Legal News

Courts Rule that Texas Sits on Right Side of Church/State Divide

By Nathan Koppel

The Law Blog heads now to the great state of Texas, where there has been a microburst of religion-and-law news this past month.

Two recent court rulings have looked at whether the Texas education code violates the Establishment Clause of the First Amendment. (Hat tip to the Adjunct Law Prof blog.)

First, the Fifth Circuit in March examined a 2003 Texas law mandating a moment of silence, in which students may "reflect, pray, meditate or engage in any other silent activity."

Texas parents of minor children claimed the law is an unconstitutional establishment of religion. But a unanimous Fifth Circuit panel saw it differently. "The primary effect of [the law] is not to advance religion" and the intent behind it was "to promote patriotism and allow for a moment of quiet contemplation. These are valid secular purposes."

A mere 10 days later in March, Dallas federal judge Ed Kinkeade also rejected an Establishment-Clause challenge to the Texas Pledge of Allegiance, which includes in the words "under God."

By law, every school district in Texas must require students to recite both the U.S. and Texas pledge, which states: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." The Texas pledge dates to 1933, but it was amended by the state legislature in 2007 to include the under-God part.

An embarrassing disclosure: this Law Blog cohort is a product of Texas public schools but had no idea there was a Texas pledge.

In any event, Judge Kinkeade ruled that the pledge does not violate the Establishment Clause. The Texas pledge, he concluded, does not endorse religion any more than the national pledge, which has been held to pass constitutional muster even though it also includes "under God."

Dean Cook, who represented the plaintiffs in both suits, says Kinkeade's ruling is "so sweeping that it could do damage to the separation of church and state, beyond the issue of whether 'under God' should be in the Texas pledge." As for the Fifth Circuit ruling he says, "I agree that [a moment of silence] is a relatively minor breach of the separation of church and state, but it softens the culture and encourages" further breaches.

Full post as published by Law Blog - WSJ.com on April 15, 2009 (boomark / email).