach, and in short order did all the heavy moving required to get at every inch of floor space, dusted shelves unreached since last Pesach, and even got around to the largest windows, and a fair amount of furniture. And when they were all done, they sat around savoring the pizzas that were their reward and laughing and talking for almost as long as the cleaning had taken.

Now I know why Rebbetzin Ravitz looked so happy that day long ago. There are few greater pleasures in life than knowing that you have a built a family for whom even the most arduous tasks are fun when done together and for a common purpose.


(Originally featured in Mishpacha, Issue 911)

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