Illustration by Michael Glenwood<\/i><\/p>\n
Would the Texas Ten Commandments proposal have passed constitutional muster? And more importantly, how will future \u201cTen Commandments laws\u201d fare?<\/i><\/p>\n
The recent attempt by legislators in Texas to mandate the posting of the Ten Command\u00adments in a \u201cconspicuous place\u201d in all public school classrooms reflects emerging fallout from the Supreme Court\u2019s 2022 landmark ruling in Kennedy v. Bremerton School District<\/i>. Under Senate Bill 1515, all public schools in Texas would have been required to display a \u201cdurable poster or framed copy of the Ten Command\u00adments\u201d that is at least 16 by 20 inches and \u201cin a size and typeface that is legible to a person with average vision from anywhere in the classroom.\u201d<\/p>\n
While <\/strong>the Texas law failed, a similar bill is still pending in the South Carolina legislature, and thus it appears that the controversy over state-mandated religious displays in schools will be with us for the foreseeable future. It\u2019s a controversy that has been reinvigorated, in large part, by the Supreme Court\u2019s ruling last year in Kennedy<\/i>.<\/p>\n Kennedy<\/i> was the Supreme Court\u2019s first direct review of private prayer by an on-duty public school employee. In its ruling the Court departed from decades of establishment clause jurisprudence, perhaps inspiring legislators such as those in Texas to test the new constitutional limits of church-state relationships. In eliminating the \u201cwall of separation\u201d that had long been the Court\u2019s standard when addressing religion in public education, and establishing a new test, the justices have created a whole other set of questions.<\/p>\n The <\/strong>Lemon<\/strong><\/i> Roller Coaster<\/strong><\/p>\n In Kennedy<\/i> the Court repudiated Lemon v. Kurtzman <\/i>and Earley v. DiCenso<\/i>, the 1971 cases from Pennsylvania and Rhode Island on aid to faith-based schools. In these two cases the Court first articulated the so-called Lemon<\/i> test\u2014the long-standing \u201cone size fits all,\u201d three-part test to evaluate the constitutionality of interactions between the government and religion. These interactions included government aid to religion and perceived government endorsement of devotional activities. According to the Lemon<\/i> test, interactions between the state (including public school officials) and religion had to have had a secular legislative purpose, a primary effect that neither advanced nor inhibited religion, and did not result in excessive entanglement between the two.<\/p>\n Returning to Kennedy<\/i>, the Supreme Court reasoned that the prayers of a Washington high school football coach, when he briefly knelt on the field following games, were a protected form of private speech. It ruled that when the school board chose not to renew the coach\u2019s contract because of his on-field prayers, it violated his First Amendment rights to both freedom of speech and freedom of religion. The Court decided that a proper understanding of the establishment clause does not \u201crequire the government to single out private religious speech for special disfavor.\u201d In Kennedy<\/i>\u2019s most far-\u200breaching aspect, the justices noted that \u201cthis Court long ago abandoned Lemon.\u201d Instead, they explained, the establishment clause must now be interpreted by \u201creference to historical practices and understandings.\u201d The school board has since reemployed the coach.<\/p>\n The Lemon<\/i> test and the emergence of the judicially created \u201cwall of separation\u201d did not develop in a vacuum. In 1948, in McCollum v. Board of Education<\/i>, the Supreme Court examined religious activity in a public school for the first time. The justices invalidated a program that allowed a priest, minister, and rabbi to enter public schools to provide religious instruction to children whose parents agreed to their participation in the classes. Certainly this was not as passive as the recent proposal to display the Ten Commandments in Texas classrooms. In McCollum<\/i> the Court struck the religious instruction program down both because it allowed tax-supported buildings to be used to disseminate religious doctrine and because it afforded faith-based groups invaluable, impermissible aid. The aid at issue was providing students for religion classes via the state\u2019s compulsory education machinery.<\/p>\n In Engle v. Vitae<\/i>, a 1962 case from New York, the Supreme Court banned school-sponsored prayer in public schools. The justices thought that even without overt pressure, placing the power, privilege, and support of the government behind a particular religious belief ran the risk of indirectly coercing others, especially minorities, to conform to the officially approved faith. This is a situation that could be present with the posting of the Ten Commandments in classrooms.<\/p>\n A year later, in Abington<\/i> School District v. Schempp <\/i>and Murray v. Curlett<\/i>, cases from Pennsylvania and Maryland, the Supreme Court forbade Bible reading and the recitation of the Our Father\/Lord\u2019s prayer in public schools. In its decision it created what became the first two parts of the Lemon <\/i>test. In a concurring opinion Justice William Brennan added that \u201cthe holding of the Court today plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history.\u201d The courts have yet to devise a clear test to evaluate the difference between teaching about<\/i> religion and the teaching of<\/i> religion in public schools.<\/p>\n To Post or Not to Post?<\/strong><\/p>\n Before we reflect on the constitutionality and wisdom, or lack thereof, of the recent Texas proposal and the current South Carolina bill, it may be helpful to briefly review previous Supreme Court decisions about the display of the Ten Commandments in public settings.<\/p>\n In its only case directly involving education, the 1980 case of Stone v. Graham<\/i>, the Supreme Court rejected the mandatory posting of the Ten Commandments in public school classrooms. The Court ruled that this was a violation of the establishment clause even though the Ten Commandments signs were purchased with private funds. In a brief unsigned opinion the justices relied on the now-repudiated three-part Lemon<\/i> test, invalidating Kentucky\u2019s statute as lacking a secular purpose. In this the Court emphasized that the underlying statute did not integrate the Ten Commandments into general school curricula. The Court was not convinced by a small notation on the posted versions of the Ten Commandments identifying them as part of the fundamental legal code of Western civilization and the common law of the United States.<\/p>\n The Supreme Court reached mixed results in two non-school cases from 2005 involving the Ten Commandments. In McCreary County v. American Civil Liberties Union of Kentucky<\/i> the justices affirmed that a courthouse display of the Ten Commandments violated the establishment clause largely because it failed Lemon\u2019s<\/i> secular purpose test. They focused on the fact that officials had adjusted the display three times in an attempt to find \u201cany way to keep a religious document on the walls of courthouses.\u201d<\/p>\n Conversely, in Van Orden v. Perry<\/i>, the Court affirmed as constitutional a display of the Ten Commandments as one of the 17 monuments and 21 historical markers commemorating the state\u2019s history spread out over the 22 acres of the Texas State Capitol. Ignoring the Lemon<\/i> test, a plurality of justices allowed the inclusion of the Ten Commandments ruling that, despite its religious significance, the monument was a far more passive display than the one in Stone<\/i>.<\/p>\n A 1967 ruling from New Hampshire\u2019s highest court, an admittedly older case, permitted the display of plaques containing the words \u201cIn God We Trust\u201d to be visible in classrooms. The court found that the display was acceptable because it is the national motto, appearing on coins and currency, on public buildings, and in the national anthem. Texas enacted a similar law in 2021 requiring school officials to display \u201cIn God We Trust\u201d signs as long as they are donated or paid for using private monies.<\/p>\n Unintended Consequences?<\/strong><\/p>\n Recent studies show a marked decline in both church attendance and belief in God in America. A Pew study reported that while 92 percent of Americans self-identified as Christian in 2011, this percentage declined to 64 percent in 2020. By 2070 the percentage of Christians in the U.S. population is projected to drop below 50 percent, at which time the number of \u201creligiously unaffiliated\u201d Americans\u2014or \u201cnones\u201d\u2014will probably outnumber those adhering to Christianity. In light of such data it is clear why officials in Texas, and perhaps elsewhere, may fear the loss of the Judeo-Christian influences in schools and the larger society. The recent Texas proposal and the current South Carolina bill may well inspire similar legislative attempts in other jurisdictions.<\/p>\n As this issue plays out, though, conflicting values or interests come into play. On the one hand are demographic realities in the United States that reveal a steep decline in those adhering to Christianity. On the other hand is perhaps the desire of many, such as legislators in Texas, to preserve the nation\u2019s Judeo-Christian tradition. Yet what might happen in future years should the \u201cnones\u201d or minority religions want their faith statements displayed in public schools while excluding others?<\/p>\n It remains to be seen how supporters of the current legislation would respond to calls to be more religiously inclusive. The precedent the legislators set today may ultimately lead to results for which they had not wished.<\/p>\n The Weight of History<\/strong><\/p>\n A key unresolved issue is how the courts might interpret the new \u201chistorical practices and understandings\u201d test enunciated in last year\u2019s Kennedy<\/i> case. <\/i>How might this be applied to the mandated posting of the Ten Commandments?<\/p>\n This question, which is more than hypothetical, is worth considering, as any law similar to the Texas bill is likely to face judicial challenges perhaps on two grounds. Some will challenge the posting of the Ten Commandments as a perceived violation of the establishment clause. At the same time, others may contest the proposed statute because it requires only the posting of the Ten Commandments and does not include other creeds. Perhaps by being more inclusive, by calling for the posting of other creeds, a proposed law might be perceived as teaching about<\/i> religion rather than the teaching of<\/i> religion, and the bill would stand a better chance of surviving challenges.<\/p>\n These Ten Commandment bills, if enacted, might well survive the Supreme Court\u2019s new \u201chistorical practices and understandings\u201d test. There can be little doubt that the Ten Command\u00adments and the Christian values they represent played a foundational role in the development of the United States. They were brought to the New World by Europeans, and they were present in the early republic, where they served as a source of law explicitly incorporated into the statutes of most colonies and states.<\/p>\n One can understand the desire of the Texas legislators to highlight the role of the Ten Commandments in the development of the United States. However, in America\u2019s increasingly diverse religious culture, is it wise to mandate the display of the Ten Command\u00adments but not other creeds? Put another way, as important as the Ten Commandments were, and remain, might it not be wiser to adopt a more inclusive approach? Perhaps this could be an approach consistent with Justice Brennan\u2019s comment in Engel<\/i>, where studying the Ten Commandments in social studies or world literature classes could be part of a larger discussion about the religious beliefs of various cultures throughout the world.<\/p>\n Stay tuned, because the debate about state-mandated religious displays in public schools is one that looks set to continue. Thus, this is an issue that should be of interest to all who follow issues dealing with religious freedom in the United States.<\/p>\n","protected":false},"excerpt":{"rendered":" Illustration by Michael Glenwood Would the Texas Ten Commandments proposal have passed constitutional muster? And more importantly, how will future \u201cTen Commandments laws\u201d fare? The recent attempt by legislators in Texas to mandate the posting of the Ten Command\u00adments in a \u201cconspicuous place\u201d in all public school classrooms reflects emerging fallout from the Supreme Court\u2019s<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[354],"tags":[186],"class_list":["post-6668","post","type-post","status-publish","format-standard","hentry","category-july-august-2023","tag-july-august-2023"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6668","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6668"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6668\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6668"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6668"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6668"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}