Will Hallisey of Greenwich High School is the recipient of the Third Prize Award Over Jefferson’s Wall: The Ten Commandments and Sacred Text in the Public Classroom
“The Government of the United States is not in any sense founded upon the Christian Religion.”
The Treaty of Tripoli (1797), signed by President George Washington and approved by the
United States Senate
“There cannot be the slightest doubt that the First Amendment reflects the philosophy that
Church and State should be separated…The First Amendment, however, does not say that in
every and all respects there shall be a separation of Church and State. Rather it studiously
defines the manner, the specific ways, in which there shall be no concert or union or dependency
one on the other. That is the common sense of the matter…We are a religious people whose
institutions presuppose a Supreme Being.”
Justice William O. Douglas writing for the Court, Zorach v. Clauson
The twin ideals of Democracy and Religious Freedom serve as the pillars upon which our
nation was founded over two hundred years ago, with the birth of a national identity and
consensual self- determination as the United States Constitution began, “We the People of the
United States, in Order to form a more perfect Union…secure the Blessings of Liberty to
ourselves and our Posterity…” (Preamble). The Establishment Clause and the Free Exercise
Clause of the First Amendment to The United States Constitution preclude government from
making laws concerning “the establishment of religion” or from “prohibiting the free exercise
thereof”, separating the reach of political governance from the sphere of religion. Financial
sponsorship, primary effect (that an action be non discriminatory and neither promote nor inhibit
any religion), beneficiary, context, secular purpose and excessive entanglement are the critical
tests established by Supreme Court case law that must be satisfied to permit religion in any guise
to enter the public realm without being deemed a violation of the First Amendment’s
Establishment Clause and the Free Exercise Clause. In the case of the Ten Commandments or
any sacred text, the religious material must be deemed integral to a clear secular objective, and
incorporated in a manner that divorces the sacred from the overarching objective of the state.
Although the Ten Commandments are a religious text, they are frequently invoked in the secular
realm as moral guidelines. Ultimately it is incumbent upon the Supreme Court to determine how
best to disentangle church from state. In Bradfield v. Roberts, federal assistance to a Roman
Catholic operated hospital was deemed acceptable as the beneficiary was the hospital, a secular
entity, and not the Church. In Everson v. Board of Education, the Court permitted government
funding of student transportation to school, whether or not the schools were religious in nature,
because as Justice Black observed, it applied to “all its citizens without regard to their religious
belief”, and as such was seen as non discriminatory. In the landmark ruling Engel v. Vitale the
Court determined the voluntary recitation of a non denominational prayer in classrooms to be a
violation of the Establishment Clause, as it promoted a religious belief, a test revisited in
Edwards v. Aguillard which concluded that teaching creationism advanced a specific religion
and was therefore unconstitutional. In Abington Township v. Schempp concerning the recitation
of the Lord’s Prayer in class, the Court looked to three tests to determine constitutionality:
“secular legislative purpose”, “primary effect” (neither advancing nor inhibiting any religion)
1 Will Hallisey of Greenwich High School is the recipient of the Third Prize Award and context (Clark), while in County of Allegheny v. ACLU Justice Blackmun wrote for the
majority that it was determined the menorah was seen largely as a secular symbol of the “winter
season” within a larger grouping, rather than as a religious icon. The “Lemon Test” established
in Lemon v. Kurtzman added the third measure that there must not be “excessive entanglement”
of church and state. Stone v. Graham ruled the privately funded posting of the Ten
Commandments in every classroom in Kentucky lacked a clear secular purpose, violating the
Establishment Clause. More recently in Van Orden v. Perry (2005) the Court determined the
display of the Ten Commandments as part of a broader presentation met the tests of context, no
excessive entanglement and secular purpose, while in McCreary County v. ACLU of Kentucky
their display did not, as the Court ruled that unless the Ten Commandments are part of a secular
presentation they are considered to be a religious object.
Echoing Justice Douglas’ contention in Zorach v. Clauson that “we are a religious people”,
Justice Potter Stewart’s dissent in Engel v. Vitale noted that religious symbols and language
appear on currency, in the words of the Pledge of Allegiance and the National Anthem without
being considered to establish or promote a religion. For the Ten Commandments to be taught or
introduced in class the same must hold true. I struggle with sanctioning religious text in the
classroom because it seems unavoidable that the document’s religious nature will not color any
secular discussion in which it is referenced. Additionally, having religious text included in a
curriculum, even if only by reference, introduces the discomfiting situation of a secular authority
figure with a personal belief system discussing religion, which a child can easily misconstrue. I
think the introduction of sacred text in a school setting can be upsetting or discomfiting to those
of other faiths, and its primary identity as a religious document is inescapable. Freedom of
religious observance is recognized as an inalienable right and yet even in the Preamble the words
“Ordain” and “Blessing” cast the shadow of Douglas’ notion of Americans as a fundamentally
religious people across Jefferson’s vaunted wall. While the Ten Commandments and other
sacred texts may be taught in public schools, it is only within the carefully prescribed boundaries
of legal doctrine and adhering to the intent of the Founding Fathers, with the acknowledgement
that while individuals’ belief systems cannot be entirely absent from the institutions they create,
they must ultimately subjugate themselves to the Constitution’s determination that God and
Governance remain unlinked.
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