JURIST Senior Editor Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, discusses how Pennsylvania House Resolution 535 reveals an underlying tension between the Establishment Clause and free speech… (His opinions are not intended to represent those of JURIST)

On January 23, 2012, the Pennsylvania General Assembly unanimously passed House Resolution No. 535, declaring 2012 as the “Year of the Bible.” The resolution brings to light a conflict within the First Amendment, and specifically highlights the tension between the Establishment Clause and freedom of speech. To what degree can the government make statements about religion before crossing the threshold into an Establishment Clause violation?

In 2005, the Supreme Court addressed a similar question in Van Orden v. Perry. In Van Orden, a Texas resident opposed the display of a monument, which was inscribed with the Ten Commandments, on the grounds of the Texas Capitol. Writing for the majority, Justice Rehnquist identified two faces of the Establishment Clause: “One face looks toward the strong role played by religion and religious traditions throughout our Nation’s history … The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.” He concluded that the monument was “passive” and merely part of a series of monuments on the grounds, “representing the several strands in the State’s political and legal history.”

Rehnquist reflected that, “recognition of the role of God in our Nation’s heritage has also been reflected in [the Court’s] decisions,” pointing to a case permitting “a state legislature to open its daily sessions with a prayer by a chaplain paid by the State.” In direct contradiction to this point, the Supreme Court recently declined to rule on Joyner v. Forsyth County, a case in which the US Court of Appeals for the Fourth Circuit held that a county board of commissioners violated the Establishment Clause by beginning its meetings with a prayer. Whether this reflects a shift in the Court’s approach remains to be seen, but the contradiction highlights the inconsistency of holdings that have dealt with the question. For example, in 1992, the Court held in Lee v. Weisman that a prayer offered during a high school graduation ceremony violated the Establishment Clause, since no “school can persuade or compel a student to participate in a religious exercise.” The decision rested, at least partially, on the notion of “compelled attendance and participation,” but how this differs from a legislative setting is unclear. In short, “recognizing the role of God in our Nation’s heritage” without violation may be an uncertain road to navigate.

In Van Orden, the Court identified a number of monuments with religious motifs on federal sites. The Ten Commandments, in particular, are well represented in Washington DC, appearing no less than three times in the Supreme Court alone, plus they appear in the Thomas Jefferson Building, the National Archives and the Department of Justice, among other sites. If passive monuments with religious themes are acceptable, some may wonder how Glassroth v. Moore would have been decided had the case reached the Supreme Court. In Glassroth, Chief Justice Moore of the Alabama Supreme Court installed an enormous Ten Commandments monument in the courthouse. The Eleventh Circuit noted that, “he did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church.” Justice Moore was also known for posting the Ten Commandments in his courtroom, campaigning as the “Ten Commandments Judge” and encouraging prayer at jury organizing sessions. The judge was candid during the trial about his intentions with the monument, which might have ultimately “activated” an otherwise passive monument.

If intent is the test, short of the honesty of litigants, how will judges know whether a monument is designed to acknowledge the role of God in our nation’s heritage or whether it is a blatant promotion of a particular religion? How does a prayer prior to a legislative session not promote the religion of the particular individual leading the prayer? Additionally, allowing monuments that acknowledge God’s role in our nation’s heritage creates another issue in that it inherently favors Christianity. This in itself seems to raise a constitutional issue, but, aside from that, which versions of Christianity can be acknowledged in this way, all versions or only preferred “mainstream” sects?

These questions bring us back to Pennsylvania. The resolution begins with a statement recognizing the role of the Bible in making “a unique contribution in shaping the United States as a distinctive and blessed nation and people.” By Supreme Court standards, this statement should qualify as acknowledging the role of God in our nation’s heritage and is therefore not a First Amendment violation. Subsequent sections go a step further, constructing a paradigm in which Biblical teachings inspired concepts of civil government, claiming that, “the history of our country clearly illustrates the value of voluntarily applying the teachings of the scriptures in the lives of individuals, families and societies.” The resolution closes with an appeal to “our national need to study and apply the teachings of the Holy Scriptures,” and herein lies the tension.

Does the resolution—without the force of law—violate the establishment clause? Certainly, one religion is given status above other religions through a series of faulty historical statements. Even so, does freedom of speech extend to legislators who wish to make such declarations? The resolution can hardly be described as “passive;” it does not mandate any particular action, but it strongly advocates Bible study as a means to cure our national ills. In a state facing a significant budget crisis, is the implication that cuts to social services, transportation and education can be overcome by religious fidelity?

Religion plays an integral role in the lives of millions of Americans—including our elected officials—and recognition of that is not a bad thing. That being said, the US is home to millions of Muslims, Jews, Hindus, Buddhists, Christians and many others of varying religious worldviews, in addition to those with no religious worldview whatsoever. A resolution recognizing the role of the Bible in our national history may be appropriate, albeit unsettling. However, a resolution declaring the primacy of Christian scriptures not only violates the Constitution, it ignores the reality of the pluralistic nature of our country and the contributions of non-Christians throughout our history. Ironically, it also ignores the wishes of William Penn, who intended that this commonwealth serve as a safe haven from all religious oppression. Ultimately, the resolution’s fate may rest in the judiciary, where the First Amendment tensions must be sorted out.

Edward SanFilippo is the Head of JURIST’s professional commentary services. He graduated from the San Diego State University, where he earned degrees in religious studies and political science. His interests focus on issues of development, social change and social movements, the intersection between law and religion, human rights and the environment.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Edward SanFilippo, Pennsylvania Resolution Highlights First Amendment Tension, JURIST – Dateline, Feb. 21, 2012, http://jurist.org/dateline/2012/02/edward-sanfilippo-first-amendment.php.