Wednesday, January 31, 2018
A bill is moving through the South Carolina legislature that would mandate the display of "In God We Trust" alongside the state motto--"While I breathe, I hope"--in every public school classroom in the state. The bill directs the State Board of Education to develop a poster with these mottos that all schools would use. In a bit of irony, this is one those unique aspects of the education code that would also apply to every charter school in the state. Apparently, other states, like Georgia, Florida, and Arkansas, are contemplating similar bills.
According to local news reporting, Rep. Mike Burns, the bill's sponsor, says
it’s time to bring the word “God” back in the school system. . . . [But] Rep. Burns says his goal isn’t to push the agenda of a certain religion. “Just because somebody references the name God doesn't mean that you’re pouring religion over their head.”
My reading of the cases suggests this bill raises serious constitutional problems. Courts typically look at three major issues in these types of cases: purpose, effect, and coercion. A religious purpose alone makes this type of legislation unconstitutional. If the goal is to put God back in schools, disclaimers to the contrary will not save the legislation.
The effect of the poster is, likewise, problematic regardless of the intent. The average person who sees a new poster in school that proclaims "In God We Trust" would almost certainly see it as an endorsement of religion. Seeing that motto in every classroom in the school would send an even clearer message. No other phrase or motto comes closes to holding that status. Nor to my knowledge has anything ever held that status. The only thing that comes close is the American flag, but of course, the flag is not a religious symbol. Yet, even with it, the Court has held, on other grounds, that schools cannot force students to participate in the pledge, with the idea being that it is beyond the power of schools to force students to accept or submit to idea. This applies to political as well as religious ideas.
Even more specific precedent bears on these posters. The Supreme Court and lower courts have struck down the moment of silence in schools (because the stated purpose in the state was to encourage prayer), and the display of the Ten Commandments in school because of the message it sends. The "In God We Trust" bill includes both problems--a religious purpose and a religious effect.
Although not directly on point, the Ninth Circuit also decided a case involving a teacher who had put up two large banners in his classroom that read "In God We Trust," "One Nation Under God," and "God Bless America." The school ordered him to take them down and he claimed it violated his First Amendment rights. The Ninth Circuit held that the school could order him to take them down without violating his rights. It did not answer the question of whether the school could allow these banners if it wanted. But it stands to reason that the school correctly perceived the banners to be violations of the establishment clause, which is why it could order them taken down.
To be clear, there is an important exception to the foregoing rules. The state can display religious texts when there is a secular purpose and effect. This means that, as part of teaching history or legal lessons, schools can potentially display the Ten Commandments, but only if the Commandments are surrounded other secular materials that make it clear that the overall purpose is secular not religious. Placing the Ten Commandments aside just one other document is not enough to lead to this conclusion. Thus, the South Carolina motto is unlikely to be enough by itself to make the overall display secular. To the contrary, placing those two mottos together sends an arguably even strong message that the South Carolina trusts in God--a message stricty prohibited if it means that. Neither the state nor its designee can endorse religion in any respect.
My suspicion is that lawmakers think there is a loophole because "In God We Trust" has been treated as what courts call a "ceremonial deism" in the context of U.S. currency and architectural fixtures. This area of the law is extremely difficult to reconcile with the generally applicable First Amendment standards. The simplest explanation is that the Court has said that the monetary and architectural references are not really religious statements. They are just utterances and mottos with no real meaning, but which we have stuck with through history for tradition sake, not to make a religious statement. Thus, they don't violate the First Amendment.
New uses of those mottos would appear different, particular when used for the purpose of making a religious statement. Using the motto as a backdoor way to try to make a new statement is unlikely to fit the narrow "ceremonial deism" exception. Schools simply have not always had these posters in the past, which would indicate an effort to make a new affirmative statement.
About a decade ago, the former Attorney General of Georgia disagreed with the foregoing analysis. He pointed out that the motto has been sanctioned in other contexts, so there is no reason to suspect it would be different in school. He, however, does not take up all the factors and cases that make the classroom far different than the dollar bill and buildings that are a century old. He did acknowledge that he could be wrong--as do I.