Be Careful What You Wish ForCharles J. Russo July/August 2023
Illustration by Michael Glenwood
Would the Texas Ten Commandments proposal have passed constitutional muster? And more importantly, how will future “Ten Commandments laws” fare?
The recent attempt by legislators in Texas to mandate the posting of the Ten Commandments in a “conspicuous place” in all public school classrooms reflects emerging fallout from the Supreme Court’s 2022 landmark ruling in Kennedy v. Bremerton School District. Under Senate Bill 1515, all public schools in Texas would have been required to display a “durable poster or framed copy of the Ten Commandments” that is at least 16 by 20 inches and “in a size and typeface that is legible to a person with average vision from anywhere in the classroom.”
While 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’s a controversy that has been reinvigorated, in large part, by the Supreme Court’s ruling last year in Kennedy.
Kennedy was the Supreme Court’s 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 “wall of separation” that had long been the Court’s standard when addressing religion in public education, and establishing a new test, the justices have created a whole other set of questions.
The Lemon Roller Coaster
In Kennedy the Court repudiated Lemon v. Kurtzman and Earley v. DiCenso, 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 test—the long-standing “one size fits all,” 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 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.
Returning to Kennedy, 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’s 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 “require the government to single out private religious speech for special disfavor.” In Kennedy’s most far-reaching aspect, the justices noted that “this Court long ago abandoned Lemon.” Instead, they explained, the establishment clause must now be interpreted by “reference to historical practices and understandings.” The school board has since reemployed the coach.
The Lemon test and the emergence of the judicially created “wall of separation” did not develop in a vacuum. In 1948, in McCollum v. Board of Education, 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 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’s compulsory education machinery.
In Engle v. Vitae, 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.
A year later, in Abington School District v. Schempp and Murray v. Curlett, cases from Pennsylvania and Maryland, the Supreme Court forbade Bible reading and the recitation of the Our Father/Lord’s prayer in public schools. In its decision it created what became the first two parts of the Lemon test. In a concurring opinion Justice William Brennan added that “the 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.” The courts have yet to devise a clear test to evaluate the difference between teaching about religion and the teaching of religion in public schools.
To Post or Not to Post?
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.
In its only case directly involving education, the 1980 case of Stone v. Graham, 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 test, invalidating Kentucky’s 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.
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 the justices affirmed that a courthouse display of the Ten Commandments violated the establishment clause largely because it failed Lemon’s secular purpose test. They focused on the fact that officials had adjusted the display three times in an attempt to find “any way to keep a religious document on the walls of courthouses.”
Conversely, in Van Orden v. Perry, the Court affirmed as constitutional a display of the Ten Commandments as one of the 17 monuments and 21 historical markers commemorating the state’s history spread out over the 22 acres of the Texas State Capitol. Ignoring the Lemon 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.
A 1967 ruling from New Hampshire’s highest court, an admittedly older case, permitted the display of plaques containing the words “In God We Trust” 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 “In God We Trust” signs as long as they are donated or paid for using private monies.
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 “religiously unaffiliated” Americans—or “nones”—will 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.
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’s Judeo-Christian tradition. Yet what might happen in future years should the “nones” or minority religions want their faith statements displayed in public schools while excluding others?
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.
The Weight of History
A key unresolved issue is how the courts might interpret the new “historical practices and understandings” test enunciated in last year’s Kennedy case. How might this be applied to the mandated posting of the Ten Commandments?
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 religion rather than the teaching of religion, and the bill would stand a better chance of surviving challenges.
These Ten Commandment bills, if enacted, might well survive the Supreme Court’s new “historical practices and understandings” test. There can be little doubt that the Ten Commandments 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.
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’s increasingly diverse religious culture, is it wise to mandate the display of the Ten Commandments 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’s comment in Engel, 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.
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.
Article Author: Charles J. Russo
Charles J. Russo, M.Div., J.D., Ed.D., is the Joseph Panzer chair in education in the School of Education and Health Sciences, director of its Ph.D. program in educational leadership, and research professor of law in the School of Law at the University of Dayton. He can be reached at email@example.com.