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).