Author: ADF Senior Legal Counsel David Cortman
Earlier today, Communications Director Joseph Conn of Americans United for Separation of Church and State authored a post on AU’s blog where he gloated over a federal judge’s decision upholding the State of Idaho’s ban on any use of all religious documents and texts in all public schools in the state. AU writes as though they “know” the law, but do they? One might come to the conclusions they do–assuming one is ignorant of the history of law involved in this case.
Is Idaho’s constitution “really clear” in that it forbids the use of any religious texts–even to study history or western civilization? What does the language of the Idaho Constitution actually state? After all, shouldn’t we look to the text when trying to decide what it says and what it doesn’t say?
The language in the actual constitution nowhere states that “no religious documents” may be used in the schools. That is the language used in the state’s newly created prohibition, but it’s not in the language of the state constitution, which states, “No sectarian or religious tenets or doctrines shall ever be taught in the public schools” and “[n]o books, papers, tracts or documents of a political, sectarian or denominational character shall be used….”
AU seems to think that’s close enough. Well, no, as it turns out. In fact, not even close.
If AU had bothered to read the records of Idaho’s constitutional convention, they would know that the founders were not prohibiting the use of the Bible or any other religious text. In fact, the author of this very section of the state constitution specifically stated that the language would not prohibit the use of the Bible in public schools.
What the records of the constitutional convention make clear is that the founders were prohibiting the sectarian quarrels of the time from being introduced as part of the schools’ programs. That’s what the founders were prohibiting, not the use of religious and political texts as reference materials in the classroom, as the writer of that portion of the constitution himself stated. But let’s not bother with the facts. They’re so boring.
Proof that the state and AU are (conveniently) not getting this right is the fact that, if they were consistent, they would also need to argue that the state constitution forbids reading the Declaration of Independence, the Mayflower Compact, and the Federalist Papers in school. After all, the language does say that “[n]o books, papers, tracts or documents of a political, sectarian or denominational character shall be used….”
But of course they won’t be consistent and argue for that, even though those documents can certainly be included in the ban as currently worded. If they argued for this, they would look foolish. So, does the state, and apparently AU, get to pick and choose certain parts of the state constitution that it wants enforced to further its own agenda, yet ignore others?
Continuing their gleeful support of the incredibly broad book-banning upheld by the court, AU confidently states that “[t]he U.S. Constitution is equally clear. Government is barred from making any law ‘respecting an establishment of religion,’ and the Supreme Court consequently has repeatedly barred public schools from promoting religion in the classroom.” Besides the fact that these two general statements have no application here, the U.S. Supreme Court has already ruled that “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” But apparently not in Idaho…at least not in AU’s Idaho.
Although AU picks on the founders of the school as having “a right-wing religious bent” (and isn’t that what this is really about?) and are therefore somehow deserving of this ruling, they ignore the fact that the ban applies to all public schools, at all levels, including college. And it is not merely a ban on teaching a religious book improperly in a public school to the exclusion of all others; it is a pre-use, flat-out, no exceptions ban, period.
Let’s be honest about how crazy this ban is: Think it’s just a ban on the Bible in public schools, even as a historical reference document? No. As worded, it prohibits many of the founding documents that are religious (and many, political). This would include Washington and Lincoln’s inaugural and farewell addresses, The Epic of Gilgamesh (one of the oldest texts in Western literature), The Iliad and The Odyssey, St. Augustine’s Confessions, and Martin Luther King Jr.’s “Letter from a Birmingham Jail” and his famous “I Have a Dream” speech. They won’t admit this, but who gets to decide what books are deemed “religious”? Big Brother? AU? No thanks.
And not to dampen the mood as Mr. Conn eats his celebratory fries, but the so-called “separation of church and state” is not the law of the land, nor has it ever been. Organizations like AU have twisted the words and meaning of the Constitution to fit their own ideological agenda. As aptly stated by a recent federal court of appeals, “The separation of church and state [is an] extra-constitutional construct [that has] grown tiresome. The First Amendment does not demand a wall of separation between church and state.”
And a lot of us folks are deeply grateful for that fact.