constitutional-law
Does the establishment clause prevent schools from promoting religious doctrine as truth?
<p>According to this man...
<a href="https://donotlink.it/7PyG" rel="nofollow noreferrer">https://donotlink.it/7PyG</a></p>
<blockquote>
<p>The modern notion that the separation of these powers implies opposition or incompatibility is a gross misrepresentation of the founders beliefs and intentions, imposed on the nation by a cabal of hyper-partisan Democrat secularists led by Supreme Court Justice Hugo Black (a virulent anti-Catholic and one-time member of the Ku Klux Klan), along with his co-conspirator Lyndon Baines Johnson, author of the “Johnson Amendment” that purported to ban church involvement in politics.</p>
<p>Black wrote the majority opinion in the 1947 US Supreme Court case Everson v Board of Education which redefined the separation of church and state as a barrier to church/state cooperation – reversing over 150 years of legal precedent in which it had been recognized as a facilitator of church influence in government. It was this early and egregious example of judicial activism in Everson that shifted America from following the Judeo-Christian presuppositions of the founders to the Secular Humanist presuppositions of Cultural Marxism: preventing government from recognizing the authority of God in our law and history.</p>
</blockquote>
<p>Except I know the founding fathers said differently. <a href="https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-4-the-constitution-doesnt-separate-church-and-state/240481/" rel="nofollow noreferrer">https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-4-the-constitution-doesnt-separate-church-and-state/240481/</a></p>
<p>It goes both ways then?</p>

<blockquote>
  <p>Does the establishment clause prevent schools from promoting religious
  doctrine as truth?</p>
</blockquote>

<p>Yes, in conjunction with the 14th Amendment to the United States Constitution that gives the First Amendment effect vis-a-vis state and local governments.</p>

<blockquote>
  <p>The modern notion that the separation of these powers implies
  opposition or incompatibility is a gross misrepresentation of the
  founders beliefs and intentions, imposed on the nation by a cabal of
  hyper-partisan Democrat secularists led by Supreme Court Justice Hugo
  Black (a virulent anti-Catholic and one-time member of the Ku Klux
  Klan), along with his co-conspirator Lyndon Baines Johnson, author of
  the “Johnson Amendment” that purported to ban church involvement in
  politics.</p>
</blockquote>

<p>This is ahistorical bunk from a conservative Evangelical Christian website that doesn't even try to come across as a neutral or unbiased account.</p>

<p>Separation of church and state was a concept well understood and prized at the founding (e.g. by Thomas Jefferson and James Madison), and was incorporated in many state constitutions in the time period during which the federal constitution was viewed as applicable only to the federal government. But, even then the U.S. Constitution had some narrow provisions that were applicable to the states including a ban on religious tests for public office that also applied to state and local governments.  Also, most states also separated church and state in their own state constitutions, often in language parallel to the First Amendment, but sometimes stronger.</p>

<p>For example, the parallel provision adopted in Colorado's Bill of Rights when it became a state in 1876 stated:</p>

<blockquote>
  <p>Section 4. Religious freedom. The free exercise and enjoyment of
  religious profession and worship, without discrimination, shall
  forever hereafter be guaranteed; and no person shall be denied any
  civil or political right, privilege or capacity, on account of his
  opinions concerning religion; but the liberty of conscience hereby
  secured shall not be construed to dispense with oaths or affirmations,
  excuse acts of licentiousness or justify practices inconsistent with
  the good order, peace or safety of the state. <strong>No person shall be
  required to attend or support any ministry or place of worship,
  religious sect or denomination against his consent. Nor shall any
  preference be given by law to any religious denomination or mode of
  worship.</strong></p>
</blockquote>

<p>The <a href="https://en.wikipedia.org/wiki/Treaty_of_Tripoli" rel="nofollow noreferrer">Treaty of Tripoli</a> (1796), for example, made clear that Christians and Muslims were equal and that the government favored neither, and was not a Christian nation. At that time, France (an ally of the United States) was pretty much the only other country in the world without an established national church. </p>

<p>Many of the notable Founders were <a href="https://en.wikipedia.org/wiki/Deism" rel="nofollow noreferrer">deists</a>.</p>

<p>In all or most of the Southeast United States. there was never an established church. The last established churches in the United States (in New England, see, e.g. <a href="http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195399677.001.0001/acprof-9780195399677-chapter-4" rel="nofollow noreferrer">here</a>), were disestablished before the Civil War. The successor denominations to the established churches of New England are the Congregational churches, the United Church of Christ, and the Unitarian Church (which later merged with the Universalist Church, a church which was never an established church but had similar doctrines).</p>

<p>The Bill of Rights eventually started to be applied to state and local governments relying doctrinally on authority granted in the 14th Amendment to the United States Constitution adopted during the Reconstruction era (specifically, in 1868). The incorporation doctrine applying the Bill of Rights to the states via 14th Amendment was <a href="https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights" rel="nofollow noreferrer">first applied in 1897</a>. Portions of the First Amendment had been incorporated not later than 1925. The free exercise clause of the First Amendment was incorporated in 1940. <em><a href="https://en.wikipedia.org/wiki/Cantwell_v._Connecticut" rel="nofollow noreferrer">Cantwell v. Connecticut</a></em>, 310 U.S. 296 (1940). It was all but inevitable that <em>Everson</em> (see below) would be decided that way that it was when it eventually came before the U.S. Supreme Court in 1947, many years before the U.S. Supreme Court made that ruling. Like all major U.S. Supreme Court rulings, this ruling was preceded by lower court rulings reaching the same conclusion.</p>

<blockquote>
  <p>Black wrote the majority opinion in the 1947 US Supreme Court case
  Everson v Board of Education which redefined the separation of church
  and state as a barrier to church/state cooperation – reversing over
  150 years of legal precedent in which it had been recognized as a
  facilitator of church influence in government. It was this early and
  egregious example of judicial activism in Everson that shifted America
  from following the Judeo-Christian presuppositions of the founders to
  the Secular Humanist presuppositions of Cultural Marxism: preventing
  government from recognizing the authority of God in our law and
  history.</p>
</blockquote>

<p>This is also false to the point of being laughable. <em>Everson v. Board of Education</em> (U.S. 1947) followed already well established law and doctrine. There has never been a time in U.S. history after disestablishment in which facilitation of church influence in government was recognized. This is fake history produced by <a href="https://en.wikipedia.org/wiki/Dominion_theology" rel="nofollow noreferrer">Christian Dominionists</a> to further their own political ends.</p>

<p>This isn't to say that <em>Everson v. Board of Education</em> wasn't an important holding. But, it was not a sharp departure for prior law. It was merely clarification of the details of existing law that was well established in particular stark and quotable terms. </p>

<p>To quote a brief portion of the Atlantic article linked in the question:</p>

<blockquote>
  <p>The attack on separation began as an attack on a letter by Thomas
  Jefferson to the Danbury Baptist Association, dated Jan. 1. 1802. 
  Jefferson assured the Baptists that "I contemplate with sovereign
  reverence that act of the whole American people which declared that
  their legislature should 'make no law respecting an establishment of
  religion, or prohibiting the free exercise thereof,' thus building a
  wall of separation between Church &amp; State."  In 1985, then-Justice
  William Rehnquist wrote that "unfortunately the Establishment Clause
  has been expressly freighted with Jefferson's misleading metaphor for
  nearly 40 years."</p>
  
  <p>But this argument ignores a historical fact. It's not Jefferson's
  metaphor. Even in 1802, separation was already deeply rooted in
  American religious history.  In 1644, the American theologian Roger
  Williams, founder of the first Baptist congregation in the British New
  World, coined the phrase to signify the protection that the church
  needed in order to prevent misuse and corruption by political leaders:
  "The church of the Jews under the Old Testament in the type and the
  church of the Christians under the New Testament in the antitype were
  both separate from the world; and when they have opened a gap in the
  hedge or wall of separation between the garden of the church and the
  wilderness of the world, God hath ever broke down the wall itself,
  removed the candlestick, and made his garden a wilderness."</p>
  
  <p>It is this concept--that use by political leaders of religion for
  their own ends was a danger both to the faithful and to the peace of
  society--that the Constitution embodies. <strong>James Madison wrote that
  government involvement with the church "implies either that the civil
  magistrate is a competent judge of religious truth; or that he may
  employ religion as an engine of civil policy. The first is an arrogant
  pretension falsified by the contradictory opinions of rulers in all
  ages, and throughout the world: the second an unhallowed perversion of
  the means of salvation."</strong></p>
</blockquote>

<p>It goes both ways, in numerous senses. The primary division in interpreting this clause is between those appealing to original intent, and those who appeal to the literal words of the text. Inquiry into earlier practices and intentions is irrelevant to textualists, but it is the core of intent-ionalist beliefs. For the latter, a more apt question is in terms of the framers, not the founders (not the same set of people), because the founders did not write the Constitution. The other problem is that it is historically clear that the framers did not all have the same opinions on the matter, and the historical record is not clear regarding the collective beliefs of those who participated in the constitutional convention. Moreover, we have to consider not just those delegates who agreed to it, but to the states that ratified it. And technically, the thinking of those who voted for the Constitution itself is not what we should focus on, it's those who wrote and enacted the amendments. In other words, it is completely unclear whose intent should be considered in adhering to original intent.</p>

<p>The original version says "Congress shall make no law establishing religion" and this was changed to "Congress shall make no law respecting an establishment of religion". If there is any documentation of the rationale behind that change, that would be historically enlightening. However, it is legally irrelevant, since the interpretation of the Constitution is a power of the Supreme Court, and the court has said what it has said. </p>

<blockquote>
<p>Does the establishment clause prevent schools from promoting religious doctrine as truth?</p>
</blockquote>
<p>If they are government funded schools: yes, <a href="https://en.wikipedia.org/wiki/Everson_v._Board_of_Education" rel="nofollow noreferrer">Everson v Board of Education</a> decided that the government (state or Federal) may not fund religion.</p>
<h2>It goes both ways, then?</h2>
<p>This has different answers depending on whether you are talking about history or law.</p>
<p><strong>History</strong></p>
<p>With all due respect to Mr Lively, Mr Epps and yourself, I strongly suspect that none of you was at the <a href="http://teachingamericanhistory.org/convention/the-convention/" rel="nofollow noreferrer">Constitutional Conventions</a>, did not speak to the <a href="http://teachingamericanhistory.org/convention/delegates/" rel="nofollow noreferrer">delegates</a> and therefore are not in a position to divine if they all had a united and unanimous view on &quot;separation of powers&quot; and what that was - either collectively or individually.</p>
<p>As a proper subject for academic historical enquiry, many PhDs, articles and books have and will be written about them and each historian has or will form their own thesis on the matter and provide evidence to support it.</p>
<p>Basically, history is never settled and, given that we rarely know what our contemporaries are thinking it seems unlikely that we can ever reach a view on what dead men (and they were all men) were thinking 240 years ago. Yes, we can read what they wrote but no one writes down <em>everything</em> they think - not even such textually prolific men as these were.</p>
<p><strong>Law</strong></p>
<p>When it comes to making a decision in a case, a judge considers interprets the law - be it the constitution, a statute, a binding or persuasive precedent or even the words of a contract - according to her own lights.</p>
<p>If the particular judge feels that <a href="https://en.wikipedia.org/wiki/Original_intent" rel="nofollow noreferrer">original intent</a> is the right theory to apply, either consistently or in the particular case, then they are free to do so. If they do so they will need to form their own view on what that intent was - informed, of course, by the submissions of the parties.</p>
<p>When the judge makes a decision as to what the relevant law, which may be the Constitution, means for this case then <em>that is what it means</em>. Pending appeal - unless you happen to be a justice of the Supreme Court.</p>
<h2>Alternative views in different times and places</h2>
<p><a href="https://en.wikipedia.org/wiki/Michael_Kirby_(judge)" rel="nofollow noreferrer">Michael Kirby</a>, former justice of the <a href="http://www.hcourt.gov.au/" rel="nofollow noreferrer">High Court of Australia</a> gave a lecture contrasting differences in the jurisprudence of the US, Canada and Australia entitled <a href="http://www.austlii.edu.au/au/journals/MULR/2000/1.html" rel="nofollow noreferrer">Constitutional Interpretation and Original Intent: A Form of Ancestor Worship</a> which starts with:</p>
<blockquote>
<p>Do United States judges, unlike their Australian counterparts, when ascertaining the meaning of their Constitution, engage in a quaint ritual of ancestor worship? Are our American colleagues so mesmerised by the awe in which they hold the revolutionary founders of the republic who wrote their Constitution (Jefferson, Madison, Hamilton, etc) that they feel obliged to construe the text, 220 years later, by ascertaining the intentions of those great men at the time they wrote it, however inapt those intentions might be to contemporary circumstances? In brief, when a problem arises under the Constitution of the United States of America, is the judicial duty to consult the historical records to discover the original intentions of the founders? Is the task ‘rather like having a remote ancestor who came over on the <em>Mayflower</em>’, (akin in our case, perhaps, to the <em>HMS Sirius</em>) and asking him or her the meaning of a political document that governs the affairs of the nation in the space age? Are there any risks that this quaint American ritual will travel to the Antipodes and capture the imagination of Australia’s judges in the task of interpreting the Australian Constitution (‘Constitution’)?</p>
<p>These were some of the controversies about constitutional interpretation which were debated recently in Auckland, New Zealand, at a conference on constitutionalism. Scalia J of the Supreme Court of the United States and Binnie J of the Supreme Court of Canada gave different answers. The former is probably the ‘most eloquent expositor’ of the modern theory of originalism. He believes that, of its nature, a written constitution has a fixed meaning which does not change with time and that such meaning of the text is the same as the words signified when the constitution was first adopted. Binnie J, recently appointed to the Supreme Court of Canada, was called upon to answer the criticisms implicitly directed by his United States colleague at the process of judicial elaboration of the Canadian Constitution and its Charter of Rights and Freedoms. It was in the context of defending the Canadian approach to that task, that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship.</p>
<p>The constitutions of the United States of America (1776–91); Canada (1867); and Australia (1901) are amongst the three most enduring of such documents in the world today. But what do they mean? The question of constitutional interpretation arises at the very threshold of every case in which the constitutional text must be elucidated. The text of the Australian Constitution — like those of the United States and Canada — is written in language which is brief, sometimes obscure and usually ambiguous. As recent shifts in the High Court’s elaboration of the meaning of the Constitution demonstrate, even an assertion that a particular construction of the text is ‘settled’ by many past decisions does not necessarily bolt the door against re-examination if new scrutiny is considered necessary by the majority of the Justices of the court. This is why the approach to the construction of the Constitution arises in all great constitutional disputes. It is an issue which has fascinated the Justices themselves. It has attracted a great deal of writing by scholars, both in Australia and overseas. It ought to concern all practitioners and students of the law in a federation, like Australia, with a written constitution adopted long ago. Citizens too should know about it.</p>
</blockquote>

<p>I must agree with pretty much everything in the answer by @ohwilleke, but want to emphasize a few points that were not covered in that answer.</p>

<p>First of all, the question title asks about a public school teaching religion as truth, but several answers have concentrated on funding instead. Nor did the quote which occupies most of the question (and is indeed a-historical junk) mentions teaching religion as truth in schools specifically. Teaching religion as truth was probably most squarely addressed in  <a href="https://en.wikipedia.org/wiki/Engel_v._Vitale" rel="nofollow noreferrer"><em>Engel v. Vitale</em>, 370 U.S. 421 (1962)</a>, the New York state "Regent's prayer" case. The prohibition, under both the establishment and free exercise clauses, of official doctrine, goes back at least to <a href="https://supreme.justia.com/cases/federal/us/319/624/" rel="nofollow noreferrer"><em>West Virginia State Board of Education v. Barnette</em>, 319 U.S. 624 (1943)</a>, the second flag salute case (overruling <em>Minersville School Dist. v. Gobitis</em>, 310 U. S. 586), in which state officials were prevented from requiring students to recite the Pledge of Allegiance. That decision said:</p>

<blockquote>
  <p>One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.  </p>
</blockquote>

<p>...</p>

<blockquote>
  <p>If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.</p>
</blockquote>

<p>Also, another answer said that:</p>

<blockquote>
  <p><em>Everson v Board of Education</em> decided that the government (state or Federal) may not fund religion. </p>
</blockquote>

<p>Not quite. <em>Everson</em> either assumed that, or respected an earlier decision which it did not cite explicitly. What was actually <strong>decided</strong> in <em>Everson</em> was that the government <strong>could</strong> provide funding used for religious purposes, in this case for transporting students to a religious school, but only if it was done under a neutral law or regulation, and if the primary purpose was secular (here to keep children safe and to aid all parents). In short, <em>Everson</em> indicated a limited <strong>exception</strong> to the rule against government funding of churches.</p>

<p>The creation science/evolution cases (2nd half of the 20th century) are probably a more direct ruling on teaching religious truth in public schools. I'll try to add a citation later.</p>
