Bill Analysis: Ten Commandments in Schools

Because of the evolving body of case law and complicated constitutional issues surrounding the posting of the Ten Commandments in public spaces, TFN Insider asked one of the nation’s top First Amendment scholars, Steven Green, to take a look at state Rep. Dan Flynn’s problematic legislation promoting the Ten Commandments in Texas schools. Here is Dr. Green’s analysis of House Bill 79 in the Texas Legislature.

Analysis of Texas HB 79
By Dr. Steven K. Green, Professor of Law and Director of the Center for Religion, Law & Democracy at Willamette University. Dr. Green is the author of several books on the religious liberty provisions of the First Amendment, including most recently The Second Disestablishment: Church and State in Nineteenth Century America (Oxford, 2010).

As currently written, HB 79 would prevent any school district from prohibiting the posting of a copy of the Ten Commandments in a prominent location in any public school classroom.

The bill does not state who may post the Ten Commandments in a classroom, but the assumption is that it would be done by a public school employee, as public school classrooms are not public forums and are otherwise unavailable for the posting of items by private individuals. Even if the bill could be interpreted to allow a posting by a student or a non-school person with school permission, that factor would not affect the analysis discussed below.Several problems exist with this bill.  First, if enacted, it would conflict with an express holding by the Supreme Court prohibiting the posting of the Ten Commandments in public school classrooms. Second, the bill would place school officials in the untenable position of selecting among competing versions of the Ten Commandments, thus requiring them to show favoritism to one denomination over others. A related concern is that the selection process would create an environment of divisiveness among religious faiths. A final problem with the bill is one of unintended consequences. By authorizing the posting of the Ten Commandments, but no other religious texts, the bill will expose public schools to legal challenges based on religious preferentialism. Based on settled case law, schools could not exclude requests for postings of texts of other faiths, such that classroom walls could become a cacophony of religious items.

The chief problem with the bill is that it conflicts with settled case law. In 1980, the Supreme Court held an almost identical law to be unconstitutional. In Stone v. Graham the Court declared that the Ten Commandments is “undeniably a sacred text in the Jewish and Christian faiths” and noted that many of the Commandments “concern the religious duties of believers.” No recitation of a secular purpose for the posting of the Commandments could “blind [the justices] to that fact.” The court also stated that such postings had the undeniable purpose of having schoolchildren “read, meditate upon, [and] perhaps to venerate and obey, the Commandments.” Considering these factors, the Court held that the posting violated the constitutional command prohibiting the state from enacting laws respecting an establishment of religion. The postings demonstrated a state preference for religion while it encouraged religious fealty among schoolchildren. The postings also violated the constitutional command that government must remain be neutral toward religious matters.1

In the 31 years since the Stone decision, the Court has not questioned its holding. It has been followed by lower courts, which have declined to extend rationales allowing Ten Commandment displays in courthouses and public parks to the school context.2

As noted, the bill would also require school officials to choose among competing version of the Ten Commandments. The Commandments appear in two places in the Old Testament, in Exodus and Deuteronomy, each with slightly different wording. Then, variations in language exist among the versions recognized by Catholic, Protestant and Jewish faiths. Any posting will require a school official to choose one version over the others; James Madison described it as “arrogant pretention” that public officials were competent judges of “religious truth.” Public officials lack authority to determine what is a correct or preferred representation of a religious text. And through the process of choosing and preferring one version over another, the schools will be inviting religious dissension.

Moreover, the Court has held that the Free Speech Clause of the Constitution forbids the government from engaging in viewpoint preferences or discrimination among religions. Once the schools allow the posting of a religious text of one faith, it will be required to accept texts of other faiths.3

Finally, this bill will invite the politicization of religion. We should all be concerned whenever religious issues become embroiled in political debate. James Madison again warned of the dangers of public officials employing “religion as an engine of civil policy.” The political use of religion not only depreciates government but also harms religion, Madison remarked: it was “an unhallowed perversion of the means of salvation.”

1 Stone v. Graham, 449 U.S. 39 (1980).
2 ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003), affirming Doe v. Harlan County School Board, 96 F.Supp.2d 667 (E.D. Ky. 2000).
3 Larsen v. Valente, 456 U.S. 228 (1982); Rosenberger v. University of Virginia, 515 U.S. 819 (1995).

12 thoughts on “Bill Analysis: Ten Commandments in Schools

  1. 1.This is grandstanding by this idiot, for props from the religious right.
    2. It’s also a diversionary bill to try to generate smoke to obscure the GOP legislature’s retreat into the 19th Century in response to Perry’s $27 bil budget deficit.
    3. It will cost millions of dollars in legal fees when it is litigated. It will fail.

  2. I get tickled when I read about folks promoting the Ten Commandments: they don’t seem to read their own book very carefully. If you look through your Bible, you first run across those two words used together in Exodus 34: “And he wrote on the tablets the words of the covenant—the Ten Commandments.” If you then back up a few verses and actually read those Commandments, you don’t get the ones that people want to put in schools and courthouses. You get “Do not offer the blood of a sacrifice to me along with anything containing yeast, and do not let any of the sacrifice from the Passover Festival remain until morning. Bring the best of the firstfruits of your soil to the house of the LORD your God. Do not cook a young goat in its mother’s milk.” (NIV here – your milage may vary with other versions.)

    Odd, isn’t it? And chicken-fried steak is still the National Food of Texas, even though it skirts dangerously close to a kid seethed in its mother’s milk.

  3. While the Supreme Court has banned posting of the Ten Commandments in a classromm as such posting is establismentarianism, which sounds like disestablimentarianism which is not the same as antidisestablismentarianism. It would be then consistent with disestablishmenatiaraism to ban posting of times tables as they are indicative of Cartesian linearism in a world quite bereft of linear definition.

  4. Looking at the usual list of “ten commandments” I find that only three (murder, theft, false testimony) are regularly embodied in our laws and adultry is only sometimes prohibited by law. So what are we to do? Call them “The Three and Sometimes Four Commandments”? What about coveting? Would the current crop of greedy right-wingers go up in a puff of smoke?

  5. “Based on settled case law, schools could not exclude requests for postings of texts of other faiths, such that classroom walls could become a cacophony of religious items.”

    Wisdom from my area of the United States:

    “We can stop that. If any Muslim, Jew, or Hindu ever shows up to try it, we’ll burn his house down in the middle of the night with him and his family in it. We are Bible-believing Christians and by damn we are going to have Bible-believing schools. D’yall hear that joke Larry the Cable Guy. tol..”

  6. Violation of only 3 of the 10 Commandments can send a person to jail. They are for lying (bearing false witness), stealing, and killing. The Bush Administration violated those commandments also.

  7. Accusing the Bush Administration ipso facto as having violated a Commandment that does not apply to the US Government per the Constitution, argues that the Ten Commandments should apply to American govenment.

    The Constitution spefically grants the US governmnet the power to wage war which usually results in someone getting killed, occasionally the ones being aimed at. Conservatives was eloguently on the sins of taxation which, in their view, is “taking” which is a form of Cosnervative theft. Lying by government officials is punishable in the context of a false official statement that only applies to Officers of the United States (Military or Civil), otherwise it is called public relations.

  8. Here’s the commandment the Texas Legislature and the nation’s GOP officeholders should respect but don’t.
    “Thou shalt not waste the taxpayers’ time and money. ”

    They are in egregious violation.

    There is a massive $27 billion budget deficit in Texas. Rick Perry almost singlehandedly created it. He was able to hide the severity of the problem partly through the acceptance of federal stimulus dollars, which he made a “big show” of rejecting, initially.
    The Texas legislature is destroying public education, they’re throwing away our kids’ futures, they’re gnawing away on the seed corn, they’re devastating our economic infrastructure, and they’re basically destroying civilization as we know it.
    All of these other issues are intended to inflame the koolaid drinkers, distract the rational people, and divert attention away from their corruption, criminality, incompetence, and malfeasance.

  9. David. I once saw a legal brief where a person was charged with malfeasance, infeasance, imfeasance, disfeasance, and nonfeasance. The list had about 5 more such “feasances,” but I cannot recall enough prefixes to write them for you. This person was also charged with several other one-word counts, each of which was also preceded by all 10 or so prefixes. It was the most amazing thing I ever saw, and it occurred to me that the person charged must have been asleep 24/7.

  10. Bad mouthing legislatures is always good for some angst mileage, as does trashing the court system and the current chief executive. Given that no part of any government is worthy of governance, what sort of governance does one recommend? Monarchy, aristocracy, dictatorship of the proletariat, or just plan Somali style anarcy?

    Ours is a participatory democatic republic. Those who participae get the republic. Those that don’t can continue to grumble ineffectively.