IFAS | Freedom Writer | April 1996 | legal.html

Turning back the clock in Tennessee

"The Religious Right has many people crippled and blinded. They're cowering when there's no need to cower. The government's job is not to suggest, promote or choose religious thoughts to be recommended to the people. That's the job of ministers, rabbis and monks, not legislators." Tennessee State Senator Steve Cohen, lone dissenter

By Barbara A. Simon, Esq.

On February 22, 1996 the Tennessee Senate approved, by a vote of 27 to 1, a resolution urging homes, businesses, places of worship, and schools to post and observe the Ten Commandments.

Passage of this bill is expected in Tennessee's House, despite State Attorney General Charles W. Burson's opinion that the resolution is unconstitutional. Mr. Burson based his opinion on the Supreme Court's ruling in Stone v. Graham (1980), which held that the Ten Commandments could not be posted in public schools unless they were integrated into a broader course of study.

In Stone v. Graham, the Supreme Court struck down a Kentucky statute which required the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the state. The Supreme Court utilized its three-pronged "Lemon Test" (announced in Lemon v. Kurtzman (1971)) for determining whether a challenged state statute is permissible under the First Amendment's Establishment Clause of the United States Constitution: "First, the statute must have a secular legislative purpose; second its principal or primary effect must be one that neither advances nor inhibits religion...; and finally the statute must not foster 'an excessive government entanglement with religion.'" If a statute violates any of these three principles, it must be struck down. The Supreme Court struck down the Kentucky statute finding that it had no legitimate secular legislative purpose. The Court explained: "The preeminent 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 Supreme Court decided Stone v. Graham (1980) by a 5-4 majority. Since that time, the Court's composition has shifted. There are seven new members on the Supreme Court. The justices in the Stone majority were Stevens, Marshall, Powell, White, and Brennan. The dissenting justices were Burger, Blackmun, Stewart, and Rehnquist. Since that time, Burger, Blackmun, Stewart, Marshall, Powell, and Brennan have left the Court. Only dissenter Rehnquist, now Chief Justice, and Stevens, then in the majority, remain. Justices Ginsburg, Souter, Breyer, Scalia, Kennedy, Thomas, and O'Connor have joined the bench since the Stone decision. If Tennessee's posting of the Ten Commandments law comes before the Supreme Court, the Court could refuse to hear the case, as it already ruled on the issue in Stone v. Graham, or it may decide to hear the case, providing the opportunity to reverse itself on Stone v. Graham, or even overturning the "Lemon Test" standard of review for Establishment Clause cases.

In addition to the resolution urging the posting of the Ten Commandments, Tennessee's lawmakers are looking into a ban on the teaching of evolution as fact. The legislation has raised concerns about academic freedom, religious freedom, church/state separation, parental rights, and governmental authority. The legislation is expected to pass, even though Tennessee Attorney General Charles W. Burson has issued an opinion that the bill violates the constitutional mandate for separation of church and state.

Tennessee, as you may recall, was the state where, in 1925, substitute biology teacher John Scopes was tried and convicted for teaching evolution. (The case was immortalized in Jerome Lawrence and Robert E. Lee's play Inherit the Wind.)

The sponsor of the evolution bill is State Senator Tommy Burks. Burks said he introduced the bill because constituents told him that evolution was being taught as fact in Tennessee schools, but offered no evidence in support of that assertion. As was the case with the state endorsed posting of the Ten Commandments, the Supreme Court has already ruled on the teaching of evolution issue.

In Epperson v. Arkansas (1968) the Court stuck down the Arkansas version of the Tennessee "anti-evolution" law that gained national notoriety in the Scopes "monkey law" trial in 1927. The Court relied upon the First Amendment's religion clauses and found that although the state has the right to prescribe the curriculum for its public schools, it does not have the right to prohibit "the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The Court looked at the legislative history of the Arkansas law and found that the "fundamentalist sectarian conviction was and is the law's reason for existence"; hence it violated the First Amendment's neutrality requirement.

In Edwards v. Aguillard (1987), the Court held unconstitutional a 1981 Louisiana law that required any school teaching the theory of evolution to also teach creationism as science. That law, like the Tennessee law, made no mention of God or the Bible, but the Court rules that its intent was clearly to teach religion as science.

According to an AP interview with Hedy Weinberg, executive director of the ACLU of Tennessee, the evolution and Ten Commandments bills are attempts by the radical religious right to "impose their particular religious viewpoints on Tennesseans." In lobbying against the bills, Weinberg said legislators asked her, "Are you asking me to vote against the Ten Commandments?" She replied, "I'm asking you to vote for the Ten Commandments and religious freedom by voting against the bill. Government should not be in the business of telling individuals to whom to pray, when to pray, and if to pray."

© 1998 Institute for First Amendment Studies, Inc.