Bible Literacy Project News
Baylor Law Review
NOTE: The original article
compares two Bible curricula, what follows are those excerpts from the
article that evaluate
The Bible and Its Influence.
For this reason, long sections of text and footnotes from the original
are not included here.
Baylor Law Review
Winter 2007
59 Baylor L. Rev. 193
Notes and Comments
 *193 LOSING
MY RELIGION: THE CONTROVERSY OVER BIBLE CLASSES IN PUBLIC SCHOOLS
Amanda Colleen Brown [FNa1]
Copyright (c) 2007 Baylor Law Review; Amanda Colleen Brown
*194 I.
Introduction
Religion has always been a personal, yet divisive issue in this country.
[FN1] From our first days as a nation, Americans have struggled to find
a balance between expression and oppression. [FN2] In recent years, this
debate has taken place on a new battleground: public schools. A Gallup
poll conducted in May and June of 2004 revealed that only eight percent
of middle and high schools in the United States offer an elective class
on the Bible, and as a result, a vast majority of teenagers lack the
level of biblical knowledge considered by high school English teachers
to be necessary to a good education. [FN3] Teachers and university
professors are realizing how detrimental a lack of knowledge regarding
the Bible can be when it comes to understanding the themes found
throughout literature, art, and music. [FN4] For this reason, school
boards across the nation have begun implementing courses on the Bible.
[FN5] Though some rural districts have had such courses *195 for
years, the recent interest has spread to cities and surrounding areas
across all fifty states at a rapid rate. [FN6] Naturally, this has
sparked concern, and sometimes outrage, among the parents and citizens
of these areas regarding the constitutional repercussions of such a
venture. [FN7]
Given the delicate nature of this issue, it is easy to understand why
many schools put off implementing these courses. On the one hand, it is
important for students to be familiar with the Bible to understand the
cultural, literary, and artistic references they encounter in everyday
life. Americans have a culture imbued with religious iconography and
literary imagery. [FN8] Even ignoring, for a moment, the innumerable
works of literature and art that hinge upon Biblical references, our
language itself is saturated with such references. [FN9] If you have
ever called someone the “apple of your eye,” seen “the writing on the
wall,” called someone “the salt of the earth,” or complained that you
are not “your brother's keeper,” then you have used a phrase that has
its origin in the Bible. [FN10] Even the opening of the TV show
Desperate Housewives makes a reference to the story of Adam and Eve.
[FN11]
On
the other hand, public schools are publicly funded, government-mandated
institutions that students are required by law to attend. Public school
curriculums are carefully monitored and controlled, not only to protect
the students from forced indoctrination, but also to avoid any
perception of government endorsement of religion. Over the years,
numerous books, articles, and legal rulings have addressed the issue,
but the American public is still sharply divided and confused as to
which standard *196 to use.
II. Background
A. The
First Amendment
The First Amendment of the Constitution protects the basic freedoms of
the individual. [FN19] In crafting it, the Founding Fathers included two
religion clauses: the Establishment Clause and the Free Exercise Clause.
[FN20] These were both included in order to balance one another, since
the Founding Fathers recognized that one, without the other, would lead
to an extreme tyrannical environment for one group or another. Since the
two clauses are the first freedoms mentioned, this indicates that the
Founding Fathers held these to be two most fundamental freedoms. The
First Amendment reads, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof. .
..” [FN21] The Establishment clause was intended to restrict the
government's ability to mandate or endorse a particular religion, which
would interfere with each individual's choice of how or even whether to
worship. As Justice Black later wrote, “Its first and most immediate
purpose rested on the belief that a union of government and religion
tends to destroy government and to degrade religion.” [FN22]
Lest government leaders think that the Founding Fathers intended that no
one express their religious views, they added the Free Exercise clause,
which embraces one's ability to freely express his religious beliefs,
once chosen. In such a scheme, the “government is neutral, and, while
protecting all, it prefers none, and it disparages none.” [FN23] Every
American would, *198 therefore, be equal before the law,
regardless of their choice of faith, something almost unheard of in the
rest of the world when the Constitution was framed. These ideas were
later applied to the states through the 14th Amendment, as recognized in
Cantwell v. Connecticut [FN24] and Everson v. Board of Education. [FN25]
B.
Clarification by the Court: School District of Abington Township v.
Schempp
Constitutional standards regarding religion, particularly within the
context of the public school system, have always been a source of
confusion. Many people focus on the Establishment clause, prohibiting
state endorsement of religion, forgetting that the Free Exercise clause
was intended to balance it by not allowing the government to interfere
excessively with the right to express one's views on their faith. After
cases such as Everson v. Board of Education., [FN26] McCollum v. Board
of Education., [FN27] Zorach v. Clauson, [FN28] and Engel v. Vitale
[FN29] were handed down by the Court over the years, many educators and
school districts mistakenly believed that any mention of religion in the
school system was a constitutional violation, so they systematically
eliminated it from the schools. [FN30] Then, in 1963, the Court handed
down its decision in School District of Abington Township v. Schempp.
[FN31] The case involved two instances of state action requiring Bible
verses to be read at the beginning of each school day. [FN32] Although
the main body of the Court's decision held that mandatory Bible reading
in public schools violated the Establishment *199 Clause, a brief
statement near the end of the opinion by Justice Clark, as dicta,
revolutionized the view of religion in the public schools. [FN33] He
added, near the end of the opinion, that:
In addition, it might well be said that one's
education is not complete without a study of comparative religion or the
history of religion and its relationship to the advancement of
civilization. It certainly may be said that the Bible is worthy of study
for its literary and historic qualities. Nothing we have said here
indicates that such study of the Bible or of religion, when presented
objectively as part of a secular program of education, may not be
effected consistently with the First Amendment. [FN34]
C.
Response by Schools to the Court's Decision
Despite the clarity of the Court's opinion on the issue of secular Bible
education, some educators and administrators continue to be hesitant
regarding the actual implementation of such courses in their schools.
Since *200 about the mid-eighties, educators and civil
libertarians alike have called for action to “end the. . .curricular
silence on religion.” [FN39] Ignorance on this issue is so pervasive
that the First Amendment Center currently has eighteen publications that
are available for educators and the general public regarding this issue.
[FN40] Schools tend toward two extremes on religious issues: the “sacred
public school,” in which one religion, typically Christianity, is given
preferential treatment, or the “naked public school,” in which any and
all religion is excluded from discussions and activities at the school.
[FN41] Both of these models violate the First Amendment.
In
2000, the Department of Education clarified any dispute regarding what
Abington v. Schempp meant to the school systems by publishing and
distributing a set of guidelines for student religious expression in
public schools. [FN42] Under the heading “Teaching about Religion,” the
Department stated, “[p]ublic schools may not provide religious
instruction, but they may teach about religion, including the Bible or
other scripture,” leaving no doubt that classes teaching about the Bible
are constitutional. [FN43]
*204 III.
Tests Used by the Supreme Court to Determine First Amendment Violations
A. Lemon
v. Kurtzman
Over the years, the Court has established three primary tests for
determining whether there is a violation of the Establishment or Free
Exercise clauses of the Constitution. The first of these tests was
established in Lemon v. Kurtzman in 1971. [FN65] In that case, the issue
was whether state statutes granting aid to religiously affiliated
schools in the form of reimbursement for textbooks and teachers'
salaries violated the First Amendment. [FN66] In the absence of express
constitutional prohibitions regarding this issue, the Court chose to
identify “three main evils” that violate the Establishment clause:
“sponsorship, financial support, and active involvement of the sovereign
in religious activity.” [FN67] In holding the state statutes to be
unconstitutional, the Court clarified its ruling by creating a
three-part test by which to identify infringing acts or legislation.
[FN68] First, the statute or activity at issue “must have a secular
legislative purpose.” [FN69] Second, “its principal or primary effect
must be one that neither advances nor inhibits religion.” [FN70]
Finally, the statute or activity “must not foster ‘an excessive
government entanglement with religion.”’ [FN71] This test is the most
cited by courts in the United States even today. [FN72]
B.
Endorsement
The second test used by the Court is the endorsement test developed by
Justice O'Connor in her concurring opinion in Lynch v. Donnelly. [FN73]
In that case, the Court was asked to rule on the constitutionality of
the inclusion of a nativity scene, or crèche, as part of the city's
annual Christmas display. [FN74] *205 Justice O'Connor agreed
with the Court, holding that the practice was constitutional, but while
the majority focused on the Lemon v. Kurtzman factors, Justice O'Connor
focused on the question of whether the activity communicates a
government endorsement. [FN75] Her test states that the crucial inquiry
in any First Amendment religion case is whether the practice,
intentionally or unintentionally, has “the effect of communicating a
message of government endorsement or disapproval of religion.” [FN76]
She clarified, however, that the mere fact that a practice has the
effect of advancement of religion is immaterial, provided that there is
no relationship drawn to the government by the receiver of the message.
[FN77]
C.
Coercion
Finally, the Court has used the coercion test, which it first introduced
in Lee v. Weisman in 1992. [FN78] In Weisman, the Court was faced with
the question of whether a non-sectarian prayer, in this case by a rabbi,
can be included as part of a high school graduation ceremony. [FN79] The
Court held that the prayer was unconstitutional because it violated the
Establishment Clause by coercing students through peer pressure and the
appearance of government sponsorship to participate in, or at least give
the appearance of assent to, an overtly religious exercise. [FN80] The
school defended its choice by claiming that students were free to choose
not to attend, but the Court held that this “choice” did not excuse the
inducement or coercion present in the ceremony. [FN81] The test is based
on the idea that the Establishment Clause “guarantees, at a minimum,
that government may not coerce anyone to support or participate in
religion or its exercise.” [FN82] The Court in this case upheld Lemon,
but focused on the issue of governmental coercion, making it clear that
the coercion test is intended to be used in addition to the Lemon test,
rather than as a replacement. [FN83] Under this test, coercion by the
*206 government is “not necessary to prove an Establishment Clause
violation, [but] it is sufficient.” [FN84]
The Court limited its holding to governmental coercion focused towards
elementary through high school students, because “there are heightened
concerns with protecting freedom of conscience from subtle coercive
pressure in elementary and secondary public schools” and these exercises
“carry a particular risk of indirect coercion,” in particular social or
peer pressure. [FN85] This concern, the Court added, while not limited
to public schools, is “most pronounced there.” [FN86
V. Bible Literacy Project
… One
alternative is the curriculum released on September 22, 2005 by the
Bible Literacy Project. [FN199]
A. What
is the Bible Literacy Project?
The Bible Literacy Project (BLP) is a “non-partisan, non-profit
organization dedicated to research and public education on the academic
study of the Bible in public and private schools.” [FN200] In 1999, the
BLP co-authored The Bible and Public Schools: A First Amendment Guide,
which was designed to educate schools regarding how to teach about the
Bible in a constitutionally sound way and was endorsed by twenty-one
national groups across the political spectrum. [FN201] In 2005, the BLP
released a curriculum designed to provide basic Bible literacy to
students, which the group felt was not being provided in most public
schools, despite being a “deeply important part of a good education.”
[FN202] As of October 2006, this curriculum has been implemented in
twenty-nine states, as well as in Canada and Taiwan. [FN203] The BLP's
curriculum, The Bible and Its Influence, has a number of academic
advantages over the NCBCPS's, but its value to public schools must be
weighed by the three tests provided by the Supreme Court.
*225 B. Lemon v. Kurtzman
1.
Does the Curriculum Have a Secular Purpose?
Under Lemon v. Kurtzman, the first prong is whether the curriculum has a
secular purpose. [FN204] The curriculum development for The Bible and
Its Influence was a long, complicated process. The BLP first created
an outline of the content to be covered, then hired the content
contributors to write the actual text. [FN205] This draft was reviewed
by lawyers who are especially knowledgeable on First Amendment issues as
well as by forty other reviewers, who include college professors of
English, Comparative Literature, History, Theology, and Law, as well as
high school teachers, church leaders, and authors. [FN206] The reviewers
who were chosen for their biblical knowledge represent a wide range of
faiths including Roman Catholic, various Protestant denominations,
Jewish, and even Unitarian. [FN207] However, as mentioned above, a large
number of these reviewers were chosen strictly for their academic
perspective. [FN208] Following these reviews, Cullen Schippe, the
general editor, incorporated the reviewers' feedback into the text.
[FN209] This process clearly indicates the intent to develop a
curriculum that is not only academically accurate, but also
constitutionally compliant, which would satisfy a secular purpose.
In
addition to incorporating the viewpoints of a diverse group of educators
and experts in developing this curriculum, the BLP has indicated its
intent to develop a constitutional curriculum in other ways. As
mentioned earlier, the BLP, together with the First Amendment Center,
published The Bible and Public Schools: A First Amendment Guide, which
was a consensus on how to teach the Bible in a way that conforms to
constitutional principles. [FN210] The Bible and Its Influence
was specifically developed to fulfill the standards set forth in that
publication. [FN211] In *226 addition, to ensure teacher
compliance with these standards, the BLP requires teachers to take an
online training course through Concordia University on how to teach the
Bible as literature in public schools. [FN212] All of these additional
efforts indicate a strong intent to comply with the Constitution.
…Its authorship is not a mystery. Not only are the editors listed, but
the names of the content contributors, the textbook reviewers and
consultants, as well as those of the BLP's Board of Directors and Board
of Advisors are all available inside the cover of the text. [FN213] The
four content contributors have diverse backgrounds, in regard to both
their faith, as well as their literary experience. Although one critic
has opined that “[n]one of the actual authors . . . appears to be a
biblical scholar by profession,” the content contributors, if not
clearly evident from their work on this text, each have backgrounds that
have prepared them well for this task. [FN214] Marc Stern is a lawyer
who serves as general counsel for the American Jewish Congress and is
considered “one of the country's foremost experts on the law of church
and state.” [FN215] He has written a number of articles on issues
relating to that topic. [FN216] Joanne McPortland is a Catholic writer,
who authored The Roots of the Mass, a history of the Catholic
mass. [FN217] Marjorie Haney Schafer, Ph.D., has experience teaching
English and Religious Studies at the college level and currently works
as a freelance writer. [FN218] Finally, Eve Tushnet is a freelance
writer who has *227 several regular columns and has written
articles for the New York Post, the National Catholic Register,
and the Washington City Paper. [FN219] In addition to the four
content contributors, there are two editors of the curriculum, Cullen
Schippe and Chuck Stetson. [FN220] Chuck Stetson is the founder of the
Bible Literacy Project and serves as Chairman of the Board of Directors
for the BLP, while Cullen Schippe is a former Vice-President and
publisher for Music, Religion, and Social Studies at
Macmillan/McGraw-Hill. [FN221]
The diversity of the BLP's Board of Directors and Board of Advisors
lends further support to the proposition that the curriculum's purpose
is purely academic in nature. The Board of Advisors includes: the
Secretary of the Colorado Board of Education; an assistant principal; a
Professor of Religious Ethics and the Social Sciences; an editor of the
Jewish Publication Society; a Professor of Social and Political Ethics;
a rabbi; the founder of a faith-based humanitarian organization; the
founding chairman of a public charity whose purpose is to discover, test
and encourage the application of new approaches to social problems; and
a Harvard Law Professor. [FN222]
The Board of Directors is equally diverse. It includes a senior VP of
finance and administration of a corporation, the CEO of a children's
furniture and clothing store, and the managing director of an investment
firm. [FN223] One critic has stated that the Advisory Board has a
“distinctly rightward tilt” because of the affiliations of two of its
members: David Blankenhorn and Kevin Seamus Hasson. [FN224] However,
upon closer *228 inspection of their respective organizations,
there does not appear to be any particular agenda that would influence
their roles with the BLP. Kevin Seamus Hasson is the founder and
president of the Becket Fund for Religious Liberty, which describes
itself as a “bipartisan, interfaith public-interest law firm that
protects the free expressions of all religious traditions.” [FN225] He
has represented nearly every faith, including Muslims, Jews, Christians,
Buddhists, Sikhs, Hindus, Native Americans, Unitarians, and
Zoroastrians. [FN226] It is true that his firm works to protect the
religious freedoms of all religions, which perhaps could be viewed by
some as a right-wing agenda, but this firm appears to do so within the
constraints of the Constitution. [FN227] Thus, it would seem that, if
the goal of the BLP is to honor both the Establishment clause and the
Free Exercise clause, as it should, his experience as a lawyer in these
areas would be invaluable to the organization. David Blankenhorn is the
President of the Institute for American Values, which is a “private,
nonprofit, nonpartisan organization that contributes intellectually to
strengthening families and civil society in the U.S. and the world.”
[FN228] Perhaps the critic views this organization as right-wing because
of its interest in families and marriage, but surely these are not
strictly conservative interests. Looking at the organization's studies,
it appears that the organization is predominantly focused on sociology
and psychology. [FN229] There are no overtly religious themes in these
studies, which include the effects of divorce on children and families,
issues relating to the challenges of parenting, feelings of lack of
connectedness by *229 individuals in society, immaturity in
children, and the legal and social implications of new reproductive
technology. [FN230] Nothing in either of these organizations suggests a
dangerous bias that might implicate a non-secular purpose for the
development of this curriculum.
Clearly, the BLP has made a considerable effort to ensure compliance of
its curriculum with constitutional standards. Based on its authorship of
the constitutional guide for public schools, it is clearly aware of the
applicable standards. All of the authors of the curriculum and related
individuals from the BLP come from diverse backgrounds of faith and
experience and, if that were not enough, the curriculum underwent a
review process incorporating changes and suggestions from forty relevant
Bible scholars, academics, and lawyers. [FN231] The fact that the BLP
went to such great lengths to help ensure this curriculum would not
violate the First Amendment and would be academically sound indicates
that their purpose was to create a text that would be an effective tool
for education, not indoctrination. Therefore, the curriculum has a
secular purpose and satisfies the first prong of the Lemon test.
2.
Will the Curriculum Have the Primary Effect of Advancing or Inhibiting
Religion?
The second prong of the Lemon test requires that the “principal or
primary effect must be one that neither advances nor inhibits religion.”
[FN232] From a reading of the full text, it is patently obvious that the
focus of the BLP's curriculum is on educating students so that they can
better understand the biblical themes encountered in art, literature,
and music, not on indoctrinating them to become new believers in the
Christian or Jewish faith. [FN233] ….The Bible and Its Influence
has 373 pages full of printed text that offer information on each book
of the Old and New Testaments, including the Apocrypha. [FN234] … The
pages of the BLP curriculum are littered with prints of artwork showing
the interpretations of biblical themes by artists from cultures spanning
the globe. [FN236] It also includes illustrations from famous novels
that incorporate biblical themes or allusions, pictures of modern day
Middle Eastern cities mentioned in the Bible, as well as historically
significant images of people and places, such Dr. Martin Luther King,
Abraham Lincoln, and the Civil Rights Memorial in Alabama. [FN237]
The text is supplemented not only by pictures, but with short segments
contained in boxes that provide additional information about the
particular book being discussed. [FN238] One section, “The Bible in
Literature” offers either information about the literary structure of
the book being studied or provides excerpts of famous authors' works
that include biblical themes, such as A Tale of Two Cities, Moby Dick,
Hamlet, and perhaps somewhat lesser known works, such as the poetry of
Countee Cullen or Elizabeth Barrett Browning. [FN239] The “Cultural
Connections” sections provide information on the impact of the Bible on
individuals, social movements, architecture, and even music and movies.
[FN240] There are also marginal inserts titled “Everyday Language,”
which provide definitions of words from each book of the Bible that are
in common usage. [FN241] These inserts explain both the literary and
colloquial meanings of each word. [FN242] The curriculum also includes
sections entitled “Historical Connections” or “The Bible in History,”
which provide additional historical context or background for each unit
of study, such as information on the history of Roman slavery or on the
Great Schism of 1054. [FN243] In addition, at the end of each of the
fourteen units, there is a Unit Feature that offers more extensive
*231 information on the topic covered. [FN244] These features mainly
consist of more in-depth explanations of literary themes or specific
texts that include biblical allusions. [FN245] Unit Features include,
for example, Dante's Purgatorio, Milton and the Bible, and the Bible and
Shakespeare. [FN246] Some of the Unit Features focus on the lives of
important authors or figures in history, such as Saint Augustine, Eli
Wiesel, and Cesar Chavez. [FN247] All of these inserts are in addition
to the vast amount of literary information provided in the main body of
the text.
Throughout the 373 pages of text, the curriculum includes forty-four
inserts on “The Bible in Literature,” thirty-five on “Cultural
Connections,” thirty-three on “Everyday Language,” six historical
inserts, fourteen Unit Features, and ten additional inserts that relate
to one or more of these topics. [FN248] Thus, on every page, there is a
separate discussion of the Bible that relates to its academic, rather
than spiritual worth.
In
addition to the curriculum's focus on the Bible's literary and cultural
significance, the approach of the text is important as well. The BLP's
curriculum … never attempts to treat the Bible as historical truth. In
fact, in its introduction to the New Testament, the curriculum devotes
several paragraphs to clarifying this issue. [FN249] It explains that
the gospels “describe the life and teaching of Jesus as seen through the
eyes of faith--as the life and teachings had come to be understood in
the community,” and that, as such, “[t]he gospels are not histories.”
[FN250] It further states that “[f]or Christians, each of the gospels. .
. provide a faith-filled look at Jesus and the salvation and the kingdom
he taught about. You are not picking up a newspaper account, an
eyewitness report, or even a memoir.” [FN251] In addition to
explanations like this, the text frequently reminds the reader that the
curriculum is not opining on the truth of the biblical text through
statements, such as “[a]ccording to the text,” “according to the
Jewish/Christian tradition,” or “the account says.” [FN252] *232
Students are also frequently reminded of the literary nature of this
study through the explanations in each chapter of the literary devices
used by the book's authors and discussions of the authors' uses of
various forms and genres, as well as by specific examples contained in
the text itself of literature and poetry that incorporate ideas from the
book of the Bible being discussed. [FN253]
Another strength of the curriculum is that it does not appear to favor
any one religion or denomination in its treatment of the text, which is
probably a reflection of its authors' diverse faiths. … The BLP
curriculum uses three different translations when quoting the Bible: The
King James Version; the New Revised Standard Version; and the Jewish
Bible, the Tanakh, for all the Hebrew portions. In addition, where
scholars differ on issues, such as dates, authorship, or interpretation,
the text gives equal treatment to each interpretation. [FN255] … The
authors of The Bible and Its Influence also make a point of
distinguishing how Jews and Christians differ in their use and
interpretation of particular biblical stories, verses, or books. [FN257]
In
addition to the particular academic aspects of this curriculum, the very
fact that the program uses a textbook in addition to the Bible helps
protect against the use of these elective classes to advance or inhibit
religion. …The Bible and Its Influence is intended to be used by
the students in addition to reading assignments from the Bible. [FN258]
With the textbook as a *233 guide, it is less likely that a
teacher will inadvertently, or even intentionally, lead the class into
discussions that violate the Constitution. This danger is further
reduced by the fact that, as mentioned above, the BLP provides teacher
training on how to properly conduct a Bible as literature class. [FN259]
All of the information provided in the text by the authors highlighting
important art and literature, as well as the way the information is
presented makes it clear that this is not a religious study of the
Bible, but rather an academic one. This curriculum manages not only to
educate on the Bible without promoting the beliefs contained within, but
is also respectful of those who do base their faith in these religious
texts. While it is impossible to predict the future, the likelihood that
this curriculum would have the primary effect of advancing or inhibiting
religion seems a near impossibility. It is this Author's opinion that
the primary effect of this curriculum will be to expose students to
literature, art, and music they are not familiar with and expand their
understanding of those with which they are familiar.
3.
Does the Curriculum Foster an Excessive Government Entanglement with
Religion?
Finally, under the third prong of the Lemon test, the curriculum “must
not foster ‘an excessive government entanglement with religion.”’
[FN260] …The BLP curriculum does not make any overt attempts to connect
the Bible or Christianity with the United States. The pages of the text
are not covered with national symbols like the flag or the Declaration
of Independence. [FN262] On the contrary, the cover has three works of
art depicting biblical scenes by artists from China, Russia, and North
America. [FN263] The pages separating each unit are fittingly decorated
with images of columns and arches of varying colors, rather than with
soldiers or flags. [FN264] ... When discussing the Bible's influence on
art, music, and literature, the BLP's curriculum offers examples from
around the world, both current and historical. It has pictures of
paintings and sculptures from Asia, Europe, and Africa, in addition to
art from the Americas. [FN265] The curriculum discusses the music of
famous composers such as Verdi, Bach, Beethoven, Menotti, Tavener, and
even Andrew Lloyd Webber, in addition to Busta Rhymes and Rage Against
the Machine. [FN266] When it comes to literature, authors from all
nations are discussed, including Milton, Bonhoeffer, Keats, Hemingway,
C.S. Lewis, Shusaku Endo, and Harriet Beecher Stowe. [FN267] It is hard
to imagine how the curriculum could be construed as fostering any kind
of relationship between religion and the government. The focus of the
text is clearly academic and the scope is far too broad to draw such a
narrow conclusion.
In
addition, such a construction of the text would be completely misguided
given that The Bible and Its Influence only mentions the
government four times in the entire 373-page text. [FN268] The first
instance occurs in the Introductory Unit under the heading The Bible in
American Life. It states:
From the very beginning, the Bible has been part of
the fabric of the United States. Biblical thought can be found in the
writings and speeches of the leaders and heroes who formed the Republic
and guided its development. It is used in public debate and political
campaigning even today. It is important to note, however, that the Bible
was not the only or principal source for the aspirations of the
Founders. Thomas Jefferson, James Madison, and others found inspiration
in the philosophies of the day, such as the Enlightenment. They
acknowledged God as the Creator, but they often looked to writers like
John Locke and David Hume to form their beliefs in “unalienable rights”
and other principles of democracy. [FN269] *235 Then, as an
example, it quotes George Washington's first inaugural address in which
he gives homage to “that Almighty Being,” “the Great Author of every
public and private good” amid his hopes for the nation. [FN270]
The
second example is on the very next page, under a heading entitled Bible
Literacy and Citizenship. [FN271] Half a page is devoted to examples of
biblical references used by Abraham Lincoln in his speeches, such as his
“House Divided Speech,” which was based on a phrase from Luke 11:17,
“Every kingdom divided against itself becomes a desert, and house falls
on house.” [FN272] All of the examples given are actual references in
his speeches to biblical verses or ideas. ... One short paragraph after
this section further clarifies the purpose behind these examples by
explaining that “[l]ittle of America's historic public speeches or its
great reform movements or the pilgrim wanderings that led to America's
founding is completely intelligible without at least a working knowledge
of the Bible.” [FN274]
Neither one of these references appears to foster an excessive
government entanglement with religion. First of all, when viewed in
context, these references do nothing more than make a case for academic
study of the Bible, because they demonstrate that biblical references
are widespread and, without understanding their background, one cannot
fully appreciate the meaning being conveyed. Second, it would be a
complete fabrication to pretend that the Bible was not among the
writings that influenced the Founding Fathers. The mere mentioning of
that fact is not unconstitutional, particularly in view of the fact that
the curriculum gives fair weight to its influence by clarifying that it
was not the only influence on government leaders at the time.
Furthermore, these two examples amount to less than two pages out of 373
total devoted to the study of the Bible. Since these references, when
viewed in context, are not making overly broad claims about the Bible's
influence and amount to such a small amount of the text, it cannot be
said that these references foster an excessive government entanglement
with religion.
*236 The third reference is in one of the “Cultural Connections”
boxes. [FN275] It is titled American History and is a tenuous reference
at best. [FN276] It explains how the Pilgrims were familiar with the
idea of a covenant because of their faith. [FN277] “The language of
covenant is an integral part of American legal and governmental
tradition, partly because English Pilgrims and Puritans identified
themselves with Abraham, who was called to set out on a long journey
searching for a land of promise.” [FN278] The text goes on to quote the
Mayflower Compact where it states, “[w]e whose names are underwritten. .
.[h]aving undertaken a voyage to plant the first colony. . .do by these
presents solemnly and mutually in the presence of God, and of one
another, Covenant and Combine our selves [sic] together into a civil
body politic.” [FN279] Once again, there is no way this could be
construed as fostering an excessive entanglement with religion. This
insert merely explains that one of the various influences that led the
Pilgrims to covenant was their familiarity with Abraham. Given that they
were Puritans, this seems highly likely and nothing in the text promotes
Christianity or any other religion, so there is no chance of a
government entanglement with religion.
The final reference is the last Unit Feature of the book, entitled
“Freedom and Faith in America.” [FN280] Most of this section discusses
how America is a pluralistic society and freedom of religion has been
important to Americans since the earliest settlers, eventually leading
to the creation of the First Amendment. [FN281] While most of the quotes
included in this section are just general positive statements about
religious freedom, a few are questionable. [FN282] One quote is from the
Northwest Ordinance, which was enacted by Congress in 1787. [FN283] It
states, “[r]eligion, morality, and knowledge, being necessary to good
government and the happiness of mankind, schools, and the means of
education shall forever be encouraged.” [FN284] A few paragraphs later,
there is a quote from Alexis de *237 Tocqueville, in which he
remarks on the role of religion in America. [FN285] Two of the
paragraphs in the quote are from his book, Democracy in America,
and are merely commentary on the fact that religion plays a role in
American society. [FN286] The last paragraph, however, goes a step
farther. The author of this article was unable to find the last
paragraph from the quote within the text of Democracy in America,
to which it is attributed. This paragraph is frequently attributed to de
Tocqueville, so the mistake is not surprising. The quote essentially
attributes America's “genius and power” to “the churches of America.”
[FN287] Although it would be a very weak basis, some might construe
these quotes as an attempt to implicate government support of religion,
or more likely, as the promotion of religion in general.
Finally, the last quote in this section is from a book by David Aikman,
in which he quotes a professor from China commenting on America. [FN288]
He states:
One of the things we were asked to look into was what
accounted for the. . . pre-eminence of the West over all the world. .
.we have realized that the heart of your culture is your religion:
Christianity. The moral foundation of social and cultural life was what
made possible the emergence of capitalism and then the successful
transition to democratic politics. [FN289] This quote clearly promotes
the idea that Christianity is the foundation of our country. While it
does not directly implicate the idea of government sponsorship of
religion, it implies that democracy is related to religion. Furthermore,
its attribution of America's success to Christianity is an impermissible
promotion of religion. In context, these quotes appear to be
included only to show that religion has played a role in American
history and continues to be a large part of our pluralistic society.
However, some of these quotes could be construed as promoting religion.
It is true that, with the exception of the last one, they do not promote
any particular religion; at best they appear to promote *238
religion in general, but in this area, that can be sufficient.
Many of the quotes within this section are not objectionable. In fact,
the majority of the two-page Unit Feature is not even questionable; only
the three quotes mentioned. For that reason, this should not be
construed as an argument that this curriculum fosters an excessive
entanglement with religion. These three quotes comprise less than one
page out of a 373-page curriculum that is otherwise above reproach. When
read in context, only the last quote seems particularly troublesome and
when read with regard to the entirety of the curriculum, none of these
quotes should lead students to the impression that this text is
promoting religion or implying a connection between religion and the
government.
Overall, The Bible and Its Influence does not foster an excessive
government entanglement with religion. It is apparent from each page of
the curriculum that the focus is on the academic study of the Bible and
the biblical themes present in art, literature, and music from around
the world. There were three quotes at the very end of the book that
might be considered objectionable, but even if found to be promoting the
idea of a connection between the government and religion, three quotes
in such a vast curriculum, which otherwise is completely compliant with
constitutional standards, does not constitute an excessive entanglement.
The fact that the curriculum only mentions the government four times in
almost 400 pages makes it clear that it was not the focus or intent of
the Bible Literacy Project to imply a connection between the government
and religion, and anyone reading this curriculum could not come away
with that impression. Since the focus of this curriculum is clearly
academic, it does not foster an excessive government entanglement with
religion and, thus, the curriculum passes the third and final prong of
the Lemon test.
B.
Endorsement
The endorsement test concerns whether the activity, intentionally or
unintentionally, has “the effect of communicating a message of
government endorsement or disapproval of religion.” [FN290] This
curriculum is clearly focused on the academic study of the Bible. Every
page of the text is filled with descriptions of literary forms and
devices used, prints of paintings or pictures of sculptures that relate
to the subject matter being covered, and *239 supplemental
information on history, music, or specific works of literature that are
relevant. [FN291] The writers continually remind the reader that the
opinions reflected in each book of the Bible are those of the biblical
author, not those of the curriculum writers. [FN292] Also, using several
different translations of the biblical text and explaining differing
viewpoints and interpretations makes it clear that no one religion or
viewpoint is being favored. No one religion is being favored, and
religion in general is not being favored, because of the clearly
academic focus of this curriculum. The fact that the Bible itself is not
the textbook also helps alleviate any perception of government
endorsement of religion. Finally, to further dispel any possibility of
endorsement of religion by the teachers on behalf of the State, the
teachers must take courses on how to teach the Bible neutrally and they
have the textbook to guide their discussions and lessons. [FN293]
Therefore, since the curriculum does not endorse or disapprove of
religion, and precautions have been taken with regard to the teaching of
this material, adoption of this curriculum could not possibly be
considered an endorsement or disapproval of religion attributable to the
government.
C.
Coercion
The Supreme Court created the coercion test in Lee v. Weisman, in which
it stated that schools cannot compel student participation in religious
exercises, either directly or through indirect persuasion. [FN294] The
Bible Literacy Project's curriculum poses no such threat of coercion,
because the curriculum has been carefully crafted to be strictly an
academic exercise. This curriculum is intended to be an elective course,
so each student would be there voluntarily. Additionally, because the
curriculum promotes Bible literacy for literary and artistic purposes
and not religion, there is no danger of a coercive effect. Coercion only
becomes a danger when students would feel compelled to assent to views
they do not agree with or face ostracism. [FN295] This curriculum does
not express agreement or disagreement with the biblical text being
studied, thus neither Christians nor non-Christians would face pressure
to assent to contrary viewpoints, so there is *240 no danger of
coercion.
VI. Conclusion
The Supreme Court has made it clear, and the Author of this Comment
agrees, that Bible classes are not only constitutional, but should be
encouraged as part of a broad-based secular education. Nothing in this
Comment should be construed to indicate otherwise. … This Author would
encourage school districts to explore … the Bible Literacy Project's
curriculum, The Bible and Its Influence, which clearly conforms
to constitutional standards, keeping in mind that, while instruction in
the Bible is important, the purpose of these courses is to educate, not
indoctrinate. Our Founding Fathers had good reason to abhor the
entanglement of government with religion. …
[FNa1].
Amanda Colleen Brown, J.D., Baylor Law School, February 2007; B.A.,
magna cum laude, German and History, Texas A&M University, 2002.
Following graduation, the author will pursue an L.L.M. in International
Law overseas.
[FN1].
See Robert T. Handy, The American Tradition of Religious Freedom: An
Historical Analysis, 13 Emory L.J., 247-66 & n.2, reprinted in
Charles C. Haynes, Religious Freedom in America 11-32 (1986).
[FN2].
For further discussion of this issue throughout the history of our
nation, see id.
[FN3].
Marie Wachlin, Bible Literacy Project, Bible Literacy Report: What Do
American Teens Need To Know and What Do They Know? 6 (2005),
available at http://bibleliteracy.org/Secure/Documents/BibleLiteracyReport2005.pdf.
[FN4].
Id. at 5-7.
[FN5].
See Sarah Childress, See You in Bible Class, Newsweek, May 1,
2006, at 39, available at 2006 WLNR 6943155.
[FN6].
See National Council on Bible Curriculum in Public Schools Where it is
Implemented, http://www.bibleinschools.net/sdm.asp?pg=implemented (last
visited Jan. 21, 2007) [hereinafter Where it is Implemented].
[FN7].
See, e.g., Ralph Blumenthal & Barbra Novavitch, Bible Course Becomes a
Test for Public Schools in Texas, N.Y. Times, Aug. 1, 2005,
available at http://www.nytimes.com/2005/08/01education/01bible.html? ei=5088&en=889c612a8072328a&ex=1280548800&partner=rssnyt&emc=rss
(last visited Jan. 3, 2007) (“When the school board in Odessa
[Texas]...voted unanimously... to add an elective Bible study
course...some parents dropped to their knees in prayerful thanks...while
others assailed it as an effort to instill religious training in the
public schools.”).
[FN8].
Wachlin, supra note 3, at 9-10.
[FN9].
See id. at 20.
[FN10].
See Deuteronomy 32:10; Daniel 5:5; Matthew 5:13; Genesis 4:9.
[FN11].
Wikipedia, Desperate Housewives, http:// en.wikipedia.org/wiki/Desperate_Housewives
(as of Jan. 3, 2007, 16:00 GMT).
[FN19].
See U.S. Const. amend. I.
[FN20].
Id.
[FN21].
Id.
[FN22].
Engel v. Vitale, 370 U.S. 421, 431 (1962).
[FN23].
Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 215 (1963)
(quoting Minor v. Bd. of Educ. (Super. Ct. of Cincinnati (Ohio) 1870)
(unpublished) (Taft, J., dissenting), published in The Bible in the
Common Schools (Robert Clarke & Co. 1870)); see also Schempp, 370
U.S. at 214-15 & n.7. Taft's dissent prevailed on appeal in Board. of
Education v. Minor, 23 Ohio St. 211, 253 (1872).
[FN24].
310 U.S. 296, 303 (1940).
[FN25].
330 U.S. 1, 13-15 (1947).
[FN26].
See generally 330 U.S. 1 (1947)
[FN27].
See generally 333 U.S. 203 (1948)
[FN28].
See generally 343 U.S. 306 (1952)
[FN29].
See generally 370 U.S. 421 (1962)
[FN30].
See David L. Hudson Jr., Teachers' Religious Liberties, available at
http://www.firstamendmentcenter.org/rel_liberty/publicschools/topic.aspx?
topic=teachers_liberties (last visited Jan. 30, 2007) (pointing out that
even today school districts limit teachers' religious expression in
order to avoid violating the establishment clause)
[FN31].
See generally 374 U.S. 203 (1963)
[FN32].
Id. at 205
[FN33].
Id. at 225
[FN34].
Id. (emphasis added)
[FN38].
The First Amendment Center, Bible in School, http://
www.firstamendmentcenter.org/rel_liberty/publicschools/topic_faqs.aspx?
topic=bible_in_school (last visited Jan. 3, 2007). The First Amendment
Center is a program of the Freedom Forum and is affiliated with
Vanderbilt University and the Vanderbilt Institute for Public Policy
Studies. About the First Amendment Center, supra note 37
[FN39].
Association for Supervision and Curriculum Development, Religion in
the Curriculum: A Report from the ASCD Panel on Religion in the
Curriculum (1987), reprinted in Charles C. Haynes, Religion in
American History: What to Teach and How 172 (1990)
[FN40].
The First Amendment Center Publications, Bible in School, http://
www.firstamendmentcenter.org/about.aspx?item=FAC_publications (last
visited Jan. 21, 2007).
[FN41].
Charles C. Hayne, Religious Liberty in Public Schools, available at
http://www.firstamendmentcenter.org/rel_liberty/publicschools/overview.aspx
(last visited Jan. 21, 2007).
[FN42].
See generally Charles C. Haynes & Oliver Thomas, Finding Common
Ground: A Guide to Religious Liberty in Public Schools 125 (2001),
available at http://www.firstamendmentcenter.org/pdf/FCGcomplete.pdf.
[FN43].
Id. at 128.
[FN65].
403 U.S. 602, 612-13 (1971)
[FN66].
Id. at 606-07.
[FN67].
Id. at 612 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970)).
[FN68].
Id. at 612-13.
[FN69].
Id. at 612.
[FN70].
Id.
[FN71].
Id. at 613 (citing Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
[FN72].
See generally McCreary County v. ACLU of Ky., 545 U.S. 844 (2005).
[FN73].
465 U.S. 668, 689 (1984) (O'Connor, J., concurring).
[FN74].
Id. at 670-71 (majority opinion).
[FN75].
Id. at 687-94 (O'Connor, J., concurring).
[FN76].
Id. at 692.
[FN77].
Id. at 691-92.
[FN78].
505 U.S. 577, 587 (1992).
[FN79].
Id. at 580-81.
[FN80].
Id. at 593, 599.
[FN81].
Id. at 594.
[FN82].
Id. at 587 (citing Lynch v. Donnelly, 465 U.S. 668, 678 (1984)).
[FN83].
See id.
[FN84].
Id. at 604 (Blackmun, J., concurring).
[FN85].
Id. at 592 (majority opinion).
[FN86].
See id.
[FN199].
The Bible Literacy Project Frequently Asked Questions, http://
www.bibleliteracy.org/Site/Case/index.htm (last visited Jan. 21, 2007)
[hereinafter Bible Literacy Frequently Asked Questions].
[FN200].
Id.
[FN201].
Id.
[FN202].
Id.
[FN203].
The Bible Literacy Project Textbook Use to Date, http://
www.bibleliteracy.org/Site/Curriculum/index.htm (last visited Jan. 21,
2007).
[FN204].
403 U.S. 602, 612 (1971).
[FN205].
Bible Literacy Frequently Asked Questions, supra note 199.
[FN206].
Id.
[FN207].
See generally The Bible Literacy Project, The Bible and Its Influence
(Cullen Schippe & Chuck Stetson eds., 2006) [hereinafter The Bible
Literacy Project].
[FN208].
Id.
[FN209].
Bible Literacy Frequently Asked Questions, supra note 199.
[FN210].
Id.
[FN211].
Ann Rodgers, Textbook Aims to Teach Bible with No Religion,
Pittsburgh Post Gazette Oct. 24, 2005, available at
http://www.post-gazette.com/pg/05297/593949.stm.
[FN212].
Id.; see also Bible Literacy Project, Eight Unique Features of the Bible
Literacy Project's Textbook, http://
www.bibleliteracy.org/Site/PressRoom/Press20050922/Press050922Distinctives.htm
(last visited Jan. 21, 2007) [hereinafter Bible Literacy Unique
Features].
[FN213].
See Bible Literacy Project, supra note 207 at iii-iv.
[FN214].
Steven L. McKenzie, Review of the Bible and Its Influence,
Society of Biblical Literature Forum,
http://www.sbl-site.org/Article.aspx? ArticleId=465 (last visited Jan.
21, 2007).
[FN215].
The Leonard E. Greenberg Center for the Study of Religion in Public
Life, Introduction to Marc Stern's Lecture at Trinity College: Is
Religion Compatible with Liberal Democracy? (March 17, 1999), available
at http://
www.trincoll.edu/depts/csrpl/Religion%20and%C20Liberal%20Democracy/stern.htm.
[FN216].
Id.
[FN217].
http://www.amazon.com (search “Books” for “Joanne McPortland”) (last
visited Jan. 21, 2007).
[FN218].
Marjorie Haney Schafer, Beginning at Jerusalem: Five Reflections on the
History of the Church, Spiritual Life, Summer 2005 available at
http://
www.findarticles.com/p/articles/mi_qa3885/is_200507/ai_n14685590/pg_2.
[FN219].
Eve Tushnet, Other People Paid Me to Write This, http://
evesjournalismandstuff.blogspot.com/ (June 3, 2006, 21:20 GMT).
[FN220].
Bible Literacy Project, supra note 207, at i.
[FN221].
Bible Literacy Project, About the Bible Literacy Project, http://
www.bibleliteracy.org/Site/Board/index.htm (last visited Jan. 21, 2007)
[hereinafter About the Bible Literacy Project]; Bible Literacy Project
Frequently Asked Questions, supra note 199.
[FN222].
About the Bible Literacy Project, supra note 221; Bible Literacy
Project, supra note 207, at iv; John M. Perkins Foundation, Who We Are,
http:// www.jmpf.org/whoweare.html (last visited Jan. 21, 2007); Diane
Winston, A Measure of Faith: George Gallup, Jr., Journal of Christian
Ethics Today, Vol. 17, at 7 (Aug. 3, 1998) available at
http://www.beeville.net/CETArt/index.cfm?
fuseaction=Articles.main&ArtID=23.
[FN223].
See Bible Literacy Project, supra note 207, at iv.
[FN224].
See Joseph L. Conn, Americans United for Separation of Church and State,
The Bible Literacy Project: Chuck Stetson's Trojan Horse?, Jan. 2006,
http://au.convio.net/site/News2?page=NewsArticle&id=7762&abbr=cs_ (last
visited Jan. 21, 2007). It should be noted that in conducting my
research, I found very few critics of this new curriculum. Of the
handful of individual criticisms I did find, one had only a few minor
reservations regarding the curriculum that are unrelated to its
constitutionality, while the others presented arguments that I address
in this Comment and indicated in their critiques a bias against the idea
of Bible classes in general. See Steven L. McKenzie, Review of the
Bible and Its Influence, Society of Biblical Literature Forum,
http://www.sbl-site.org/Article.aspx?ArticleId=465 (last visited Jan.
21, 2007).
[FN225].
The Becket Fund, Who We Are, http://
www.becketfund.org/index.php/person/3.html (last visited Jan. 21, 2007).
[FN226].
Id.
[FN227].
See generally The Becket Fund, http://www.becketfund.org/index.php (last
visited Jan. 21, 2007).
[FN228].
Institute for American Values at a Glance, http://
www.americanvalues.org/html/institute_at_a_glance.html (last visited
Jan. 21, 2007).
[FN229].
Institute for American Values, http://www.americanvalues.org (last
visited Jan. 21, 2007).
[FN230].
Id.
[FN231].
See generally Bible Literacy Project, supra note 207.
[FN232].
Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
[FN233].
See generally Bible Literacy Project, supra note 207.
[FN234].
See generally Bible Literacy Project, supra note 207; National Council
on Bible Curriculum for Public Schools, supra note 12.
[FN236].
See generally Bible Literacy Project, supra note 207.
[FN237].
E.g., id. at 10-11, 129, 186, 322.
[FN238].
E.g., id. at 54-55, 142-43, 320-21.
[FN239].
E.g., id. at 84, 116, 161-62.
[FN240].
E.g., id. at 163, 187, 246-47.
[FN241].
E.g., id. at 42, 158, 238.
[FN242].
See, e.g., id.
[FN243].
See id. at 297, 306.
[FN244].
E.g., id. at 24, 88.
[FN245].
See, e.g., id.
[FN246].
Id. at 360, 44, 188.
[FN247].
Id. at 132-33, 312-313.
[FN248].
See generally id.
[FN249].
Id. at 211-12.
[FN250].
Id. at 211.
[FN251].
Id.
[FN252].
E.g., id. at 37, 42, 51, 256.
[FN253].
See e.g., id. at 126, 145, 358, 206, 358.
[FN255].
For example, the text discusses the disagreement among the various
faiths as to the authorship of the Book of Isaiah. Bible Literacy
Project, supra note 207, at 116-17.
[FN257].
The curriculum explains how Jews and Christians differ on their views of
the Hebrew Scriptures, on the idea of original sin, and on their
interpretation of stories, such as the sacrifice/binding of Isaac. See
Bible Literacy Project, supra note 207, at 19, 38, 194.
[FN258].
Bible Literacy Project, Frequently Asked
Questions,http://www.bibleliteracy.org/Site/Case/index.htm (last visited
Jan. 21, 2007).
[FN259].
Bible Literacy Project Eight Unique Features, supra note 212.
[FN260].
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quoting Walz v. Tax
Comm'n, 397 U.S. 664, 674 (1970)).
[FN261].
See supra Part IV.A.3.
[FN262].
See generally Bible Literacy Project, supra note 207.
[FN263].
Id. at i.
[FN264].
See, e.g., id. at 190-91.
[FN265].
See generally id.
[FN266].
See e.g., id. at 358.
[FN267].
See id. at 12, 29, 169, 298, 310, 326, 342.
[FN268].
See generally id.
[FN269].
Id. at 10 (emphasis added).
[FN270].
Id.
[FN271].
See id. at 10-11.
[FN272].
Id. at 11.
[FN273].
See id. at 10-11; see also supra notes 149-56 and accompanying text.
[FN274].
Bible Literacy Project, supra note 207, at 11.
[FN275].
See id. at 50.
[FN276].
See id.
[FN277].
Id. at 50.
[FN278].
Id.
[FN279].
Id. (omissions in original).
[FN280].
Id. at 372-73.
[FN281].
See id.
[FN282].
See id.
[FN283].
Id. at 372.
[FN284].
Id.
[FN285].
Id. at 373.
[FN286].
See id.
[FN287].
See id.
[FN288].
Id.
[FN289].
Id.
[FN290].
Lynch v. Donnelly, 465 U.S. 668, 692 (1984).
[FN291].
See generally Bible Literacy Project, supra note 207.
[FN292].
See generally id.
[FN293].
Rodgers, supra note 211; Bible Literacy Project Unique Features, supra
note 212.
[FN294].
505 U.S. 577, 599 (1992).
[FN295].
Id. at 593.
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