“Have To” History: Stone v. Graham (1980)

April 4, 2020June 4, 2023 ~ Blue Cereal

The following is a first draft for what I hope will become the follow-up to “Have To” History: Landmark Supreme Court Cases. I’m sharing some of the chapters as they’re written, partly to share with you, my Eleven Faithful Followers, and partly because nothing brings out the typos, grammar errors, and other shortcomings like publishing something online. Enjoy.

FOLLOW UP: The final version of this one (and the one that ended up in the book) can be found here.

Thou Shalt Post These In Every Classroom

Three Big Things:

1. Kentucky required that the Ten Commandments be posted in all public school classrooms without comment, but with a little disclaimer underneath about them being the “fundamental legal code of Western civilization.”

2. The Court applied the “Lemon Test” and determined that the legislation had no clear secular purpose; it was thus a violation of the Establishment Clause of the First Amendment.

3. Whereas recent cases had dealt with efforts to support the secular education of students in religious schools without running afoul of the “wall of separation,” Stone marked a new generation of cases focused on the reverse – seeing just how far religion could be brought back into public schooling.

Background

The Supreme Court’s decision in Stone v. Graham was announced on November 17th, 1980. Less than two weeks earlier, Ronald Reagan had been elected President of the United States, initiating what would later be called the “Reagan Revolution” – a resurgence of conservative values and policies anchored in an idealized past. The events leading to Stone began years earlier, but its outcome sent a message to the faithful in the 1980s similar to that of Engel v. Vitale and Abington v. Schempp two decades before: American’s fundamental values (meaning public promotion of Christianity) were under attack by intellectual elitists… aka “liberals.” And some of them wore robes.

Less than a month after Stone was decided, John Lennon was assassinated. In January of 1981, Reagan took office and began “making America great again.” The symbolism is purely retrospective; it’s not like the 1970s had been great for either side of the cultural divide. The U.S. had weathered Watergate, Vietnam, and a major energy crisis before succumbing to disco, of all things. Cult-leader “Reverend” Jim Jones had recently led his followers in mass suicide, the horrifying event from which the phrase “drinking the Kool-Aid” was coined. As the new year began, the U.S. was on Day 400-plus of the Iranian Hostage Crisis. Everyone knew the exact number each day because the evening news led with it every night.

The “Miracle on Ice” at the 1980 Olympics was nice, but it already felt like a LONG time ago.

In short, there are many for whom it may not have seemed like such a bad time to try to slip some old-time religion back into the classroom, and nothing was more old-time-y than the Ten Commandments.

Rules to Live By

There’s nothing like a decade or two of perceived dissolution and chaos to make law-and-order look wonderfully shiny and assuring, and the Decalogue fit the bill perfectly. It offered clear guidelines for proper living, literally set in stone, but minus the sort of detailed penalties and depressing legalistic minutia spelled out elsewhere in the Old Testament.

It didn’t hurt that it was more-or-less universally revered – Protestants, Catholics, even Jews liked it! (You know, all the REAL religions.) What more could one ask?

The State of Kentucky required that a copy of the Ten Commandments be posted on the wall of every public school classroom. The Commandments were purchased via private contributions, so no state money was used, and teachers were not required to discuss, promote, or even draw attention to the Commandments so posted. At the bottom of each copy was this explanation:

The 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.

And yet, there were a few parents who for some reason thought this might violate the Establishment Clause. The case worked its way through the courts until it was accepted on appeal by the big one.

The Decision

The Court’s 5 – 4 decision was nevertheless issued per curiam, meaning “by the court.” Per curiam decisions are traditionally for situations in which there was little need to elaborate on constitutional reasoning and the Court was so united as to eliminate the need for an identifiable voice speaking for the whole. Gradually over the course of the 20th century, however, the Court began allowing concurring opinions to per curiam decisions, then dissents… and eventually it became an unacknowledged tool for avoiding personal responsibility for controversial ideas or arguments.

In other words, per curiam opinions periodically allow a degree of avoidance and misdirection from a body otherwise recognized as unflinching and unafraid.

The Court’s anonymous majority opinion revisited the three-part “Lemon Test” laid out less than a decade before in Lemon v. Kurtzman (1971). Part one stated that in order to pass constitutional muster, a law must have a secular purpose to begin with. Clearly, the Court argued, that was not the case here. The Ten Commandments weren’t being used to study the evolution of written law, or in comparative religion, or even as literature or general history. They were just… there.

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Nor was the majority impressed by the State’s “Religious values? Are they really?” defense:

The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact…
We conclude that {this legislation} violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

Having failed the first test, there was no reason to discuss the remaining two. End of story.

The Dissent(s)

Four justices disagreed, but only one went to the trouble to elaborate as to why. Judging from his tone, Justice William Rehnquist (who’d later become Chief Justice) was shocked and a tad appalled that the Court wouldn’t simply take state legislators at face value when they explained that posting religious laws without context in every school classroom regardless of age level or subject matter was actually part of a very important historical lesson on the evolution of Occidental jurisprudence. Because isn’t that normally how lesson plans are put together – mass stapling of posters paid for by outsiders?

Rehnquist quotes from previous decisions extensively and rather effectively:

The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that “religion has been closely identified with our history and government” (Abington School District v. Schempp, 1963) and that “[t]he history of man is inseparable from the history of religion” (Engel v. Vitale, 1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments…

What was arguably his strongest rhetorical moment, however, came in one of his footnotes:

The Court’s emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.

Aftermath

Stone was one of the first cases to rule that even a “passive display” of religion could nevertheless violate the Establishment Clause. It was from this reasoning the Court would subsequently take issue with certain government-sponsored Christmas displays and other state-sanctioned religious ceremonies. The Ten Commandments in particular would become a symbolic “line in the sand” on various state capital grounds or displayed in a public building or two. Consistent with the Court’s decision in Stone, decisions in those future cases would often come down to context – where were they posted, how were they presented, and why were they included?

The 1980s would see a minor explosion of cases directly or indirectly related to the “wall of separation” between religion and public education. The question of equitable facility usage became a thing – can schools who allow community groups to meet on school grounds after-hours deny the same opportunity to religious groups? (Spoiler: Nope.) Indirect aid to religious institutions via tax credits for parents, secular school supplies, or simply sending over teachers kept coming before the Court, always in slightly different forms and forcing the Court to continually revise their solutions. There was even a brief foray into “Evolution vs. Creationism” before the decade was out.

By far the most interesting cases, however, would be ever-shifting efforts to circumvent Engel, Abington, and the rest by testing one problematic element at a time. Eventually, all sorts of religious expression in public schools would be framed as “student led,” but in the 80s it started much more simply. What if schools weren’t posting commandments, reading Bible verses, or leading students in prayers? What if every day simply began with a… “moment of silence”?

Turns out that one will be hard to dispute, no matter how obvious the intent. The right was finally going to have a few wins.

Wall of Separation (Supreme Court Cases & Such) – Updated

January 14, 2017June 4, 2023 ~ Blue Cereal

A few months ago, I started blogging about Supreme Court cases delineating the relationships between religion and public schooling. In order to use some of the case summaries in class, I started editing and reformatting them afterwards. Then I figured since the work was already being done, and this effort at providing classroom resources in PDF format was already underway… why not just post them as I go?

Here’s my in-progress summary of cases involving church/state issues in relation to public schooling – and a few which aren’t.

Building A “Wall of Separation” (Faith & School) – Brief background to the First Amendment and the Bill of Rights and Jefferson’s Letter to the Danbury Baptists which introduced the phrase “a wall of separation between Church & State.”

Everson v. Board of Education (1947) – It’s OK for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

McCollum v. Board of Education of School District (1948) – The use of public school facilities by religious organizations to give religious instruction to school children violates the Establishment Clause of the First Amendment. This does not prohibit teaching about religion, or schools allowing religious groups to use their facilities outside of school ours (as long as they do so equitably). It does prohibit coercing students into religious instruction as part of the school day.

Engel v. Vitale (1962) – The state can NOT require – or even promote – prayer in public schools as part of the school day.

Abington v. Schempp (1963) – The state can NOT require or promote the reading of Bible verses or recitation of the Lord’s Prayer as stand-alone activities during the school day. (Studying the Bible or the Christian religion as part of history, literature, etc., still perfectly appropriate.)

Board of Education v. Allen (1968) – It’s OK for the state to provide textbooks free of charge to all secondary students (Grades 7 – 12), including those in private schools. An important part of the Court’s reasoning in this case was that the textbooks constituted aid directly to students, rather than institutions.

Walz v. Tax Commission of the City of New York (1970) – Not specifically a ‘religion in schools’ case. It’s OK for states to offer property tax exemptions for groups serving the public good – even if they’re religious in nature.

Lemon v. Kurtzman (1971) – State aid to sectarian institutions such as private Catholic schools violates the Establishment Clause and is unconstitutional. This case also established “The Lemon Test” – “Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster ‘an excessive government entanglement with religion’…”

Wisconsin v. Yoder (1972) – The state’s interest in an educated citizenry is outweighed by the right of the Amish to maintain their faith and their communities. Parents may pull their children out of public schooling for religious reasons once they turn 16 – especially given the Amish track record for becoming productive, well-behaved members of society. The Court had previously attempted to distinguish between regulating beliefs and regulating behavior – in this case, the two were the inseparable. They instead introduced the idea of “balanced interests’ – the state’s interest in an educated populace vs. the parents’ or individual’ interest in pursuing their faith as they see fit.

Meek v. Pittenger (1975) – It’s unconstitutional for the state to provide materials and equipment for non-public schools, or to pay for support services for students at those schools. As in Allen, however, textbooks (for traditional subjects) were fine.

Stone v. Graham (1980) – State cannot require schools to post the Ten Commandments in public school classrooms, even if paid for by private money.

Mueller v. Allen (1983) – It’s OK for the state to let parents deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether their child attends public or private school, even if sectarian. Significantly, the Court determined that as long as the intent is secular, it’s OK for the effect to significantly favor parents sending their kids to religious schools. This case is considered one of the three foundational cases leading up to vouchers.

Wallace v. Jaffree (1985) – While a “moment of silence” is fine, any nudging towards prayer, especially with teacher participation, is unconstitutional. This issue will come up again.

Aguilar v. Felton (1985)– A NYC program sending public school teachers into parochial schools to provide extra help for disadvantaged children was ruled an unconstitutional “entanglement” of church and state, thus violating the Establishment Clause. This ruling was overturned a decade later in Agostini v. Felton (1997).

Witters v. Washington Department of Services for the Blind (1986) – A state agency which provided assistance to blind students pursuing education or job training may continue to do so even if the education/profession being pursued is religious in nature. This case didn’t involve public education, but did nudge along an understanding of the law which certainly does. This case is considered one of the three foundational cases leading up to vouchers.

Hazelwood v. Kuhlmeier (1988) – Students produced two articles for the school newspaper which dealt with teenage pregnancy and in which students at the schools shared their firsthand experiences, including various conflicts involving their families. The school principal determined the subject matter to be inappropriate and efforts to protect the girls’ identities insufficient, and the stories were pulled. Students protested that their First Amendment rights were being violated. The Supreme Court eventually ruled 5-3 that the principal had the right to make this decision because the newspaper was a product of the school and created as part of a journalism class, for which students were receiving credit and a grade.

Lee v. Weisman (1992) – It’s unconstitutional for schools to have clergymen offering prayers at graduation ceremonies, no matter how general or brief the prayers. Even if not technically ‘required’, or even on school property, participation is still coerced and thus a violation of the “establishment clause.”

Zobrest v. Catalina Foothills School District (1993) – Students attending private sectarian schools are still entitled to support services from public schools – in this case, a sign-language interpreter for a deaf student. This case is considered one of the three foundational cases leading up to vouchers.

Agostini v. Felton (1997) – Overturned Aguilar v. Felton (1985). It was no longer considered a violation of the Establishment Clause for a state-sponsored education initiative to send public school teachers into religious schools, so long as reasonable steps were taken to minimize “entanglement.”

Santa Fe ISD v. Doe (2000), Part One: Overview – Background to landmark Supreme Court Case in which the Court decided that organized prayer during school events using school resources was unconstitional – even if students “voted” on it.

Santa Fe ISD v. Doe (2000) – Part Two: If She Weighs The Same As A Duck… – The impact of mingling church and state on dissenters. Spoiler: it gets ugly rather quickly.

Santa Fe ISD v. Doe (2000) – Part Three: A Little Leaven Leaveneth The Whole Lump – The impact of mixing church and state on the faith being “defended.” Spoiler: it gets ugly rather quickly.

Let’s Talk About Vouchers, Part One (What Happened In Cleveland?) – Background to Zelman v. Simmons-Harris (2002), a seminal Supreme Court Case in which the Court decided that efforts to improve education in Ohio – including the use of vouchers – did not violate the Establishment Clause.

Let’s Talk About Vouchers, Part Two (Zelman v. Simmons-Harris, 2002) – My brilliant breakdown of the decision itself.

Let’s Talk About Vouchers, Part Three (The Majority Opinion in Zelman) – Insights from the Majority Opinion.

Let’s Talk About Vouchers, Part Four (The Story So Far) – A summary of more recent court decisions at various levels dealing with vouchers and other “school choice” variations as of December 2016.

The Ten Commandments (Part One) – Background, the “Lemon Test,” some cases which made the news but not the Supreme Court Docket, and two that did – McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005).

The Ten Commandments (Part Two) – Recap of Part One, Pleasant Grove v. Summum (2009), Green v Haskell County Board of Commissioners (2009), and Felix v. Bloomfield (2014).

There will be more. I’m looking at “moment of silence” stuff, and will eventually follow up on other “school choice” cases. I’ll probably grab some quirky school-related cases not necessarily tied to “wall of separation” issues as well, in which case I’ll probably have to rename the next update. In any case, if you’re into that sort of thing, check back soon.

A Wall of Separation – The Ten Commandments (Part Two)

November 4, 2016June 4, 2023 ~ Blue Cereal

In a few days, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. The proclaimed goal of the change is to allow the posting of the Ten Commandments on public grounds. Is it constitutional for government to make this happen? What if they merely allow it to happen? Is it constitutional for them to prohibit it if someone else wants it to happen?

Turns out the answers are a bit messy.

In Stone v. Graham (1980), it was determined that schools could not post the Ten Commandments or other religious materials in classrooms without historical or other pedagogical context – even if the materials were paid for by private money. Then again, that’s school – not the State Capitol.

In 2003, Alabama and Tennessee handled debates over the Ten Commandments in government offices by either firing the offender (Alabama) or moving the display to a slightly more private location, although still on government property (Tennessee). Neither situation reached the Supreme Court.

It was in 2005, though, that things got really interesting. On the same day, the Supreme Court announced its decisions in both McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) – both cases involving the Commandments on public land. While Kentucky’s displays were determined to be unconstitutional, the monument in Texas was acceptable. Both were split decisions, and the difference came down to context – both the displays themselves and the history behind them – and intent.

That’s where we left off last time. And now… now things get even murkier.

The little town of Pleasant Grove, Utah, allowed privately donated displays in its public park. Among the items placed there as of 2008 was a monument of the Ten Commandments – donated by that same Fraternal Order of Eagles group we met in Van Orden. The problem in this case didn’t stem from anyone’s request to remove the Commandments – quite the opposite. Instead, another faith wished to place their own monument in the park as well.

Summum is a faith and/or philosophy which originated in the 1970s, although it draws on ideas and sources from ancient times. It’s built around the Seven Aphorisms in the same way one might argue Judeo-Christian traditions are anchored in the Ten Commandments. According to Summum teaching, Moses was given these Seven Aphorisms by God on Mount Sinai, engraved on twin tablets. The Israelites were not ready, however, and Moses smashed the originals in frustration.

Moses returned with a second set of tablets, this time inscribed with “lower laws” which were more readily understood. These were the Ten Commandments, basic guidelines providing a starting place for the Israelites to grow and develop themselves.

Side Note: Summum produces a “spiritual nectar” – wine, by worldly legal definitions – infused with various “resonations” to help absorb spiritual concepts. Each variation contains a different concept, so followers consume whichever nectar corresponds to the truth they’re seeking that day. Presumably, it helps loosen up one’s understanding.

I, for one, find this a brilliant addition to any theology. They also have this thing about mummifying yourself and your pets after death which I’m much less excited about, but perhaps with enough “enlightenment nectar”…

In any case, the Summum church wanted to place a monument of the Seven Aphorisms in the park. They thought it would make a nice companion piece to the Ten Commandments already there. The city of Pleasant Grove disagreed. The mayor denied Summum’s request because the monument did not “directly relate to the history of Pleasant Grove.”

So here’s the question – is Pleasant Grove constitutionally required to accept all religious monuments if it accepts any religious monuments?

The Summum convinced the 10th Circuit Court of Appeals that it was. This decision was overturned when the case reached the Supremes, but it’s worth noting the initial leanings of the Circuit Court whose purview includes Oklahoma.

Of course, lower courts generally defer to decisions from higher courts – that is, after all, the whole idea – and the 10th will no doubt follow the lead of the Supreme Court if they think the case before them is comparable to something previously decided. But if there are critical differences in the details – and there are almost always critical differences in the details – things might easily go the other way.

The Supreme Court found that Pleasant Grove had a right to decide what was and wasn’t posted in its park – there was no “establishment” or “free exercise” issue. The decision was unanimous, but in addition to the majority opinion there were four separate concurring opinions submitted. This suggests that while the outcome was clear, the reasons behind it were varied. That matters the next time a similar case comes up – the results might depend on those critical details we just mentioned.

The majority opinion in Pleasant Grove v. Summum (2009) went something like this…

The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

A government entity is entitled to say what it wishes and to select the views that it wants to express. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. This does not mean that there are no restraints on government speech, but neither do they have to send messages which don’t represent their views.

Here, the Park’s monuments clearly represent government speech. Although donated, the City has “effectively controlled” their messages by selecting monuments that present the image that the City wishes to project to visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has expressly set out selection criteria.

A park is different from a forum at which many different speakers might represent many different viewpoints. Monuments are also different than holiday displays or temporary demonstrations favoring one belief or idea over another. The city has a right – within reason – to determine what’s appropriate for a permanent installation. If anyone can place any message in the park, it will soon be all messages and no park.

Point of Interest: The Summum tried to put up the same monument in a different city – Duchesne, Utah. In Duchesne, there was only one monument in the park – the Ten Commandments. After the decision in Pleasant Grove, Duchesne realized that they would be unable to refuse the Summum. An assortment of statues may be cultural and historical, but a single monument is “establishment of religion.”

They relocated the Ten Commandments to avoid the lawsuit.

There was one other case of interest in 2009 which involved a display of the Ten Commandments. This one never made it to the Supreme Court, but was decided by that same 10th Circuit Court mentioned above.

Haskell County, Oklahoma, had a Ten Commandments monument on their Courthouse lawn, along with several pieces honoring military veterans of various wars. James Green, a local resident, believed the monument violated the separation of church and state. With the help of the ACLU, he sued to have the monument removed.

The 10th Circuit Court of Appeals ruled in favor of Green. Haskell county commissioners appealed the decision, but the Supreme Court of the United States declined to hear the case. When that happens, the decision of the lower court stands.

In other words, during the same year the Highest Court was confirming Pleasant Grove’s right to pick and choose park displays, it was perfectly comfortable with Haskell County being forced to move their copy of the Ten Commandments.

I might have mentioned earlier how often the difference is in the details…

The Haskell monument was moved to the lawn of the American Legion, only a few feet away from the courthouse, where it remains today. Much like the graven image at the OCPA, within throwing distance of the State Capitol, anyone wishing to view the Ten Commandments can easily do so within easy reach of government land – just not ON that government land.

There’s one last case, from only a few years ago.

The city of Bloomfield, New Mexico, allowed the installation of a ginormous Ten Commandments monument on the front lawn of City Hall. While technically funded by private money, the proposal and oversite were the work of Kevin Mauzy, a member of the City Council.

Two locals objected to the monument as a government endorsement of religion and sued. The 10th Circuit Court of Appeals confessed the issue was somewhat tricky in light of McCreary County v. ACLU of Kentucky (2005), Van Orden v. Perry (2005), and other related precedents. In the end, however, the monument was ordered to be removed.

It’s possible that Felix v. Bloomfield (2014) is still being appealed, but I was unable to find any indication it’s going to the Supreme Court anytime soon. That means that the 10th District Court – the highest level of Federal Court likely to hear any case involving an Oklahoma monument – has consistently ruled for removal of religious artifacts from public grounds. The Supreme Court has slightly less consistent, finding at least one circumstance (in Van Orden) in which context and history offset any First Amendment concerns, but otherwise rejecting state efforts to “contextualize” religious displays after the fact – especially when the clear goal is to make a statement via the Ten Commandments.

Needless to say, Oklahoma’s efforts are very much of the latter sort. Only quite recently have proponents begun trying to pretend they want anything other than to be ‘King of the Religious Mountain’ with this issue.

Should SQ790 pass and the state proceed with relocating the Ten Commandments to Capitol grounds, we’ll no doubt quickly hear from the Satanic Whoevers and other non-Christian faiths, demanding to erect their own idols as well. While the decision in Pleasant Grove might give hope to those wishing to prevent a ram-horned Satan smiling down on innocent children from crowding out the “Thou Shalt Nots,” we will at the very least be looking at years of expensive litigation, with limited odds of long-term success – especially if any slightly more mainstream religions choose to get involved.

None of which has historically mattered to state leadership when it comes to throwing red meat to their constituents. As long as they can keep the masses convinced their guns are about to be taken, their kids forced to turn gay in order to graduate high school, or the Mooslims coming to enforce Sharia Law, they continue to be voted back into office. At the rate they’re decimating public education, there’s no reason to think things will be changing any time soon.

Too bad there’s not a “Thou Shalt Not” about that.

Related Post: Missing the Old Testament

A Wall of Separation – The Ten Commandments (Part One)

November 1, 2016June 4, 2023 ~ Blue Cereal

In about a week, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. According to proponents, the primary impetus behind this change is the re-installment of a ginormous graven image of the Ten Commandments on Capitol grounds. In practice, passage would open up a legion of church-state issues – including, but not limited to, the voucher-palooza much of current leadership has been craving for so long.

But what about the stated purpose? Is it constitutional to post the Ten Commandments on public grounds? Is it constitutional to prevent it, if someone else wants to put them there? The short answer to both questions is… Yes. Sort of. But not really. So, no. Well… maybe.

The First Amendment contains two specific clauses pertaining to religion. The first says that “Congress shall make no law respecting an establishment of religion” – the government can’t do anything to push a particular faith or favor religion over non-religion. This is known as the “Establishment Clause.” The second bit says “…or prohibiting the free exercise thereof” – meaning that the government also can’t discourage faith or punish religion over non-religion. This is called the “Free Exercise Clause.”

As anyone who’s ever had good friends go through an ugly argument knows, neutrality is far more difficult in practice than it sounds in theory. “Staying out of it” isn’t always possible. Responsible government, then, makes a good faith effort to avoid straying far into either danger – an imperfect balancing act at best, and one often complicated by strong emotions on all sides.

It’s difficult to say which has historically done the greater damage – a government that oppresses religion or a government that supports it. The first tends to end very badly for temporal authority; the latter tends to undermine the faith so favored.

So what has the highest court in the land said about the Ten Commandments on public property? Quite a bit, actually…

In Stone v. Graham (1980), the Supreme Court determined that posting the Ten Commandments in public school classrooms without context or educational purpose violated the Establishment Clause, and was thus unconstitutional. While it’s perfectly appropriate – even essential – to teach about faith as part of history, or to better understand literature, culture, or art, the disconnected posting of Bible verses is a big no-no.

But that’s school. Children are essentially a captive audience, and minors at that. What about government properties primarily utilized by grown-ups, who can drive and buy wine coolers and really ought to have better musical tastes by then? Do the rules change?

The Ten Commandments made the news in 2003 when a Chief Justice in Alabama and county officials in Tennessee posted copies of the Ten Commandments in their respective buildings – buildings paid for and maintained by government dollars for public purposes. Neither ended up in the Supreme Court, but defiant defenders of the displays clashed with civil libertarians verbally and emotionally. Add TV cameras and other local press, and… shenanigans!

The Alabama Justice lost his position over his refusal to remove the monument. In Tennessee the issue bounced around a bit until the county sheriff agreed to relocate the Commandments from the lobby to his office – still government property, but less ‘public,’ I suppose.

The issue picked up speed in 2004-2005.

Two different counties in Kentucky posted copies of the Ten Commandments in their courthouses. The ACLU sued, as they are wont to do, on the grounds that such displays violated the Establishment Clause. The counties responded that they weren’t displaying the Commandments as religious statements – pshaw! They were acknowledging “the precedent legal code upon which the civil and criminal codes of… Kentucky are founded.” Duh.

The District Court – the lowest level of federal court, where these sorts of cases almost always begin – applied what’s known as “The Lemon Test.” This was an informal checklist established in Lemon v. Kurtzman (1971) and often utilized thereafter to determine whether or not a government action violated church-state separation. It’s not a hard-and-fast rule by any means – several Justices over the years have openly rejected it – but it does come up fairly regularly in these sorts of cases, and it made sense for the local district court to utilized it here.

The Lemon Test:

1. A law must have a secular legislative purpose.

2. Its principal or primary effect must be one that neither advances nor inhibits religion.

3. The law must not foster “an excessive government entanglement with religion.”

The district court didn’t get past the first question. There was no secular legislative purpose, so bang – you lose. Thanks for playing, Kentucky – sucks to suck.

Not a people to go down easily, the counties revised their displays. They added a title, “The Foundations of American Law and Government,” and additional documents – excerpts from the Magna Carta, the Declaration of Independence, the Star Spangled Banner, etc. There was even a nice picture of Lady Justice, blindfold and all, holding the very scales Kentucky hoped to tip in their favor through these modifications.

The presentation emphasized the role of faith and the ‘Almighty’ in the development of the United States. They were largely ‘secular’ documents, but the cumulative message was one of divine guidance and inspiration.

This second effort didn’t make it to the Supremes. The Sixth Circuit Court of Appeals shot it down, explaining that the addition of other items without any particular connection to the Ten Commandments didn’t change the religious nature of the display.

Don’t worry, though, kids – Kentucky will be making yet another attempt before we’re through.

On the same day the Supreme Court announced its decision in McCreary County v. ACLU of Kentucky (2005), it addressed a similar case from Texas – Van Orden v. Perry (2005). Court-watchers were surprised to learn that while Kentucky’s displays were unconstitutional, a seemingly similar display in Austin, Texas, was determined to be acceptable. What was the difference?

The Texas display included an imposing six-foot monument inscribed with the Ten Commandments, so it wasn’t a matter of subtlety. This particular item, however, was located on the extensive grounds surrounding the State Capitol – grounds filled with sundry other icons related to the history and cultures of Texas. It had been donated forty some years before by the “Fraternal Order of Eagles,” a very non-religious civic organization, with additional support from Cecil B. DeMille – the producer/director behind “The Ten Commandments” and numerous other Hollywood blockbusters.

The Ten Commandments monument itself incorporated traditional American iconography – an eagle grasping the American flag and an eye inside of a pyramid – as well as two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. Surrounded by various war veterans, heroes of the Alamo, representative homesteaders, and even a replica of the Statue of Liberty, It was firmly established as an element of Texas culture and history.

Essentially, the question came down to context and intent. The Kentucky displays were clearly part of a pattern to test church-state limits and nudge religion into the public sphere as a matter of principle or political maneuvering, while the Texas display was reflective of the religious – and generally audacious – nature of Texans.

Not that it was as clear-cut as the explanation makes it seem. Both cases were decided by split 5-4 votes, and 8 Justices voted the same way both times. The difference was a single Justice, Stephen Breyer. He saw a difference in the two which eight other Justices did not – thus shaping jurisprudence and history for the foreseeable future.

Kentucky made one more run at it in 2010. They claimed to have “fixed” the problems with their original display and that it was no longer unconstitutional. What makes this claim… well, weird, is that the display itself hadn’t actually changed. Instead, Kentucky argued that their motivation – a significant reason they’d lost five years before – had evolved. Now they merely wished to include the Commandments as part of a “commemoration of historical documents.” The same display had magically become constitutional, because… history and culture! Like Texas!

In short, they wanted ‘backsies’. (As a back-up argument, they hoped the Court would consider getting rid of that ‘Lemon’ thing no one liked.)

The Sixth Circuit Court didn’t buy this “new context” even a little. Kentucky could not come back five years later and pretend none of the history associated with their efforts had occurred and none of their prior arguments had been made. Justice may be blind, but that didn’t mean it had mandatory short-term memory loss. (And we’ll decide when we’re through with the Lemon Test, thank you very much.)

Sorry, Kentucky – if you want to see the Ten Commandments displayed, you’ll have to go to Austin.

Related Post: Missing the Old Testament

Open Letter to Legislators: Should You Legislate the Bible?

May 24, 2016June 4, 2023 ~ Blue Cereal ~ 2 Comments

This post is addressed primarily to Oklahoma legislators or other office-holders in my poor, dysfunctional state. Since most of them won’t openly admit they read this blog obsessively – although obviously they must – loyal readers should feel free to send it to them or ask them these questions when calling or visiting their offices. I suspect some of our colleagues in neighboring states might find it relevant as well.

Ask not for whom the blog posts; it posts for thee.

Any Oklahoma politician – current, previous, or aspiring – who wishes to respond is welcome. The comment section is always open, but if you have more than a few hundred words, I welcome you as a Guest Blogger – whether I agree with you or not.

Dear Legislator:

Should you legislate the Bible?

I ask because it seems every time we read about something controversial being pushed through the legislature, the story is accompanied by a quote from the bill’s sponsor blaming God.

We’ve been told that Jesus is against handgun registration, that the Bible frowns on people of different genders using neighboring bathroom stalls, and that while God doesn’t want young ladies to know where babies COME from, He DOES insist they know how magical and special the little critters are up until they’re born, at which point He loses complete interest in them.

Jesus never did like children, as I recall.

Just last year we were assured that God wanted us to fudge our own history in order to play Him up – that He’d overlook our failings if we’d only brag about our national infallibility a bit more boldly. As it says in His Word, “Pride cometh before even more things to be proud of.”

He’s apparently uninterested in our tax policies, health care, or how we treat widows and orphans, but was QUITE worked up about Common Core for fear that someone at some point might read a dirty book – something inconceivable under existing guidelines. There’s simply no good reason to write about lust, rape, family dysfunction, or other perversion; such things suggest we are a fallen people in need of redemption. Better we stick to wholesome, happy stories like those in the Bible.

Our Legislators seem to have difficulty distinguishing between Yahweh, the “I Am”, and Tinkerbell, whose very existence hangs by the thread of our applause. Other times they treat the Lord Their God as a sort of corporate sponsor, demanding more patches and stickers pushing His brand or He’ll withdraw His funding. Neither makes sense to me based on the Bible I remember from my days of faith, so I’m hoping you can help me clarify.

Should you legislate the Bible?

If not, would you maybe briefly address what role faith should play for public office-holders in an intensely religious state such as ours? After that, thank you for your time – we’re good.

If so, would you please explain how this is consistent with the First Amendment and established Case Law regarding separation of church and state? How do you justify citing the Holy Book of one specific faith – one whose meaning is regularly debated even by those who accept it as divine – to make secular law?

How do you reconcile your Oath of Office (“I… do solemnly swear… that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma…”) with elevating your personal theology above either constitution? Did you lie when you took the oath, or do you consider yourself above keeping your word? If you believe the Bible is a higher authority than secular law, shouldn’t you have objected to taking this oath as a matter of principle?

If you support legislating the Bible, could you give us an idea of which parts you believe are appropriate to be written into secular law?

There’s been quite an obsession lately with having the Ten Commandments posted at the Capitol. Maybe we could start there.

One – “I am the Lord your God, who brought you out of Egypt, out of the land of slavery. You shall have no other gods before me.” Should this be secular law? No ‘gods’ before the Jewish god? How might we enforce that?

Two – “You shall not make for yourself an image in the form of anything in heaven above or on the earth beneath or in the waters below. You shall not bow down to them or worship them; for I, the Lord your God, am a jealous God…”

This one’s tricky. God isn’t apparently opposed to statues in general, only those which become objects of such obsession that the symbol takes focus off relationship with the divine – ceremony over substance, as it –

Oh! Um… guess I answered my own question there.

Awkward.

Three – “You shall not misuse the name of the Lord your God, for the Lord will not hold anyone guiltless who misuses his name.” For some reason this is commonly interpreted as exclusively about swearing. Sounds to me it pretty clearly includes those who claim to be acting in God’s name for selfish ends.

Four – “Remember the Sabbath day by keeping it holy. Six days you shall labor and do all your work, but the seventh day is a sabbath to the Lord your God. On it you shall not do any work, neither you, nor your son or daughter, nor your male or female servant, nor your animals, nor any foreigner residing in your towns…”

Why is this not law? This one would be so easy. And obviously it’s important to God – he made sure this was one of the TOP TEN, while stuff like homosexuality or handgun regulation didn’t even make the list. I assume you’re working on a bill of some sort…?

Five – “Honor your father and your mother, so that you may live long in the land the Lord your God is giving you.” I’m open to suggestions on this one.

Six – “You shall not murder.” Hey, this is a good one! This is already against the law, right? Score one for the Commandments!

Seven – “You shall not commit adultery.” Biblically this includes divorce and remarriage. How many of your peers in the legislature are on their second spouse? How many have had pre- or extra-marital sex? I’m asking because, as with stores being closed on Saturdays, God obviously considered this one WAY more important than some of the stuff being legislated in His name. I just wondered why this one keeps getting skipped.

Eight – “You shall not steal.” Too many easy jokes to be made here when the state is involved. Instead, we’ll count this one as another win for Commandments as Secular Statute. That’s what, two?

Nine – “You shall not give false testimony against your neighbor.” So… lying about someone else? Like, how you get elected, I guess? Or the various political games which are considered the norm ‘round those parts? Or the way various demographics or professions are caricaturized across the state and the nation, not because it’s true but in order to justify mistreating them?

Hello?

Ten – “You shall not covet your neighbor’s house. You shall not covet your neighbor’s wife, or his male or female servant, his ox or donkey, or anything that belongs to your neighbor.” Coveting is like desiring, or lusting, yes? But in a negative way? I’m not sure how you legislate away want. We seem intent on creating it, actually.

There are entire books in the Old Testament dedicated to rules and laws – would you clarify which you believe should be enforced today? Incest is in there, and still a ‘no-no’ all these years later. Eating shrimp is also a severe offense – why are we letting that slide? Homosexuality is arguably frowned on in the Old Testament, as is wearing mixed fabrics or allowing women to go about their business in the community while they’re on their period. Should we pick and choose, or just put all three into one bill?

Finally – and please, pardon my ignorance – why is it that nothing from the New Testament ever seems to be cited as justification for state legislation? Do we not believe the New Testament any longer, or is there something else I’m missing?

Liberals love to talk about Jesus’ treatment of children and the poor and such when it’s time to make public policy, at which point we’re firmly assured by those in power that such issues are best left to the church, the home, and private agencies. Could you help me understand why the ‘Thou Shalt Not’s are so essential, while anything helpful to the hungry, thirsty, foreign, poor, or sick – are clearly off-limits?

I wish there’d been professional law-makers and interpreters around while Jesus was physically walking the earth. They could have had these sorts of conversations and – assuming someone was willing to devote some papyrus and ink to recording them – we’d have a MUCH clearer understanding of how this whole law/grace balance is supposed to work.

Forgive my not being more up-to-date on my Bible scholarship. I’m sure there are good reasons to ignore Matthew 25:31-46 while focusing on the extensive time Jesus spent worrying about bathrooms, sexual immorality, handgun restrictions, and inadequate border patrol. That’s why I’m asking.

The most likely explanation is that I’m missing something obvious to you and your legislative peers. Otherwise, the rhetoric coming for OKC over the past several years would be nothing but a stream of self-serving cynicism, glaring contradictions, and rampant hypocrisy.

I look forward to better understanding this complex and emotional issue. Thank you for your time.