Do the Ten Commandments Belong in Public School Classrooms?

The Texas Senate has passed a bill that mandates posting the Ten Commandments in every public school classroom in the state. To become law, the bill still needs to be passed by the Texas House and signed by the governor, and I don’t know if that will happen. But I do know we’ve been down this road before.

A similar Kentucky statute mandating that the Ten Commandments be posted in classrooms was struck down by the U.S. Supreme Court 43 years ago. That case was Stone v. Graham, 449 U.S. 39 (1980). In a 5 to 4 decision, the Supreme Court ruled that the Ten Commandments is, obviously, a religious text, and that the state’s requirement that it be posted in classrooms was a violation of the Establishment Clause of the First Amendment of the U.S. Constitution. The Establishment Clause forbids the government from establishing an official religion and also prohibits government from any action that favors one religion over another.  See also Thomas Jefferson v. Establishment of Religion.

The Ten Commandments in Classrooms in Kentucky

The Kentucky law that required all public school classrooms display the Ten Commandments was passed in 1978. The plaintiffs who challenged the law in Kentucky courts described themselves “as a Quaker, a Unitarian, a non-believer, a mother of school age children and public school teacher, two children of compulsory school age attending public schools, a Jewish Rabbi, and as taxpayers.” The Kentucky courts upheld the law. One Kentucky judge wrote, “Basically, the Ten Commandments is a code of conduct which just happens to be rooted in Judeo-Christian history.” The judge said it isn’t necessarily religious, in other words.

The argument that something that’s obviously religious isn’t really religious is made in a lot of Establishment Clause cases. For example, the attorneys representing the school district in Abington School District v. Schempp (1963) tried to argue that the Bible is not an inherently religious text. In that case, school children were being required to recite or listen to Bible verses every day, but the children were free to interpret the Bible verses in a secular way if they wanted to. And in  Salazar v. Buono (2010), Justice Antonin Scalia claimed that a a large cross erected on public land to honor war dead of many faiths was not necessarily Christian, but just represented generic spiritual sentiments. Justice Scalia was soundly slammed by the nation’s editorial writers for that.

Applying the Lemon Test

In deciding the Kentucky case, the U.S. Supreme Court applied what is called the “Lemon test.” This test is named after another case, Lemon v. Kurtzman (1971). Lemon v. Kurtzman challenged the allocation of state taxpayer dollars to private religious schools. The money was to be used for instructional materials for secular subjects and to  supplement teacher salaries. The U.S. Supreme Court found this spending to be a violation of the Establishment Clause. In doing so, the justices applied a three-prong test:

1. Does the law have a clear secular purpose?
2. Would the law have the effect of either advancing or inhibiting religion?
3. Would the law create an excessive government entanglement with religion?

The “Lemon test” has been cited in most Establishment Clause cases since then. The Kentucky legislature tried to skate around the “excessive entanglement” test by stipulating that no taxpayer funds were to be spent on the Ten Commandment displays. Schools were to use donated money. The Kentucky law also stipulated that each Ten Commandments display must also include this disclaimer: “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.” This was supposed to affirm a clear secular purpose.

The Ten Commandments in Classrooms Advances Religion

The U.S. Supreme Court issued an unsigned ruling without waiting to hear oral arguments. It was later learned that the decision was written by Justice William J. Brennan Jr. Justice Brennan wrote,

“The pre-eminent 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. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.”

The Justice also wrote that “It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the ‘official support of the State . . . Government’ that the Establishment Clause prohibits.”

The Texas Bill and the Current Supreme Court

The Texas legislators believe the current Supreme Court will come to a different conclusion. In interviews, several of them cited the recent case Kennedy v. Bremerton School District (2022). In this case, a public high school football coach of Bremerton, Washington, named Joseph Kennedy used “motivational prayers” as part of his coaching. Players were expected to join in the “motivational prayers” while gathered in the locker room and in the middle of the field after each game. The post-game prayers became big spectacles as players from both teams rallied around the coach to join in. Then Coach Kennedy delivered “talks” with religious content that arguably amounted to sermons. Some parents complained that students were being pressured to take part. The Coach lost his job, and sued. In 2022 the Supreme Court sided with Kennedy, saying that Kennedy was engaging in private religious expression. Many legal experts complained that Justice Neil Gorsuch, who wrote the majority opinion, changed the facts of the case to arrive at his conclusion.

The Texas bill as passed recently by the Texas Senate requires every public school classroom to prominently display a copy of the Commandments, either framed or as a durable poster, with type large enough that anyone with average eyesight can read it from anywhere in the room.  Schools may use public funds to produce compliant copies of the Commandments, or they may accept donations. There is no disclaimer requirement this time.

The bill’s chief sponsor, state Senator Phil King (R-Weatherford), argued that the Ten Commandments are part of American heritage, and that Texas students should be taught “the importance of a fundamental foundation of American and Texas law.” The belief that the Ten Commandments are the foundation of U.S. law has long been popular with American Christian conservatives, but this belief doesn’t stand up to historical scrutiny. See The Ten Commandments and the Origin of Law.

The Texas Ten Commandments Bill Goes Further

The Texas bill goes further than the old Kentucky statute in one way: It stipulates the exact wording of the Commandments to be used.  The bill’s version is a slightly condensed version of Exodus 20:1-17 from the King James Bible.  This is taken directly from the bill as passed by the Texas Senate:

The text of the poster or framed copy of the Ten
Commandments described by Subsection (a) must read as follows:
“The Ten Commandments
I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the
land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor ’s house.
Thou shalt not covet thy neighbor ’s wife, nor his manservant, nor
his maidservant, nor his cattle, nor anything that is thy neighbor ’s.”

Sorry, but if posting the words “I AM the LORD thy God. Thou shalt have no other gods before me” in public school classrooms isn’t a violation of the Establishment Clause, I’m the Easter Bunny. But there’s no knowing what the current Supreme Court might decide. Some justices might very well claim that “God” isn’t really a religious figure.

Note also that John Litzler, general counsel and director of public policy at the Texas Baptists Christian Life Commission, opposes the new Texas law. “I should have the right to introduce my daughter to the concepts of adultery and coveting one’s spouse,” Litzler said. “It shouldn’t be one of the first things she learns to read in her kindergarten classroom.”