The Supreme Court has issued a series of rulings in recent years expanding the role of religion in public life, including in public schools. Now, a religiously diverse group of Texas families is asking the justices to draw a line when it comes to a state law mandating the display of a state-selected Protestant version of the Ten Commandments in every public classroom.
Or, rather, the families are asking the justices to reaffirm a line the high court already drew in 1980, when it rejected a similar Kentucky law to the Texas law the families are challenging.
“Nearly fifty years ago, Stone v. Graham … held that permanently posting the Ten Commandments in public-school classrooms violates the Establishment Clause,” the families said in their petition to the justices, referring to that 1980 precedent and the First Amendment clause that says, “Congress shall make no law respecting an establishment of religion.”
They also pointed to a more recent ruling, last year’s Mahmoud v. Taylor, in which the high court sided with Maryland parents who wanted to opt their children out of instruction that the parents said violated their religious beliefs on gender and sexuality. The Texas families said the Maryland ruling reaffirmed the court’s recognition of the importance of free-exercise rights under the First Amendment.
The petition in the Ten Commandments case therefore presents the justices with legal questions under both religion clauses: whether the establishment clause “forbids a state from mandating the permanent, conspicuous display of a government-selected version of the Ten Commandments in every public-school classroom” and whether “permanently displaying the Ten Commandments in every public-school classroom interferes with parents’ Free Exercise Clause right to direct their children’s religious education and burdens children’s religious freedom.”
The issue has sharply divided the federal appeals court that hears cases from Texas.
One group of judges that ruled against the families said the state law didn’t violate the establishment or free-exercise clauses. They reasoned that the Supreme Court’s Stone precedent from 1980 has been weakened by more recent high court precedent, and that the Texas law “bears no resemblance to the oppressive curriculum” in the Maryland case. The judges said the Texas law “authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’),” and that no student is “made to recite the Commandments, believe them, or affirm their divine origin.”
Dissenting appellate judges said the Stone precedent still controls the analysis until the justices explicitly rule otherwise. They also said the families had a winning free-exercise claim, one of the reasons being that the Ten Commandments “are plainly religious, and their contents are — by their very nature — plainly instructive.”
Seeking Supreme Court review of lower court rulings against them, the families argued in their petition that their appeal presents a “pressing and recurring issue of nationwide importance.” They said the question of whether a state can impose Scripture “on impressionable, captive-audience children — for nearly every hour of every school day, for up to thirteen years — implicates the most fundamental guarantees of the First Amendment and our Nation’s highest ideals.”
They said that over the past two years, at least 24 states have either adopted or considered adopting similar legislation about posting the commandments.
Texas officials will have a chance to respond before the Supreme Court decides whether to take the appeal. The justices are on a summer recess and will return to the bench in October to start their next term. We could learn in the fall whether the court is interested in taking the case, but the justices are not on a deadline to decide whether they will do so. It takes four justices to agree to grant review of a petition.
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