by Josh Blackman, Centennial Chair of Constitutional Law at the South Texas College of Law Houston • 3 minutes
The Religion Clauses of the First Amendment have very few words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But look hard, and you won’t find the words “separation of Church and State.”
This phrase appears nowhere in the Constitution. Instead, it came from a private letter President Thomas Jefferson wrote to a group of Baptists in Connecticut more than a decade after the Bill of Rights was adopted.
For the first 150 years of American history, there was no separation of Church and State under the Constitution. Several states had established churches, governments routinely funded religious causes, and schools began with prayer.
Yet in 1947, the Supreme Court abandoned that tradition. In Everson v. Board of Education (1947), the Supreme Court imposed the rule of “separation of Church and State” on the American people. By a 5-4 vote, the Justices narrowly allowed the State to fund school buses for religious schools. But all nine Justices agreed that religion in public schools was unconstitutional. Fifteen years later in Engel v. Vitale (1962), the Justices prohibited public schools from opening the day by reading a prayer.
These rulings ushered in six decades of rulings that pushed people of faith out of the public square. Perhaps the most egregious ruling came in Lemon v. Kurtzman (1971), which prohibited laws that had a religious purpose or effect, or even entangled Church and State.
In short order, the Supreme Court changed our constitutional culture. Teachers, parents, and students were trained to seek out and destroy any displays of faith in public schools. Yet none of these rulings were supported by the original meaning of the Constitution.
The people chose to provide funding for religious schools and to allow prayers in public schools. The Justices had no basis to disregard those longstanding practices.
Fortunately, in Kennedy v. Bremerton School District (2022), the Supreme Court took an important step to correct the course. In this landmark case brought by First Liberty Institute, the Supreme Court recognized that the dreaded Lemon test had been “abandoned.” The Constitution permitted a football coach to pray after a game, so long as students were not “coerced” to participate. But this ruling concerned a fairly unusual set of circumstances.
The next big challenge comes from my home state. Texas required public schools to display a copy of the Ten Commandments on the wall of every classroom. Teachers and students are not required to read the Ten Commandments or say anything about them. There is simply a piece of paper posted on the wall that most people will ignore.
Yet lower courts declared this posting to be an unconstitutional form of coercion. On appeal, the Fifth Circuit reversed. Judge Stuart Kyle Duncan’s opinion for the court explained that the Texas law is consistent with a longstanding tradition of teaching about religion and morality in public schools.
An appeal is expected over the summer to the U.S. Supreme Court. The Justices will be called on to extend the Kennedy test from the football field to the classroom. This decision will allow the Court to correct a 75-year-old mistake, and declare, once and for all, that the Constitution does not separate Church and State.
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Josh Blackman is a national thought leader on constitutional law and the United States Supreme Court. He also serves as a professor at the South Texas College of Law Houston. He holds the Centennial Chair of Constitutional Law.
