The Ten Commandments, Classrooms, & the Constitution

Episode Notes

Transcript

Rebecca S. Markert:

What we’re seeing now is a push from an ultra conservative majority on the United States Supreme Court to reverse those decisions and get prayer back in school and allow teachers to indoctrinate young students. And I think that’s the difference is the makeup of the court and this movement of Christian nationalism in our country that really wants to impose a theocratic worldview on American citizens and live by certain dictates that not everybody in our country adheres to.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from the East Coast. This time Cape Cod. I write a blog named May It please the court and have three books out titled How To Get Sued the Sled and My New book. How would You Decide 10 famous Trials That Changed History? You can find all three on Amazon. In addition, we have a new podcast miniseries in dispute, 10 famous trials that changed history. It’s currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. The separation of church and state has always been a contentious topic in political circles. Now more than ever, we are seeing religion and our government collide in our classrooms. And before the Supreme Court on June 19th, 2024, this year, Louisiana governor Jeff Landry signed into law legislation requiring a poster sized display of the 10 Commandments in large, easily readable font in all public classrooms from kindergarten through state funded universities.

This new law, not surprisingly, was instantly met with opposition, questioning its constitutionality and lawsuits soon followed. Supporters of the law claimed it was not solely about religion, but also had historical significance. So today on Lawyer 2 Lawyer, we’ll discuss Louisiana’s 10 commandments classroom law. We’ll discuss the separation of church and state and what this could mean for classrooms across the country and to help us better understand today’s topic, we’re joined by Rebecca S Marker, vice president and legal director at Americans Giant for separation of church and state leading a team of attorneys working to protect the constitutional principle of separation between church and state. Rebecca has overseen more than 80 church state cases and coordinated and drafted Amicus Briggs and federal appellate courts across the country, including the Supreme Court. Rebecca is also a co-host and creator of the We Descent Podcast, a popular monthly podcast featuring secular women attorneys discussing true religious liberty and their work to keep religion and government separate. Welcome to the show, Rebecca.

Rebecca S. Markert:

Thank you so much for having me.

J. Craig Williams:

Rebecca, tell us about your role as vice president and legal director at Americans United for Separation of Church and State. What is it that you do?

Rebecca S. Markert:

My role at Americans United as Legal Director means that I manage a team of attorneys who work in the courts to protect the constitutional principle of separation between church and state. We have two litigation attorneys, one non-litigation attorney, a staff attorney who handles complaints short of going to court and two legal fellows who assist our litigation attorneys and several law student interns who help with our work as well.

J. Craig Williams:

So I’m presuming that you want to keep church and state separate. Give us a little bit of history about where that comes from and to use a current term originalism.

Rebecca S. Markert:

Sure. Well, as many people will be very quick to point out to me the term separation of church and state is not in the Constitution. And where that comes from is actually from a letter that Thomas Jefferson penned in 1802 to the Danbury Baptists where he explained that the first amendment of the US Constitution created a wall of separation between church and state. And that writing was then later used in a court case that was heard before the Supreme Court in the late 18 hundreds Reynolds versus the United States. And the court in that case wrote that Jefferson’s writing was to be thought of as the most authoritative interpretation of what the First Amendment and particularly the establishment clause of the First Amendment means. And so that’s where we get this foundational principle that religion and government should be separate. It is also one of the ways that our constitution guarantees equality and that every person is equal before the law. If we are all allowed to believe as we wish and freely, then we are all really equal as United States citizens.

J. Craig Williams:

Well the First Amendment itself, basically it says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof and then it goes on to the rest of the First Amendment. But that’s what it says about the religion. So how is it that the separation of church and state devolves from Congress being able to establish a religion or prohibit its free exercise?

Rebecca S. Markert:

Well, most of the rights in the Bill of Rights, the first 10 amendments to the United States Constitution need to be what is known as incorporated to the states and local governments. And that process happened in a case known as Everson versus Board of Education in 1947 where the Supreme Court heard a case involving religious liberty disputes and declared that through the 14th Amendment, the First Amendment establishment clause was incorporated to the states. So it’s not just a prohibition against Congress or just a prohibition against setting up a national church or an official religion. It involves much more than that and does apply to all state actors, whether they are in the federal government, state government, local government or municipal government.

J. Craig Williams:

I presume it also applies to school districts who want to put the 10 Commandments there.

Rebecca S. Markert:

Yes, that is absolutely correct. Correct. School districts are also government entities, so they are considered state actors under the law, and so they would be prescribed from doing anything that violates the establishment clause of the First Amendment.

J. Craig Williams:

So what was your reaction to Governor Landry’s move to put the 10 Commandments in the classrooms in Louisiana?

Rebecca S. Markert:

That’s an interesting question because of course it is appalling that we are in 2024 and living in a pluralistic society that is growing more and more diverse, particularly when we look at religious identification of Americans and particularly young Americans to see that there would be a push for this. It’s shocking in that way, but also given the work that I do, I’ve been doing this now for 15 plus years and seeing how the law has changed and how the courts have changed and how emboldened Christian nationalists really have been in imposing their particular religious view on ordinary Americans. It wasn’t all that surprising, particularly after the Supreme Court terms that we’ve seen. I’m talking about 2022 when we had three significant religious liberty cases before the US Supreme Court, and in those decisions they did eviscerate these protections that the establishment clause gives to protect true religious liberty and really eviscerated the wall of separation through the Kennedy v Bremerton decision, which involved a coach praying at the 50 yard line at public high school football games and then also through a case known as Carson v Macon, which involved funding to religious schools. So we sort of saw this trend happening that the Supreme Court was interested in dismantling the wall of separation and elevating certain religious privileges above others here most likely or most often Christianity over other religious faiths and no faith at all. And so to that extent, it really wasn’t that surprising because there are a lot of government officials who saw these moves from the Supreme Court as a way to even further push religious indoctrination on every American citizen, but in particular public school students.

J. Craig Williams:

Right. Well, this has been going on for some time. I mean, we could go back to a probably famous case with Clarence Darrow and the Scopes trial when they talked about evolution in classrooms and whether or not the Bible should be in classrooms. How is this fight today any different than the fight that we had then?

Rebecca S. Markert:

Well, I think now we are looking at, when you’re talking about some of those old cases like the scopes trial and a lot of the other school cases where there were religious liberty disputes, the court did come out on the side of religious freedom and making sure that government officials, including public school officials were not allowed to indoctrinate or preach to this young captive audience of school children. But what we’re seeing now is a push from an ultra conservative majority on the United States Supreme Court to reverse those decisions and get prayer back in school and allow teachers to indoctrinate young students. I think that’s the difference is the makeup of the court and this movement of Christian nationalism in our country that really wants to impose a theocratic worldview on American citizens and live by certain dictates that not everybody in our country adheres to.

J. Craig Williams:

Well, Rebecca, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Rebecca Market, she’s vice president and legal director of Americans United for Separation of Church and State, which we’ve been discussing here at some length. We talked about the original school cases, which kind of jumped into a variation of the school, and that’s book bans. They seem to have some religious bent to those as well.

Rebecca S. Markert:

Yes, they absolutely do. Americans United has a strong history. We’ve been around for more than 75 years. Part of our history is fighting censorship in any form, including banning of books and library censorship. Really one of the fundamental principles behind the First Amendment is this freedom of conscience and the ability to believe what you want and think what you want. And censoring library materials goes against that basic American principle and is something that we should all be upset about and fight against when we’re faced with something like that,

J. Craig Williams:

When these religious entities come in and try to put their belief system in place, is there room for the Church of the Flying Spaghetti monster?

Rebecca S. Markert:

There should be. I think that oftentimes when these disputes are happening, they are very quick to make sure that things like the Church of the Flank, spaghetti monster, the Satanic Temple, those are all excluded, but when you really kind of look at the reasons they’re excluding them, satanists are obscene or vulgar or they are indoctrinating kids in a way that is disapproving by parents and things like that. They seem to think that they advocate for things like obscenity, sexuality, all of that sort of thing, and that may not be the case entirely, but then they don’t look at the fact that the Bible, the Book of Mormon, a lot of religious texts, but the Bible in particular really have a lot of the same elements. So we look at some of the book bans across the country and they’ll be banning books because there is a theme about sexuality or it references sexual intercourse and rape and incest and things like that that are not appropriate for public school children, but at the same time, they won’t ban the Bible, which is loaded with those types of themes and topics, and that’s really a big disconnect.

J. Craig Williams:

There’s a wonderful book called The Harlet by the Side of the Road that cites all of those things in the Bible that should never find their way into a classroom, but there’s some pretty horrible things in the Bible. And for what explanation do people give for wanting those horrible parts of the Bible in there?

Rebecca S. Markert:

That is the biggest question, and it’s something that we should probably direct to them, but a lot of times

J. Craig Williams:

What do you hear is their excuses?

Rebecca S. Markert:

A lot of times it really is just that this is a book that sets out a moral code and Christianity is more than just that. You also have to look at reading the Bible in a certain context from when the date that it was written. There are all sorts of excuses as to why they don’t see how it’s similar.

J. Craig Williams:

So when we delve into this, how are the courts handling it? Are we simply getting a rejection of the separation of church and state and the language in the First Amendment? I mean, we’ve heard from Clarence Thomas the flag of originalism, and if you’re going to go that way, why won’t he adopt Jefferson’s words?

Rebecca S. Markert:

I think it really is that they are interested in imposing their particular worldview on everyone and that the hypocrisy that comes from a lot of these decisions and what you’re pointing out here versus looking at Jefferson’s words and looking at how the founding fathers saw the First Amendment. I mean President James Madison also has a lot of writings talking about how he thought it was inappropriate for the government to conduct prayers and other religious actions like that. They don’t want to look at that sort of history because that’s not necessarily what’s important to them. What’s important to them is pushing this Christian nationalist agenda on the people and they want to attain power to do just that and get it into every aspect of Americans lives from the public school to public parks and displays to just how we live our lives even privately, whether we want to have access to abortion care or contraception coverage and that sort of thing. I think you can never underestimate the hypocrisy right now at the Supreme Court in what they say they’re doing in terms of judicial interpretation and looking at history and historical practices and understandings, but then also the real life and present outcome that they would like to have.

J. Craig Williams:

What would you suggest someone who’s upset with a book band do in front of their school board?

Rebecca S. Markert:

Definitely go ahead and complain to the school board. They are public meetings and you are able to go before the school board and say your peace, talk to other parents and members of your community who have interest in the education of our young people, and if they are also so aligned, then to go with you and speak out. I think that’s the most important thing right now is we’ve seen Moms for Liberty and a lot of these other groups go and be active before these school boards, and we need to do the same and let these elected officials, whether they be just school board members or members of your state house or the federal legislature, we need to let them know that we are also their constituency. Their constituency is made up of more than just Christians. We are a very diverse, religiously diverse country and community, and they need to be accountable to us and know that we don’t all agree with what’s happening there. I think speaking out and voting and taking those real core American activism routes is most important right now,

J. Craig Williams:

And there seems to be a very well-funded effort to advance this theory and not so much of a well organized effort. On the opposite side, what can be done, if anything,

Rebecca S. Markert:

This is a billion dollar shadow network of organizations who have had a great long game in taking over our courts, taking over our legislatures and the executive, and really getting into every aspect of our public and private lives. And there isn’t a very good response on the other side. But in the last five years, I think things are changing. This area of practice, the establishment clause and religious liberty cases. A lot of this area had been taken for granted by a lot of people for a very long time. Now, people are starting to understand now that the courts have been captured what is really at stake, that all of the civil rights that people care about are being undermined by this court and that the separation of church and state is core to protecting all of those other rights that we care about. And so now there really seems to be a movement afoot to really change that course.

Our organizations and coalition partners are working together stronger and better than ever in all facets, be it in the courts or in the legislatures or just in grassroots activism. There is that coordination coming along. Unfortunately, we are probably always going to be outgunned in terms of money, but not necessarily in terms of the people power. And that’s what is really exciting and something that is really going to drive change. This is a very small group of individuals, and if the people who are against this, which is the majority of Americans, really get involved, wake up and start engaging in these issues, I think that we can write these courses. What Americans United has been saying for the last few years is that we need a national recommitment to the separation of church and state. And that is a hundred percent correct, and I think a lot of people even outside my professional circle are really understanding what the link is between the separation of church and state and all of these other issues and starting to see what is actually happening.

J. Craig Williams:

Well, Rebecca, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Rebecca Mark, she’s Vice President and legal Director of Americans United for Separation of Church and State, which we’ve been discussing here at some length. There’s been a lot of discussion lately about Project 2025, which seems to echo your warning that there’s a deep seated effort to infiltrate.

Rebecca S. Markert:

Yes. Project 2025 is very alarming and is this 900 page manifesto of sorts that really sets out a conservative theocratic view of what our country should look like and what the government should look like. And it goes through agency by agency and issue by issue on how they want to change things. And one of the real life examples of what Project 2025 if it is allowed to be implemented, one of the real life examples of what that might look like is a case that Americans United is actually involved in involving a Jewish couple out of the state of Tennessee, the Root and Rams who went to be foster parents. They wanted to foster to adopt a child, and when they were about to do a home study, were told by a Christian Foster agency that is funded by their state tax dollars. It’s an organization that’s contracted by the state to provide foster care services.

They were told by that Christian agency that they would not be eligible to be foster parents because they had made an executive decision a while ago that they would only allow foster parents who shared their Christian faith tradition and belief system. That type of situation, that discrimination that they faced is something that Project 2025 would allow and advance if it were allowed to be implemented because they want to have faith-based organizations to have all sorts of exemptions, which is really just allowing those organizations to discriminate on any reason here it was religion, but it could also be based on sexual orientation, discriminate based on gender identity, gender status. And that’s a horrifying world to live in, and I’m really heartened to see that there’s a lot of talk about Project 2025 and that Americans United was a driving force behind educating Americans about what this manifesto intends to do.

J. Craig Williams:

Well, Rebecca, we’ve just about reached the end of our program, so it’s time to wrap up and get your final thoughts as well as your contact information regarding Americans United. So if our listeners want to get involved, they can reach out to you.

Rebecca S. Markert:

Sure, sure. So if you are interested in learning more about Americans United, we would love for you to visit our website au.org. There you can find my contact information and get in touch if there’s anything that you would like to talk about in terms of church state violations that you see in your own community. And also if you want to learn more about religious liberty issues in our federal and state courts, I would encourage you to listen to the podcast that I host. We Dissent. You can find it on wherever you get your favorite podcast, but you can also go to our website, we descent.org.

J. Craig Williams:

Great. And by the way, I’ve listened to it. It’s a wonderful podcast, very interesting, and a lot of good deep thought about these subjects. Highly recommend it.

Rebecca S. Markert:

Thank you so much.

J. Craig Williams:

Great. Rebecca has been wonderful having you on the show. Thank you very much.

Rebecca S. Markert:

Thank you.

J. Craig Williams:

Well, if you haven’t figured it out by now, here’s Craig ran on today’s topic. I am solely in favor of the First Amendment the way that it was written in the Constitution, the way that Jefferson Madison, and our founding fathers originally interpreted, which is there is a separation of church and state, and it blows my mind that our Supreme Court can’t understand that distinction, especially when the flag of originalism is being waved so broadly and widely with all of the recent decisions that are being made because originalism then would go with separation of church and state. Well, that’s it for Craigs Rant on today’s topic. Let me know what you think, and if you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. And if you’d like to find out more about my new book, go to 10 famous trials.com. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic When you want legal Think Lawyer 2 Lawyer.

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