This article was published in cooperation with the Seigenthaler News Service.
Tennessee would become the first state in the nation to make the Bible its official state book if Gov. Bill Haslam signs legislation recently passed by the General Assembly. Haslam has raised questions, as has Tennessee Attorney General Herbert Slatery, about the constitutionality of such a law.
A Q-and-A with First Amendment expert Ken Paulson, developed as part of the John Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State University, offers perspective on the First Amendment issues involved.
What are the constitutional questions surrounding this legislation?
In guaranteeing all Americans freedom of religion, the First Amendment of the Constitution also specifies that government may not pass laws “respecting an establishment of religion.”
The Supreme Court in 1947 interpreted that to mean that government may not pass laws — in former Chief Justice William Rehnquist’s words — “that aid one religion, aid all religions, or prefer one religion over another.” Designating the holy book of one faith would almost certainly constitute favoring one religion over another.
The sponsors of the Tennessee bill say this is not about promoting religion, but rather about recognizing the historical and culture significance of the Bible to Tennessee. If their purpose is not to endorse a religion, could that still be considered a violation of First Amendment rights?
First of all, I think it’s fair to be skeptical of the claim that this has nothing to do with religion. It is the most holy book for a majority of Americans. And I’m confident that most people see it as a book that reflects their faith rather than a global history. But even if we give these legislators the benefit of the doubt and conclude that they are not attempting to promote religion, their motive is not dispositive. The key question is whether this government action favors one religion over others. And it’s hard to see it doing anything but that.
But religion is not invisible in government. What about governing bodies who hold prayers before meetings, and our national motto, “In God We Trust”?
Courts have upheld ceremonial expressions of religion by public officials in public places. This is largely a recognition of tradition, and judges tend to see it more as a matter of habit than of worship.
That said, the biggest reason this is a little muddy is because in 1956, the U.S. Congress passed a resolution making “In God We Trust” our national motto. This was done at the height of the Red Scare. And our government was determined to embrace God on every level to separate themselves from the “godless commies.” It’s in that same environment that they also chose to rewrite the Pledge of Allegiance to say “In God We Trust.” Everything surrounding the adoption of “In God We Trust” in that era indicates they did it for purely religious reasons. They were candid about it in those days.
Once it became our national motto, courts were able to conclude that it was a governmental phrase and not a religious one. It allowed courts over the years to sidestep the issue, and allowed governments to put “In God We Trust” on any wall they wished. Because as odd as it sounds, courts now regard the national motto as not being religious in nature.
Liberty Counsel, a socially conservative legal group, has said recent court rulings upholding Good Friday as a government and school holiday may give some legal grounding for defense of a law that made the Bible Tennessee’s official state book. How would court rulings like these square with the First Amendment?
When reviewing whether something violates the establishment clause, a court will look at a number of factors including whether the legislation has a secular purpose. It makes sense in some situations to schedule a school day off when a significant percentage of your students are already going to be out of school because of a religious holiday. The secular purpose would be to maximize enrollment in the classroom and minimize the number of days students would miss. That might be defensible. But on the other hand, if it’s a calculated effort to only allow days off when a particular faith is celebrating that would raise serious constitutional questions.
What factors does a court use to determine if something is a violation of the First Amendment’s establishment clause?
In 1980, the Supreme Court developed a test that has three parts. To uphold a law with a religious impact, it must have a secular purpose, its principal impact “must be one that neither advances nor inhibits religion,” and the law must not entangle government with religion.
In this case, the adoption of the Bible as an official state book would seem to advance religion and entangle government with faith.
But didn’t the Supreme Court uphold a Ten Commandments monument on capitol grounds in Texas in 2005?
Yes, it did that on the same day that it struck down the display of the Ten Commandments on government grounds in Kentucky. Here’s the difference. In the Texas case, the Ten Commandments monument was one of 39 monuments and historical markers spread over 22 acres on the capitol grounds. The court concluded that with that breadth of monuments, the Ten Commandments display was simply one more element of Texas history.
There’s a parallel here. Public schools are not allowed to celebrate Christmas per se, but they are absolutely free to recognize multiple religious holidays and celebrations as part of the educational process.
Imagine that instead of adopting an official state book, the Legislature adopted instead an official state library and designated 100 books of wisdom and cultural influence. In that setting, I don’t think you would have anyone objecting to the Bible being embraced.
Ken Paulson is president of the First Amendment Center and dean of the College of Media and Entertainment at Middle Tennessee State University. The interview was conducted by Deborah Fisher, director of the John Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State University.
Photo by Phillip Taylor // Flickr
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