The government has no right to be obnoxious

To be obnoxious is to be American, unless it’s the government doing it.

The Supreme Court affirmed the right of a football coach to offer prayers on the fifty yard line. Nuance is dead, so we must delve into pathology here. Coach Joseph Kennedy sued Bremerton, Washington school district after it declined to renew his contract in 2016, due to his praying. I won’t get into any arguments over Kennedy’s character, or if the prayers themselves were obnoxious.

Photo by Jack Sharp on Unsplash

Kitsap County is the seventh least religious place in America. It is populated mostly by white families. The average worker earns around $40,000 a year, maybe attended some college but didn’t get a bachelor’s degree. This worker might have done some military service, and may work at the Puget Sound Naval Shipyard, which employs about 14,000. It’s a solidly middle-class, white, secular place where beer-drinking and fishing are the popular pastimes.

Coach Kennedy’s postgame prayers had gone on relatively unnoticed for eight years. During that time, many players joined—and some led—the on field prayers. At times, Kennedy also prayed in the locker room but ceased that practice. At some point, however, the school board decided it was too weird to have a Christian prayer on the field, and proceeded to instruct Kennedy to stop. I wonder if they bothered to think that this is an infringement of the coach’s First Amendment right, but let’s say they did their homework first.

The Court sought to untangle the complex strands of a coach being a representative of the government as a public employee, or a private individual doing private things. Kennedy’s prayers were after the game, and students were not required to participate. In 2015, when an opposing coach expressed to the school’s principal that it was “pretty cool” Kennedy was allowed to pray on the field, the school instructed him to stop—if it interfered with his coaching duties or involved students. But students also have the right to pray.

In Bremerton, the government was obnoxious in removing Kennedy because of the prayer issue. People have a constitutional, enumerated right to be obnoxious in speech and conduct. The government does not have that right, which is what led to the erosion of the long-established “Lemon test” that the Supreme Court established 51 years ago. This test presumes that the coach’s prayer was done as a representative of the government, and asks if the prayer has a secular purpose. It was made at a time when places like Kitsap County were more religious, and that the coach would have been encouraged to pray by the principal, offending some random atheist’s sensibilities by inviting a son to kneel in prayer.

Now the test is if the government is being obnoxious in squelching the free speech of an individual who happens to be employed by the government. Things have flipped on their head.

The one principle that must be defended is the government has no right to be obnoxious, either for or against prayer, or the right of an individual, whether in the employ of the state or not, to express their own opinion in a private moment. If that private moment happens to be at the 50 yard line of the field after a game is where things get muddled.

Another instance where government has been obnoxious is in Colorado’s persecution of baker Jack Phillips, for refusing to bake a cake against his religious conviction. In that case, it’s not the government’s squelching of First Amendment speech, it’s government’s compulsion of an artisan to produce something.

Washington State drove florist Barronelle Stutzman into retirement. Arlene’s Flowers v. State of Washington was a completely obnoxious attempt to force a florist to create custom floral art celebrating same-sex wedding ceremonies. She elected to quit after years of fighting and losing in the state courts.

In many of these cases, the plaintiffs selected their targets on purpose, to create a case for Christians to choose between their beliefs and the compelled actions that the secular state would force upon them. I have to ask, how is this different than the red states that have “trigger” laws to ban abortion? As much as I abhor the practice of abortion, it’s obnoxious for legislators to have these laws on the books, and I believe at some point many will be repealed (which is sad because the best way to reduce abortion is through education and supporting mothers).

In the Kennedy case, the Court ruled correctly that whether for secular or religious purposes, the government has no right to be obnoxious. The individual right to be obnoxious, however, must not be infringed.

Americans in political power, and those with axes to grind, have for far too long used the power of the state to feed their obnoxiousness. Be obnoxious: protest, scream at the sky, hurl insults. It’s your voice and your dime. But let’s stop putting every issue at the feet of the White House, or the state house. Government cannot fulfill its purposes when all it does is undo the acts of the previous administration, only to have its own acts undone by the next. Even the Supreme Court is being set up for this kind of useless pendulum action.

To be obnoxious is to be American, unless it’s the government doing it.

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