by Noah Feldman
A new law in Louisiana requires every public school classroom to display the Ten Commandments. Similar laws are under consideration in Texas and Utah, as well as Oklahoma, where the state superintendent of education has ordered that the Bible be taught in all classes from fifth grade to 12th grade. In Ohio, kids are being bused from their public elementary schools to religious classes, then back to school, all during the school day.
Wait, you say. Don’t these initiatives violate the establishment clause of the First Amendment of the U.S. Constitution — the bit that’s supposed to keep church and state separate?
They may have, once. But that’s less clear following the conservative constitutional revolution at the Supreme Court — the one that has, in the last three years, overturned decades of precedent on abortion, guns and affirmative action.
The reason we’re seeing this raft of religious legislation now is a 2022 case called Kennedy v. Bremerton. In it, the court struck down the Lemon v. Kurtzman precedent that has guided interpretation of the establishment clause since 1971, as well as Justice Sandra Day O’Connor’s modification of the Lemon case, known as the endorsement test. Those decisions followed a set of rulings in the 1960s that ended prayer and Bible reading in public schools, which themselves led to efforts to circumvent the law with moments of silence and the like.
In Bremerton, the court’s conservative majority rolled back the clock. The opinion by Justice Neil Gorsuch offered a new test based on “history and tradition” — the conservative justices’ favorite new doctrinal shiny object, which they also used in the precedent-overturning 2022 rulings of Dobbs (abortion) and Bruen (guns). The history and tradition approach lets the justices pick their preferred examples from the past and ignore countervailing evidence.
The Gorsuch opinion in the Bremerton case operated like a bat signal to conservative Christian activists all over the United States. Its message was simple: All bets are off. Go right ahead and enact laws and practices that would have been unconstitutional before. When they are inevitably challenged, the lower courts will have to start from scratch and try to ascertain what history and tradition requires; some of the cases will be decided by conservative judges interested in rewriting history; and ultimately, the Supreme Court will decide.
It is of course possible that the conservative majority will do the right thing and preserve the history and tradition of the last 50 or 60 years, which protected students in public school classrooms from being coerced into religious practices. But don’t count on it.
Take the Ten Commandments displays in Louisiana classrooms. If the justices were really attuned to the original meaning of the First Amendment, they would begin by recognizing that every American in 1791 agreed that the government unconstitutionally established religion if it coerced people to participate in religious activities or be exposed to religious teaching against their will. Subjecting children in government-funded schools to the unquestionably religious Ten Commandments violates the establishment clause as a form of coercion.
But the courts, including the Supreme Court, could go the other way. They could, for example, draw a tenuous distinction between displaying the Ten Commandments and reciting them. They could claim there is nothing coercive about being in a room with the Ten Commandments if no one makes you do anything in relation to them.
Or more radically still, the justices could repudiate the Supreme Court decisions from 1962 and 1963 that ruled school prayer and daily Bible reading in the public schools to be unconstitutional. After all, those decisions reversed more than a century of history and tradition in which both prayer and Bible reading were commonplace in public schools.
As for teaching the Bible, as in Oklahoma, the justices could ignore the obviously coercive effect of requiring children to engage in Bible study. They could claim that the Bible can be studied as literature or as part of the legacy of Western thought. Then they could create a presumption that teaching the Bible is legitimate unless shown to be expressly religious. Again, the history and tradition of Bible reading in public schools until the Supreme Court overruled the practice in the early 1960s could be mustered to support compulsory Bible teaching.
Then there is the Ohio program, funded by private religious donors rather than the state. The old name for taking kids from school during the school day for religious instruction is “release time.” In a 1952 case called Zorach v. Clauson, the court ruled that such release time programs were constitutional provided that they took place off school property. The opinion is notorious for justice William O. Douglas’s pronouncement that “we are religious people whose institutions presuppose a Supreme Being.” (Douglas, whose father was a Presbyterian minister, never spent a day in church as an adult — but when he wrote the Zorach opinion, he was hoping to become the Democratic presidential candidate in 1952 and presumably wanted to appeal to a religious audience.)
Under either the Lemon test, which required government action to have a secular purpose, or O’Connor’s endorsement test, which said the government could not send the message of endorsing religion, release time was probably unconstitutional. Now that those precedents are gone, the Supreme Court could dust off Zorach and uphold the Ohio release time program.
The upshot is that there are going to be many more similar religious initiatives coming our way, and the lower courts are going to be pressed to decide them on the basis of solid constitutional analysis, not historical make-believe. The issues will be coming soon to a courtroom near you, and then to the big one in Washington, D.C.
