(RNS) — Last week, the Texas Senate passed a bill requiring the Ten Commandments to be posted in every one of the state’s public school classrooms. It did the same thing two years ago, but the bill died when the then-speaker of the Texas House kept it from coming up for a vote. Meanwhile, legislators in other states have been pushing their own Decalogue Displays.
There’s Louisiana, whose DD bill was signed into law last June, mandating that a poster with the Ten Commandments be hung in all post-secondary, primary and secondary school classrooms, including private institutions that receive state funds. It was enjoined in November by a federal judge on the grounds that it serves an “overtly religious” purpose, then allowed to go into effect in January by the 5th U.S. Circuit Court of Appeals — but only outside the five school districts specified as defendants in the case.
On Feb. 1, the judiciary committee of the Montana state Senate approved a DD bill modeled on Louisiana’s on a party line vote. Three weeks later, eight Republican senators joined Democrats to narrowly defeat the bill, 26-24.
Also in February, a DD bill went down to defeat in the South Dakota House, 37-31. The bill would have required posting next to the Ten Commandments evidence of how the commandments were “a prominent part of American public education for almost three centuries.” One supporter said he experienced a voice telling him, “If one person comes to Christ because the Ten Commandments are posted, vote yes.”
A DD bill has been introduced by two state representatives in Idaho as well. Also in the Idaho hopper is a bill from another state rep that would require the reading of Bible verses in all “occupied” public school classrooms, such that the entire Bible would be read over a 10-year period.
And did I mention that in Oklahoma, where we’re awaiting a U.S. Supreme Court decision on the constitutionality of a religious charter school, a DD bill has been revived? Stay tuned.
It’s been 45 years since the U.S. Supreme Court decided, in Stone v. Graham, that DDs in public schools violate the Constitution’s establishment clause because they fail to have “a secular legislative purpose.” That is the first prong of the so-called Lemon Test, the other two being that the “principal or primary effect” of a challenged government action “must be one that neither advances nor inhibits religion” and that it “must not foster ‘an excessive government entanglement with religion.'”
But the judicial worm has turned since 1980, not least in the realm of establishment clause jurisprudence. First, the Lemon Test was more or less supplanted by Justice Sandra Day O’Connor’s Endorsement Test, which holds that a government action should not be seen to endorse religion. Then, three years ago, in Kennedy v. Bremerton School District, the court’s majority rejected both tests in favor of interpreting the establishment clause by reference to “historical practices and understandings.”
The latter phrase was first used by Justice Anthony Kennedy in his concurrence in Allegheny County v. ACLU (1989), where he wrote that the majority’s reliance on the Lemon Test’s refusal to allow government to advance religion “reflects an unjustified hostility toward religion.” By making “historical practices and understandings” the sole basis for interpreting the establishment clause, the court has effectively opened the door to any and all past religious practices in the public schools.
Those practices would of course include the prayers and Bible reading that were outlawed in 1962 and 1963 but that your columnist is old enough to remember from elementary school. To be sure, such practices would be legally justified only on the grounds that they were, once upon a time, in common use. That’s not quite the same as permitting the government to take action just because it wants to advance religion (which actually would be the case for classroom DDs, for which there seems to be no precedent in U.S. educational history).
But there are recent Supreme Court viewpoints available to justify that too. Consider McCreary County v. ACLU (2005), the last Ten Commandments case decided by the court, which declared unconstitutional the DDs on the walls of two Kentucky courthouses.
In a bitter dissent, Justice Antonin Scalia argued that the DDs did not violate the establishment clause because the establishment clause does not prevent the government from advancing monotheism. “Today’s dissent,” replied Justice David Souter in his majority opinion, “apparently means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty.”
Testifying on behalf of the Texas DD bill two years ago, Matt Krause, a lawyer for the organization pushing DDs around the country, declared: “We think there can be a restoration of faith in America. And we think getting that Ten Commandments on these walls is a great way to do that.”
Today’s Supreme Court may in due course find a way to agree.