The Line in the Sand: Where Free Exercise and The Establishment Clause Collide

As I began my study of the interactions between the political and religious institutions in the United States, it quickly became apparent that the line between the two is less like a line and more like a grey battle zone where secularists and theists fight to shape each state according to their beliefs.  Years before and every year since the Constitution was drafted, American lawmakers have proposed and continue to propose legislation that favors the agendas of their constituents.  One of the biggest agendas (if not the biggest) continues to be the dominating religious views of each state.  The map below illustrates the distribution of each denomination across the country.


With so many competing and varying views, one would think that surely bills are constantly being proposed to bend to the wills of each congregation.  This assumption is correct.  We are only 2 months into 2014, but here is a list of bills by state that land in the grey battle zone previously mentioned:

Bills allowing religious displays on public property

Alabama: A constitutional amendment would allow the Ten Commandments to be displayed in government buildings, including public schools (HB 45/SB 64).

Georgia: Legislation calls for placing the Ten Commandments on Capitol grounds (HB 702).

Bills celebrating “America’s religious history”

Kansas: A bill would designate a “Celebrate Freedom Week” that critics say is a cover for Religious Right “Christian nation” views (HB 2280).

Virginia: This measure would al­low teachers to use “supplemental materials” that purport to support Ameri­ca’s heritage. Such efforts are usually covers for historically inaccurate “Chris­tian nation” propaganda (HB 197).

Bills promoting creationism in public schools and official school prayer

Oklahoma: Legislation would require science teachers to allow students to analyze and critique the “strengths and weaknesses” of certain “scientific theories.” This model legislation, pushed by creationist groups like the Discovery Institute, is a backdoor effort to undermine instruction about evolution in science classes (HB 1674).

Virginia: Legislation identical to the Oklahoma bill has been introduced (HB 207).

Pennsylvania: A state legislator has signaled his intention to introduce the same bill in Pennsylvania. The measure has not been formally introduced and doesn’t yet have a bill number.

South Carolina: Discussed above, a bill would allow for a moment of silent prayer in schools with teacher participation (HB 3526).

“Religious Viewpoint Anti-Discrimination” bills

Oklahoma: This legislation purports to protect public school students’ “religious liberty” rights but is really just a ruse to work mandated forms of prayer and worship into the schools. The Oklahoma measure (SB 1142), would state that schools may not “discriminate against students’ voluntary religious expression in the classroom, as student groups to form prayer groups or ‘See You At The Pole’ events; shall create limited public forums and neutral criteria for selecting religious commencement speakers who may express religious viewpoints.”

Similar legislation is pending in Michigan (HB 4986), New Hampshire (HB 1388/LSR 2343), North Carolina (SB 370) and Pennsylvania (HB 1427).

Vouchers and tuition tax credits

Kansas: This proposal would establish a system of tuition tax credits for students with disabilities. An identical measure passed House and Senate committees last year (SB 22).

South Carolina: Similar to the Kansas proposal, this bill would create tuition tax credits for students with disabilities. Gov. Nikki Haley attempted to add this plan to the state budget last year. It is expected to be pushed as separate legislation this year (SB 866).

Tennessee: A bill that would set up a voucher plan for students in public schools deemed “failing” in Memphis (HB 190) has been introduced.

New Jersey: Gov. Chris Christie is a relentless proponent of vouchers and tried to force a plan into the state budget last year. That attempt failed, and it is expected that Christie will push a voucher plan in the legislature this year.

Legislation designed to protect religious discrimination in university student groups

North Carolina: This measure would prohibit colleges and universities from denying funding to any student-run group based on the members’ religious views. Many colleges have policies that restrict funding only to groups that don’t discriminate and are open to all students. This measure is designed to override those policies and give special treatment to fundamentalist Christian clubs that refuse to admit gay members or members of other faiths.  (HB 735/SB 719).

South Carolina: Similar to the North Carolina measure, this bill (SB 472) would create a “Student Association Freedom of Religion Act” that would give preferential treatment to university student groups that discriminate on the basis of religion.

Sweeping “conscience” clauses

Tennessee: This measure would protect college students studying coun­seling or psychology or social work who refuse to work with gay clients – even though professional counseling standards almost always require that counselors must refrain from this type of discrimination (SB 514/HB 1185).

Michigan: SB 136, a bill that is broader than the Tennessee proposal, would allow health-care professionals to opt out of any service that they say violates their right of conscience.

Alabama: The bill would allow those working in the health-care field to opt out of any medical service related to abortion or contraceptive medical services (HB 31).

Utah: A constitutional amendment would allow religious organizations or associations or individuals connected with religious organizations from solemnizing marriages that violate their consciences. Critics note that this measure – HJR 1 – is unnecessary because the First Amendment to the U.S. Constitution already protects the right of religious organizations to determine their own criteria for marriage ceremonies.

Anti-Islam measures

Florida: Originally intended to ban Islamic law, this measure (SB 386) has been amended to state “foreign law,” which many critics say is code language for sharia. A similar bill nearly passed last year.

Missouri: Similar to the Florida bill, this measure bans the application of “foreign laws.” The measure cleared the legislature last year but was vetoed by Gov. Jay Nixon (SB 619).

Vermont: Bans the application of “foreign laws” in the state (SB 265).

Federal law nullification measures

Missouri: This constitutional amendment would state that Missouri has the power to nullify any federal law deemed to interfere with the state’s interest (including application of church-state separation). Such measures are considered blatantly unconstitutional (SJR 38).

Bills that would “restore” religious freedom

Maine: This bill would create a state “Religious Freedom Restoration Act” that opponents say would give religious groups and individuals the right to impose their faith and suppress the rights of others (LD 1428). Similar bills are pending in Ohio (HB 376) and Wisconsin (AJR 43/SJR 38).

List courtesy of Americans United

To follow the progress of each bill simply sign up for the AU newsletter by following the link:


Texas Candidates Call for Creationism


These men make up the 2014 GOP Texas lieutenant governor candidates: Land Commissioner Jerry Patterson, Sen. Dan Patrick, Agricultural Commissioner Todd Staples and Lt. Gov. David Dewhurst.  Tensions mount as the candidates campaign for the March 4, 2014 primary that will determine who goes on to face the Democratic nominee (Leticia Van de Putte).  They share a party, they share a love for red and blue ties, but most importantly, for the purposes of this assignment, they all agree that creationism should be taught in public schools.  In recent debates, all four candidates have made their stances very clear. They have each stated that the Supreme Court’s ruling to omit creationism from curriculum in public education is wrong and they all pledge to take action against the decision if elected.

What is Creationism?

Concise Encyclopedia says:

The belief that matter, the various forms of life, and the world were created by God out of nothing. Biblical creationists believe that the story told in Genesis of God’s six-day creation of the universe and all living things is literally correct. Scientific creationists believe that a creator made all that exists, though they may not hold that the Genesis story is a literal history of that creation. Creationism became the object of renewed interest among conservative religious groups following the wide dissemination of the theory of biological evolution, first systematically propounded by Charles Darwin in On the Origin of Species (1859). In the early 20th century some U.S. states banned the teaching of evolution, leading to the Scopes Trial. In the late 20th century many creationists advocated a view known as intelligent design, which was essentially a scientifically modern version of the argument from design for the existence of God as set forth in the late 18th century by the Anglican clergyman William Paley.

Edwards v. Aguillard, 482 US 578 (1987)

Over 60 years after the Scopes Trial, the US Supreme Court ruled that a Louisiana state law requiring that creation science or creationism be taught in public schools alongside evolution was unconstitutional because it sought to advance a particular religion. 

*When an issue of establishment comes into play in constitutional law, typically the Lemon Test (from Lemon v. Kurtzman) is applied by the Court:

  1. The government’s action must have a legitimate secular purpose;
  2. The government’s action must not have the primary effect of either advancing or inhibiting religion; and
  3. The government’s action must not result in an “excessive entanglement” of the government and religion.

Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, Docket no. 4cv2688

In 2005 the US District Court for the Middle District of Pennsylvania once again applied the Lemon Test to find that the teaching of intelligent design was a similar violation of constitutional law as had been previously stated in Edwards v. Aguillard.  The court found that neither intelligent design nor creationism met the standard qualifications for scientific theories.  

Despite making waves in Texas politics, creationism has resurfaced as an issue for parents and taxpayers that prefer a secularist education for their children following a article exposing the inclusion of the theory in publicly funded schools in Texas, Arkansas, and Indiana.  The author claims that $82.6 million dollars in federal funding is going to schools that teach creationism as a factually supported alternative to evolution:

Is another Supreme Court case pitting religious views against secular education on the horizon?