Category: Separation of Church and State

Here We Go Again!

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My relief about last month’s Supreme Court’s decision not to allow Oklahoma to open the nation’s first publicly funded Catholic charter school may have been premature. I knew the decision was narrow and ended in a tie, with Justice Barrett recusing herself, but at least the court “affirmed last year’s Oklahoma Supreme Court decision that the concept of a publicly funded Catholic charter school is unconstitutional.” (oklahomavoice.com)

The first amendment to our Constitution unequivocally states, “”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court’s tie ruling, however, suggests some openness to dismantling that separation. Our current administration insists that we are a Christian country despite the clarity of the amendment’s statement.

In 1980 in Stone v. Graham, the Court found that Kentucky’s requirement to post the Ten Commandments in schools “violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted ‘had no secular legislative purpose’ and was ‘plainly religious in nature.’ The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day.” (www.oyez.org )

Despite precedents like that, a year ago, Louisiana Governor Jeff Landry signed a bill into law mandating that the Ten Commandments be posted in every classroom in the state and said, ““I can’t wait to be sued.” Last November, U.S. District Judge John deGravelles that “the law is ‘facially unconstitutional’ and ‘in all applications,’ barring Louisiana from enforcing it and adopting rules around it that obligate all public K-12 schools and colleges to exhibit posters of the Ten Commandments.” (nbcnews.com)

When this case reaches the Supreme Court, the outcome should be a no-brainer. Constitutional law scholar Sanford Levinson warns, however, that the current Court’s willingness to dispense with past precedents may lead to a different decision.  (hls.harvard.edu )

And Louisiana is not alone. This fall every school in Texas must post a copy of the Ten Commandments, and they will not be permitted to post any alternatives: “the bill requires every classroom to visibly display a poster sized at least 16 by 20 inches. The poster can’t include any text other than the language laid out in the bill, and no other similar posters may be displayed.” (texastribune.com)

Other states have climbed on this bandwagon. In 2024, Arizona Governor Katie Hobbs vetoed a state senate bill that would have permitted posting the Ten Commandments in schools. Last summer Utah passed a bill “adding the Ten Commandments along with the Magna Carta to a list of approved historical documents and principles allowed to be studied in public schools.” The final watered-down version that passed removed the requirement and made the display optional. (abc4news.com) In Oklahoma, House Bill 1006, which failed last year, has been revived and would require a poster or a framed copy of the Ten Commandments to be posted in a conspicuous place in every public school classroom in Oklahoma, the same state where Education Superintendent Ryan Walters “ordered public schools to keep a copy of the Bible in every classroom and incorporate the Christian text into lesson plans. Several district leaders have said they won’t comply, and a lawsuit is challenging the order.” (oklahomavoice.com)

The Supreme Court has weakened the doctrine of separation of church and state before. In 2005 in Van Orden v. Perry, a lawsuit about a monolith displaying the Ten Commandments being placed at the Texas state capitol after being donated by a private group, the Court determined that, “The Establishment Clause does not prohibit per se all forms of government action that may have religious content or a religious message.” (supremejustia.com) In the 2019 Kennedy v. Bremerton case, the Court determined that the football coach had the right to pray on the high school football field after a game, where he could be joined by players. (www.law.cornell.edu)

I fear that the current US Supreme Court will continue to make decisions that erode the separation of church and state. Mandated posting of the Ten Commandments excludes other religions along with atheists and agnostics. It has no part in our public square. Our founding fathers were not anti-religion, but they sought relief from the enforcement of any single religion. I believe in an inclusive and welcoming space for all learners. Religious instruction has been a private matter and must remain so.

Threats to the First Amendment

The United States is not a Christian country, despite constant conservative assertions to the contrary. Our founding fathers sought freedom of religion. In 1789 they adopted the Bill of Rights, whose First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Although many of those who call our country a Christian nation often assert the freedom of speech guaranteed by the First Amendment, they are too often ready to ignore the very first line.

According to Cornell Law School, as the third president of the United States, “Thomas Jefferson referred to the First Amendment as creating a ‘wall of separation’ between church and state…The term is also often employed in court cases. For example, U.S. Supreme Court Justice Hugo Black famously stated in Everson v. Board of Education that ‘[t]he First Amendment has erected a wall between church and state,’ and ‘[t]hat wall must be kept high and impregnable’” (www.law.cornell.edu).

The 2022 Supreme Court breached that wall with their decision that a high school coach could legally pray with his players and others on a school field under his First Amendment rights to free speech and free exercise of religion. Now we face further breaches. The Louisiana legislature passed HB71 in June, giving schools until January 1, 2025, to display the Ten Commandments in all classrooms. They must be shown on “‘a poster or framed document that is at least eleven inches by fourteen inches’ in every classroom. The commandments have to be the display’s ‘central focus’ and be ‘printed in a large, easily readable font’” (washingtonpost.com).

And Louisiana is not alone. Similar bills have been introduced in Texas, Oklahoma, Mississippi, and South Carolina, though they have not yet become law. After Texas allowed chaplains in public schools in 2023, more than a dozen states are now introducing legislation to bring chaplains into their public schools. School voucher programs have expanded rapidly in GOP states, bringing billions in taxpayer dollars to religious schools (Ibid.)

I absolutely support the right of Americans to practice their religion if it does not impinge on the rights of others. Posting the Ten Commandments, an inherently religious document, impinges on the rights of all students who do not subscribe to it. Highlighting one religious doctrine as if it were universal excludes students with other beliefs. “‘All of these students will be forcibly subjected to scriptural dictates, day in and day out, including: “I AM the LORD thy God”; “Thou shalt have no other gods before me”; “Thou shalt not take the Name of the Lord thy God in vain”; “Remember the Sabbath day, to keep it holy”; and “Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee,” the complaint asserts. ‘This simply cannot be reconciled with the fundamental religious-freedom principles that animated the founding of our nation’” (www.the74million.org).

Louisiana officials claim that James Madison, the fourth President of the United States, stated that we “have staked the whole future of our new nation…upon the capacity of each of ourselves to govern ourselves according to the moral principles of the 10 Commandments.” A lawsuit seeking to overturn this law claims the quotation is fabricated, that Madison instead wrote, “‘The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries’” (Ibid.). Madison also wrote, “Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?” (thehill.com).

State Senator Jay Morris defended the bill, claiming it “is not solely religious.” “And the text of the legislation deems the Ten Commandments a ‘foundational document in our state and national government’ that was ‘a permanent part of American public education for almost three centuries’” (Ibid.). Such claims are disingenuous and do not meet the burden of separation of church and state. Nor are other foundational documents required to be display, including the U.S. Constitution and Bill of Rights.

This is not the first time this issue has been raised. In 1978, Kentucky passed a law requiring “the posting of the Ten Commandments in public school classrooms, paid for by private funds” (www.wkyt.com). Challenges in court reached the Supreme Court in 1980. That Court struck down the Kentucky law as a violation of the separation of church and state. The decision reads:

Held: A Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the State has no secular legislative purpose, and therefore is unconstitutional as violating the Establishment Clause of the First Amendment. While the state legislature required the notation in small print at the bottom of each display that “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States,” such an “avowed” secular purpose is not sufficient to avoid conflict with the First Amendment” (supreme.justia.com).

These battles are not going away. In June of this year, Oklahoma’s State Superintendent of Education official ordered all public schools in the state to incorporate the Bible into their curriculum as a historical text. Yet two days earlier, the Oklahoma Supreme Court struck down a publicly funded Catholic charter school about to open. “The Court found the concept of a religious, state-funded school is unconstitutional and a violation of state law” (oklahomavoice.com).

Public schools need to honor the First Amendment. Students should feel safe and included. I agree with the lawsuit filed in Louisiana that this law “pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments … do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences” (nbcnews.com). 

Isn’t it interesting that many of the same leaders who argue that parents should control the upbringing of their children want to force feed their preferred religion in violation of the Constitution? We cannot allow them to succeed.