God’s mercy endures, but 3rd Circuit demurs

In the fall of 2004, Wesley Busch was a kindergarten student at the Marple Newtown School District in Marple, Pennsylvania. Each week, one of the students in his class would be the featured student in a classroom unit entitled “All About Me.” During their assigned week, students were asked to design a poster (favorite things to do, favorite things to eat, places to go, etc.) and on the final day of the week, one of the child’s parents was asked to come to class and bring something of importance to share. Often this would include bringing a favorite book to read for the class.

Wesley Busch and his mother Donna Kay Busch decided that what Wesley would like to share would be from his favorite book, the Bible. So on the assigned day, Mrs. Busch showed up at the school, prepared to read 5 verses from the Book of Psalms. Before reading, she informed Wesley’s teacher of what she was planning and the teacher immediately notified the school Principal who informed Mrs. Busch that he would not allow her to read the verses, as it would be breaking the law concerning the separation of church and state and thus violate the Establishment Clause of the United States Constitution.

Mrs. Busch filed suit against the school district, claiming violations of Wesley’s rights under both the U.S. and Pennsylvania Constitutions, including claims of denying her son’s rights of free speech and expression and free exercise of religious faith. The Busch’s lost in Federal District Court and on June 1, 2009 the lower court’s ruling was upheld by the 3rd Circuit Court of Appeals based in Philadelphia.

The opinion of the 3rd Circuit Court largely relies upon the belief that had Mrs. Busch been able to read the verses from Psalms, she would in effect by “proselytizing” in the school room, thus violating the Establishment Clause, as public schools are government entities and they should not endorse faith. Referring to the Lemon Test (developed by the Supreme Court in Lemon v. Kurtzman), a three-pronged checklist is used to determine whether or not a law violates the Establishment Clause. For this case, the pertinent test concerns the second prong: “The principal or primary effect must neither advance nor inhibit religion.” This test, as interpreted by the courts since the original decision in 1971, requires state neutrality towards religious faith.

When we consider the “All About Me” assignment and look specifically at the question of a student bringing in a favorite book for reading, should the school be permitted to censor what is permissible? When the school does allow Green Eggs and Ham to be read but does not allow 5 verses from Psalms, is it being neutral towards religion or is it discriminating against faith? An important distinction must be realized: having a student or parent read from a favorite book is not the same as if a teacher or other school employee were to do so. There is a significant difference between individuals expressing their faith in the school room as opposed to teachers in a public school setting.

We are, of course, left to wonder, what would have happened were the student to have brought in Heather Has Two Mommies or Daddy’s Roommate? Would these books have been permitted in spite of their clear agenda and attempt at persuasion? More often than not, the courts in recent years have allowed “proselytizing” when it promotes anything but religion. This, of course, is not neutral but in fact discrimination against religion.

The verses that Mrs. Busch intended to read were Psalm 118: 1-4 & 14
1 Give thanks unto the Lord, for he is good; because his mercy endures forever.
2 Let Israel now say, his mercy endures forever.
3 Let the house of Aaron now say, that his mercy endures forever.
4 Let them now that fear the Lord say, that his mercy endures forever.

14 The Lord is my strength and my song, and He has become my salvation.

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