It's Debatable: The merits of requiring Bible reading, Ten Commandments in public schools

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether Senate Bills requiring posting the Ten Commandments in public-school classrooms and permitting time for Bible reading and prayer violate the First Amendment. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

Rosen - 1

On April 20, the Texas Senate passed two bills bringing religion into public schools. Senate Bill (“SB”) 1515 mandates that public schools post in all classrooms a required version of the Ten Commandments; SB 1396 permits schools to set aside time for bible reading and prayer (excluding children whose parents do not consent).

The Supreme Court has held that posting the Ten Commandments in public-school classrooms and conducting school prayer and bible reading in public schools violate the First Amendment’s Establishment Clause. The bills’ sponsors believe last year’s Supreme Court decision in Kennedy v. Bremerton School District (permitting a football coach’s silent prayer on the 50-yard line) altered First Amendment jurisprudence to permit such religious activity. Kennedy overruled a 1971 Supreme Court decision—Lemon v. Kurtzman—which created a three-part test for determining Establishment Clause violations: when a state statute has a religious purpose; when the statute’s primary effect is to advance or inhibit religion; or when the statute fosters excessive government entanglement with religion. Instead, the Court stated that it would interpret “the Establishment Clause by reference to historical practices and understandings.”

In Engle v. Vitale (1962), the Court defined the Establishment Clause’s historical understanding: The Establishment Clause’s “first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion …. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perver-sion’ by a civil magistrate.”

The Senate Bills violate this historic understanding. First, the first five Commandments convey a purely sectarian message, and SB 1515 imposes a version of the Ten Commandments to which not all subscribe. SB 1515 places the state’s imprimatur on a specific religious belief and text. As a matter of history, the Texas Senate has no business dictating the display or contents of the Ten Commandments.

Second, the Court in Kennedy distinguished prayer involving public-school students, finding it to be “problematically coercive.” Thus, for example, will the prayer and bible reading be sectarian (i.e., Christian) in character? What happens to children whose parents do not consent to classroom prayer and bible reading? Are Jewish, Muslim, Hindu, Buddhist, or Wiccan children permitted to conduct their own prayer and holy-book readings? By opening schools to religious services, the Senate may get more than it bargained for.

Moster - 1

I am not troubled at all by the potential passage of SB 1396 which sets aside time for bible reading and prayer on school property. That said, the mandatory posting of the Ten Commandments as set

forth in the companion Senate Bill is potentially problematic although likely permissible from a constitutional law perspective.

Rick properly cites the recent Supreme Court ruling, Kennedy v. Bremerton School District which held that a high school coach could not be disciplined for exercising his First Amendment protected rights to pray silently on the 50-yard line. The Court now interprets the Establishment Clause by referencing “historical practices and understandings”. Although Rick seeks to discount the significance of Kennedy by referencing a 1962 decision – Engle v. Vitale, the holding clearly allows for school bible reading and prayer with room to spare.

Justice Gorsuch in his Majority Opinion in Kennedy recounts the historical practice and understanding of none other than James Madison, the principal author of the Constitution, who proscribed any regulation or suppression of religion by governmental authorities. “Where the Free Exercise Clause protects religious expression, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious action… That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framer’s distrust of government attempts to regulate religion and suppress dissent. (Cite to Writings of James Madison).

The critical importance of learning tolerance as a goal in a pluralistic society is also highlighted by Justice Gorsuch. “But learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry. Lee, 505 U.S. at 590.’”

The import of SB 1396 is to make clear Congress’s intent to make good on Madison’s admonition of government regulation of religion with the likely effect of prohibiting school boards from restricting voluntary school prayer. Should another school official face discipline or discharge for conduct analogous to praying on the 50-yard line, he or she will now have an act of Congress to protect such religious expression under the First Amendment. Also, as recognized by the Court in prior decisions and accentuated in Kennedy, the non-mandatory and voluntary reading of a school prayer can only advance the interest of tolerance and understanding in a pluralist society.

I would also add that the Senate Bill prohibits a student or employee from being permitted to participate in the period of prayer and bible reading unless they submit a signed consent acknowledging that they had the right to participate or not. This language adds a layer of protection to immunize students and employees from compulsory and objectionable participation in prayer.

That said, the companion Senate Bill which mandates the posting of the Ten Commandments on school property may be potentially problematic for dogmatic constitutional law scholars and critics. Unlike the school prayer legislation which is not a compulsory school requirement, SB 1515 puts the Ten Commandments out there front and center for all to see regardless of religious affiliation or lack thereof. Although most if not all religions recognize the sanctity of the Ten Commandments, atheists would have difficulty countenancing same. However, based on my reading of Kennedy and critically – the importance of proscribing government suppression of religion coupled with the goal of promoting tolerance and pluralism – my prediction is that the Ten

Commandment will just barely pass under the “Constitutional Limbo Stick”. (Cite to Chubby Checker).

In a perfect world, it would be unnecessary for Congress to legislate the conduct of a simple prayer reading and bible posting. The overreaching regulation of religion and attacks on the First Amendment, however, have made this necessary.

Rosen - 2

SB 1396 and SB 1515 are clearly unconstitutional.

First, in 1947, in Everson v. Board of Education, the Supreme Court held for the first time that the Establishment Clause applies to the states through the Fourteenth Amendment, and ever since it has unswervingly ruled that prayer and bible reading in public schools violate the Establishment Clause. In 1962, the Court deemed a legislatively crafted school prayer unconstitutional (Engel v. Vitale); in 1963, it included in-class bible reading (Abington v. Schempp); in 1980, the Court found that posting of the Ten Commandments in classrooms violates the Constitution (Stone v. Graham); in 1985, the Court ruled unconstitutional a law authorizing a moment of silence for meditation or prayer (Wallace v. Jaffree); in 1990, it did the same with clergy-led prayer at middle- and high-school graduations (Lee v. Weisman); and in 2000, it held student-led prayer at high-school football games violates the Establishment Clause (Santa Fe School District v. Doe). In McCollum v. Board of Education (1948), the Court struck down a program similar to SB 1369—a school policy allowing students to be released, with parental consent, to religious classes conducted during school hours.

Second, SB 1369 violates the historic understanding of the Establishment Clause. In a concurring opinion in McCollum, Justice Felix Frankfurter explained that “long before the Fourteenth Amendment subjected the States to new limitations, the prohibition of furtherance by the State of religious instruction [in public schools] became the guiding principle, in law and feeling, of the American people…. [And] by 1875 the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the consciousness of the nation.”

Third, the Court in Kennedy v. Bremerton distinguished school classroom prayer from Coach Kennedy’s 50-yard-line prayer, finding it “problematically coercive.” Thus, the Texas Senate cannot rely on Kennedy as a basis for overruling 75 years of Supreme Court school-prayer jurispru-dence. Likewise, with respect to SB 1515, the Court is unlikely to overrule Stone v. Graham, which prohibits the posting of the Ten Commandments in classrooms.

Fourth, the Court in Everson expounded an immutable principle: states may not “pass laws which … prefer one religion over another.” Thus, if schools set aside time for Christian bible reading and prayer—even before normal school hours—they must accommodate non-Christian students who wish to have similar meetings at the same time. This includes not only mainstream religions (e.g., Islam, Judaism), but nontraditional and unpopular sects as well. In short, SB 1396 may produce wholly unintended consequences.

Moster -2

The Court in Kennedy has set forth a new standard to determine whether school prayer in a public school violates the Establishment Clause. The Majority Opinion from the first paragraphs references the alleged violative conduct of the football coach praying on the 50-year line and made clear that the standard to be applied references “historical practices and understandings”. With all due respect to the Court’s lack of clarity, such an amorphous test could apply to almost anything notwithstanding Rick’s citation to prior case law. In the same manner the Supreme Court overruled Roe v. Wade, it will discount or even ignore prior restrictive cases and embrace the new litmus test. Although I personally agree with the proposed Congressional legislation and will be pleased with the likely result, it does give me great concern as a lawyer and citizen.

From our first days in law school, we are taught the pivotal concept of what is known as stare decisis which literally means “to stand by things decided”. The bottom line is that all courts and especially the Supreme Court should abide by its prior cases in rendering a decision. The troubling politicization of the Supreme Court has derailed this fundamental principle as evidenced in a slew of rulings epitomized by the Dobbs v. Jackson decision overruling decades of legal precedent protecting the right to abortion. For the record, I am opposed to abortion but again cannot countenance rulings which appear to be divined from thin air. Whether you are conservative or liberal or somewhere in between, the swinging pendulum of the Supreme Court presents an ever-present danger to all of us as there is no certainty in the rule of law.

That said, Rick makes a good point that the Court in Kennedy “distinguished school classroom prayer from Coach Kennedy’s 50-yard line prayer, finding it ‘problematically coercive’.” The distinction here is that the Senate Bill removes any hint of coercion by requiring that the student submit a signed consent acknowledging that he/she had the right to participate or not. Such a provision should clear Rick’s proposed hurdle with ease.

I would bet the farm or in my case “the firm” that the proposed Senate Bills will pass Court scrutiny. However, I do have an unsettling feeling as I type these last few lines as the Court has shed its vestige of legitimacy and appears to be the judicial equivalent of “The Emperor’s New Clothes”. I may win this debate battle but lose everything I once held sacred in my 37 years of professional practice.

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable Bible reading, Ten Commandments, prayer public schools