Dispatch Faith: Why the Ten Commandments Don’t Belong in Public Schools, by Michael Helfand (Pepperdine):
Church-state separation is on the retreat at the Supreme Court—and with good reason. The once-dominant “wall of separation” metaphor never quite fit the nation’s constitutional tradition or historical practice. From Founding-era practices like legislative prayer and military chaplains to later traditions such as “under God” in the Pledge of Allegiance and “In God We Trust” as the national motto, religious expression has long been woven into American public life. And in the past two decades, the court has taken increasing notice of this history. Contrary to prior decades, religion is no longer treated as persona non grata in the public square.
But the ebb of these misguided constitutional constraints may now be reaching a tipping point. While conservatives have long thought the Supreme Court’s old establishment clause ways went too far, discarding too much of the disestablishment project threatens a core constitutional value: the ability of citizens to make their own religious choices free from government proselytization and manipulation.
Yet that is the new danger under the court’s reworked establishment clause framework. And if you’re looking for the doctrinal canary in the jurisprudential coal mine, look no further. In a first-of-its-kind decision last month, the 5th Circuit upheld the constitutionality of the Ten Commandments in every public school classroom. In so doing, the federal court of appeals announced a provocative new constitutional standard: The First Amendment only prohibits “compelled formal religious exercise.” Everything else—no matter how aggressively the government uses its authority and resources to promote a religious orthodoxy—is fair game. That cannot be right. …
The demise of absolute separation served to greenlight a whole host of states eager to inject religion into the public square. And like a teenager with a new car, some states immediately began testing how fast and far they could go. Over the past two years alone, Louisiana, Arkansas, and Texas have each enacted laws requiring the Ten Commandments to be displayed in every public school classroom. In the minds of these states, the old separationist precedents no longer constrained them. After all, the Supreme Court had made clear that history now mattered most—and founding-era examples of government religious expression were considered constitutional precisely because they were not understood to coerce religious observance.
This was precisely the logic the 5th Circuit—the only federal court of appeals to address the issue thus far—embraced in upholding Texas’ Ten Commandments law. With history as its guide, the court reasoned that the establishment clause prohibits only coercive religious observance—forcing citizens to attend church, compelling prayer, or requiring participation in “a formal religious exercise.” So long as the government stopped short of formal coercion of religious exercise, the Constitution posed no barrier to religious expression in public schools and other public institutions. And if that meant children in public schools spent all day staring at the Ten Commandments, so be it. Nobody was forcing them to do anything.
The problems with this approach, however, are easy to see. Does it mean that public schools can reintroduce prayer so long as students are given the right to opt out? Could teachers encourage students to believe in the one true God—whoever that may be—so long as they stopped short of requiring participation in a religious exercise?
This is precisely why, for decades, conservative Supreme Court justices rejected this Clockwork Orange view of the establishment clause—one that allows government to pry open the eyes of its citizens and deploy the techniques of religious proselytization so long as it stops short of compelling formal religious exercise. Already in 1983, in one of the court’s earliest decisions grounding the establishment clause in historical practice, the court made clear that government religious expression becomes unconstitutional when it would “proselytize or advance any one, or … disparage any other, faith or belief.” …
There’s a reason so many conservative justices over the past 40 years have rejected the idea that the establishment clause prohibits only compelled religious exercise. If government is permitted to use its power, prestige, and resources to overwhelm citizens with government-preferred religious messages, it paves the way for the manipulation of religious conscience, especially when dealing with children in classrooms. Protecting the independence of religious conscience is a core constitutional commitment, expressed perhaps most famously by James Madison in his 1785 “Memorial and Remonstrance Against Religious Assessments,” where he insisted that “[t]he Religion then of every man must be left to the conviction and conscience of every man.” The First Amendment is allergic to religious orthodoxies.
For this reason, requiring the Ten Commandments in public school classrooms crosses a fundamental constitutional line. It is precisely why critics worry about what comes next. Even professor Michael McConnell, the intellectual architect of much of the court’s modern establishment clause jurisprudence, has argued against the constitutionality of this new wave of Ten Commandments statutes. If weaving religious orthodoxy into the classroom is now fair game, why not return to school prayer—so long as, as a technical matter, students are permitted to opt out? Never mind the pressures of adolescent conformity.
However much the Ten Commandments may contribute to our moral tradition, protecting religious conscience means keeping them outside of public classrooms. Religious truth should not be dependent on the machinery of the state.
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