Q&A with expert and MTSU media
dean Ken Paulson
MURFREESBORO — 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&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.
