Imagine, for a moment, that you are eight years old, and you are one of about 1,200 students who are in third grade in public school this year in, say, Beaumont, Texas. (Any school system in Texas will do for this.)
Every time you and your young classmates go from one classroom to another, you see the Ten Commandments displayed on a wall. The plaque is big enough that you can read it from any place in each classroom.
And suppose that, as that child in Texas, you are puzzled when you read – for example — the line that tells you to “remember the Sabbath day and keep it holy.” Is that a religious instruction, or is it just advice about what a good person ought to do on the weekend? What is an eight-year-old being “commanded” to do?
That puzzlement is not peculiar to Beaumont, to Texas, or to third graders. It arises for every observer of the meaning of the display of the Ten Commandments on public schoolroom walls, as is now explicitly required by a Texas state law enacted last year. That law applies to every classroom in more than 9,100 public schools across the state, serving about 5.5 million students.
As one federal judge recently described the law’s breadth: “The Ten Commandments are required to be posted in every classroom of every public school during every hour of every day of the school year.” The law makes no provision for removing such posters; they are to be durable and permanent, and there is no way for any student to avoid exposure to the plaque even if the child is part of a family that does not share a belief in the King James version of the Bible and its wording of the Commandments.
If the young mind of an eight-year-old might be unsure how to react, that is hardly surprising. There is now considerable disagreement among sophisticated judges as they debate whether the Texas law is unconstitutional under the religion clauses of the First Amendment.
The Amendment commands government to be neutral about religion [a clause bans “establishment of religion”] and forbids government from coercing anyone’s faith, beliefs or practices or lack of them [a clause creates a right to the “free exercise” of religion].
The constitutional dispute is on its way to the U.S. Supreme Court, in a matter of weeks; the coming appeal will be a direct challenge to the Texas law.
Some judges have taken the view that the issue is already settled, against such laws. In a 5-to-4 ruling in the case of Stone v. Graham in November 1980, the Supreme Court struck down a Kentucky law that is quite similar to the Texas measure.
For the majority at that time, the constitutional question was so obvious that the law was overturned without a full hearing and without full legal briefs. The lead opinion took up less than five full pages; it could find no valid policy purpose that the law served. Since then, the Court has never overturned that decision.
The new test of the Texas law, however, will unfold in a Court that now has a six-Justice conservative majority that has gone far to expand the Constitution’s tolerance of religious expression and activity in America’s public life. That majority insists on generous treatment of purely religious groups in access to government benefits and requires heightened sensitivity to claims that religious freedom is under assault in an increasingly secular society.
None of the Justices who were on the Court in 1980 survives, so an entirely different bench will be involved.
Despite the current Court’s stronger sympathy for religious claims under the First Amendment, the Texas case will pose a historic challenge because the present majority has not been able to define with clarity what the religion clauses mean in modern America.
Three Justices have taken the lead in trying to spell out fresh theories on how to use history to interpret the religion clauses – Amy Coney Barrett, Neil M. Gorsuch and Clarence Thomas – but they are not completely together in that effort.
The same lack of clarity, in fact, could be seen just last Friday, on a lower federal court. A conservative-dominated federal court of appeals attempted to sort out what the current state of constitutional law is on the question of permanently displaying the Ten Commandments on public schoolroom walls. The full bench of 17 judges on that court (the Fifth U.S. Circuit Court of Appeals) joined in reviewing the Texas law.
That tribunal split 10-to-7, rejecting two major constitutional challenges to the Texas measure, but the ruling emerged in seven different opinions that totaled 118 pages.
The ruling set the stage for a prompt appeal to the Supreme Court. The Justices will have complete discretion about whether to get involved, but the lower courts are now split on the controversy, and that will enhance the prospects that the Court will step in. (A federal judge has struck down a similar law in Louisiana. There is a new law like that in Arkansas, and the issue is now under study in the South Dakota legislature. And, of course, there still exists the 1980 precedent against such a law.)
Moreover, the appeals court majority wrote boldly in the Texas case. While it did not decide flatly that the Supreme Court’s precedent in Stone v. Graham had been formally overturned, it did decide that the decision had rested upon an earlier method of interpreting the religion clauses and, it concluded, the modern Court has abandoned that formula, leaving the Stone decision without a constitutional foundation.
The dissenting appeals court judges made much of their argument that the majority had upstaged the Supreme Court on whether a precedent by the Justices remained intact and was still binding on lower courts.
The heart of the Fifth Circuit majority’s reasoning was that the Supreme Court now insists on deciding religion clause cases not by a formula that the Justices themselves have fashioned (the one used in the Stone decision), but rather by reviewing what the Constitution’s history meant during the Founding era, when the basic document was first written – 1789 — and when the First Amendment was first added — 1791 — or when the mandates of that Amendment were first applied to state and local governments — 1868..
That kind of judging goes by the name “originalism.” It is said to be a way by which modern judges can decide modern constitutional cases by a search for the “original public meaning” of the document.
Applying what it found in history, the Fifth Circuit majority said it was clear that the Founding generation wrote the First Amendment’s ban on “establishment of religion” primarily to end the practice of government formally adopting a given religious institution or doctrine as the official state religion or dogma. Thus, the majority said, a modern law like the Texas measure simply does not seek to “establish” any official religion, even though the legislature had embraced the King James version of the Ten Commandments as a history lesson that Texas students ought to know about.
The appeals court majority also declared that, in the nation’s early constitutional history, when officially-recognized religions actually coerced church attendance, membership and financial support, that was a form of explicit coercion of beliefs and believers.
It measured the Texas Ten Commandments law by that earlier coercive approach, finding that the mere exhibit of the Commandments in public school classrooms does not coerce any student or any student’s parent in any way that interferes with their religious freedom. Thus, examining the historic guarantee of “free exercise of religion,” the majority asserted that the Texas law involves no force or coercion at all.
Thus, if the Supreme Court grants review of the coming appeal in the Texas case, both of the First Amendment’s two religion clauses will be open – if the Justices are inclined to reach that far – to entirely new readings of the history of those clauses.
Because the Texas law is now in force throughout the state, those who challenge its constitutionality may seek to have the Supreme Court block its continued enforcement temporarily, while the Justices decide what to do with the actual test of the law’s validity.
