In the public mind, the United States Constitution mandates a “separation” between church and state. As a result, many people espouse ideas that suggest that public schools may not so much as permit discussion of religion on school premises. Most school attorneys know, however, that the reality is much different.
The First Amendment of the United States Constitution does indeed prohibit the “establishment” of a national religion and courts have construed this to mean that government, including state and local government via incorporation under the Fourteenth Amendment, may not entangle itself excessively with religion. Yet, case after case has demonstrated that the line between religion and government is a dashed one at best. Moreover, the First Amendment’s protection of individual rights to expression of religion mean that government cannot excessively interfere with or burden the rights of citizens to engage in religious activity. As a result of this, religion happens in public schools in America; there are just limits on how and when it happens.
A recent example of this is H.B. 46 which the Kentucky General Assembly passed last term. It amends KRS 158.195 to require public schools to post the national motto “In God We Trust” in a prominent location on its elementary and secondary schools. The ACLU of Kentucky opposed the bill, on the belief that it “sent a message that only students who believe in God are welcome in our public schools.” No action has yet been taken to challenge the law in court or prevent its enforcement. This may be because Sixth Circuit precedent suggests that such a challenge would be an uphill battle. In ACLU v. Capitol Square & Advisory Board, 243 F.3d 289 (6th Cir. 2001), the Sixth Circuit rejected a First Amendment challenge to Ohio’s state motto “With God All Things Are Possible”. While this decision does not apply to schools specifically, it certainly suggests that a motto which merely mentions “God” does not necessarily offend the Establishment Clause.
Thus, as it now stands, Kentucky public schools are preparing for the school year by, among other things, adding the motto to their school buildings.
