Guest Post: Chapman on Indoctrinating Thy Neighbor

Assessing Nathan v. Alamo Heights Independent School District

[Editor’s note: This post is by Nathan Chapman, the A. Gus Cleveland Distinguished Professor of Law at the University of Georgia. He is the author, with Michael W. McConnell, of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023), cited four times by the court and twice by the dissent in Nathan v. Alamo Heights Independent School District.]

Sometimes a case is meta. The Fifth Circuit’s recent Ten Commandments case, Nathan v. Alamo Heights Independent School District, aptly captures how deep into the wilderness our religious liberty doctrine is—out of the unpredictability and incoherence of the three-part Lemon v. Kurtzman test and the one-size-fits-all stricture of Employment Division v. Smith, but not yet into the promised land of doctrinal clarity. Unfortunately, the Fifth Circuit chose a path that leads to religious conformity. This is especially ironic since one of the principal critiques of Lemon and Smith was that they stacked the deck against freedom of conscience and religious pluralism. Hopefully the Supreme Court will use the case as an opportunity to reaffirm the historical principle that the First Amendment forbids coerced instruction in piety.

In Nathan v. Alamo Heights Independent School District, the court upheld a Texas law that requires every public school classroom to display the Ten Commandments on a poster at least 16 x 20” in size. The parents challenging the law are from an array of religious traditions, many holding the Ten Commandments sacred but disagreeing about their religious meaning. They argued that the displays violate the Establishment and Free Exercise Clauses of the First Amendment. The doctrines for both clauses are in flux, but the strongest claims under either rely on the same feature of the Texas law: it coerces children into an instructional setting that includes the Ten Commandments alongside other instructional materials. The walls of school classrooms are festooned with “stuff we expect you to learn,” like the state capitals, the cursive alphabet, the periodic table, and, in Texas, the Ten Commandments.

The fact that there is no “generic” or religiously de minimis version of the Ten Commandments—unlike, say, “In God We Trust” on U.S. coins--compounds the problem. The first five commandments require honoring a particular God. The version adopted by Texas is the one most frequently acceptable to Protestants, for they have used its prohibition on graven images to denounce Catholic and Orthodox iconography and Marian devotion. Similarly, the presentation is shorn from the narrative context so vital to Jews. As a Protestant, it is precisely because I consider the Ten Commandments to be sacred that I would strongly object to my children being daily exposed to a version that does not fully identify the God to be worshipped, especially when it is entrusted to the instructional authority of a replacement-level third-grade teacher.

How did the Fifth Circuit lose the plot? The court said it was following the Supreme Court’s instruction to apply the “historical practices and understanding” of religious liberty, but its reasoning is inconsistent not only with that history but also with the Supreme Court’s most recent decisions on point. Rightly eschewing Lemon’s three-part test, the Court first considered whether the law is tantamount to a founding-era “hallmark” of a religious establishment. One such hallmark, the court acknowledges, was “legal compulsion to attend church or engage in a formal religious exercise.” Op. 22 (quotation marks omitted). There is no question that students are compelled to attend public school; that schools ordinarily put instructional materials on the wall of public school classrooms; that the Ten Commandments, without a contextual framework that effectively objectifies them, instructs people in a particular form of religious piety; that one of the chief activities in Founding-era churches (as now) was instruction in religious piety; that the Ten Commandments were frequently posted on the wall of Founding-era churches—for the purpose of pious instruction. It does not take a logical guru to conclude that the law enjoins compulsory instruction in religious piety akin to the compulsory church attendance and religious exercise plainly forbidden by the original understanding of the Establishment Clause.

There are perhaps two counter-arguments. The first is that the posters are not instructional. This is where the Fifth Circuit judges’ imagination failed them. If not instructional, what are they, exactly? The other is that compulsory instruction in religious piety was only one feature of compelled religious exercise at the founding. Does that mean that compulsory baptism—without more—would not violate the clause? Really?

But the Fifth Circuit needn’t have gone back to first principles for this insight. The Supreme Court’s non-Lemon precedent captures it well. As recently as Kennedy v. Bremerton School District, in which the Court (finally?) abandoned Lemon, it simultaneously cited cases holding that prayer that is attributable to a public school violates the Establishment Clause because it pressures students into conforming. Furthermore, Kennedy carefully avoided addressing the constitutionality of the prayers offered by the football coach before the school district had disavowed them, tacitly suggesting that some members of the majority, at least, were (rightly) worried about their coerciveness. In short, all of the Court’s prayer and bible reading-in-school cases are good law, and for good reason: they protect against the government’s use of force to impose religious conformity.

But unlike a prayer, one might say, the Ten Commandments are just a passive symbol, one that features in many government buildings, including the frieze of the U.S. Supreme Court. That isn’t quite right. The image on the walls of Texas schoolrooms is not a portrayal of two tablets held by a berobed, hirsute fellow dodging lightning bolts. It is just a list of ten rules, the first five of which are blatantly religious. It isn’t a symbol, it’s a text. This is the feature of the law the Fifth Circuit somehow overlooked: the rules on a wall of a public school classroom are no less the commands of the state than the words out of a teacher’s mouth. The Ten Commandments are commands to religious piety, delivered to an audience made captive by threat of punishment.

This makes it easy to understand why the law also violates the Free Exercise Clause. Just last year, the Supreme Court held in Mahmoud v. Taylor that a public school could not oblige students to hear a teacher read pro-LGBT books contrary to their parents’ religious beliefs. A burden on a parent’s right to control the religious education of children, the Court held, is always subject to strict scrutiny. It is difficult to see how the state’s posting of the Ten Commandments in every classroom would not burden an objecting parent’s religious exercise. Unlike Mahmoud, kids can’t opt out because the poster will follow them into every room in the school. Would the Fifth Circuit really conclude that the Free Exercise Clause forbids the readings in Mahmoud but would permit City of Austin to require all public school classrooms to display a 16 x 20” poster of a same-sex couple exchanging vows? Or a large poster declaring in simple, straightforward prose the wholesomeness of gender fluidity?

The Fifth Circuit faced a test of constitutional judgment. After decades of turmoil, religious liberty doctrine is starting to settle into steady grooves, but cases like Kennedy have left some questions unanswered. Lemon no longer supplies the answer, but that does not mean that all the cases that relied on or anticipated Lemon were wrongly decided. The Fifth Circuit was right to turn to history, but wrong to so badly misread what the Texas law is all about: religious conformity. The decision is a step in the opposite direction of the original understanding of equal religious liberty toward which the Supreme Court has, however fitfully and controversially, been headed for the past generation.