By Eliza Gray
April 16, 2015

Legislation to make the Bible the official state book of Tennessee was beaten back by the state Senate on Thursday, but even if the measure had become law, it would have been on constitutionally shaky ground, legal experts said.

The state Senate voted to “refer” a bill passed by the state House back to a legislative committee because of questions over its constitutionality, and Tennessee’s Republican Governor Bill Haslam has also criticized the bill.

Even though the Tennessee measure appears to be scuttled for now, this may not be the last the country sees such laws floated. On the heels of a quickly withdrawn attempt last year to make the Bible the official state book of Louisiana, a similar bill was introduced earlier this year in Mississippi. It fizzled in committee, but state Representative Tom Miles, a Democrat, said he plans to introduce it again next session. “We feel like if it would have hit the floor, we had the votes,” he told TIME.

As these states weigh measures on the Bible—and as religious exemption laws sparked concerns in Indiana and other states over potential discrimination against gays—the question of how much states can wade into issues of religious freedom is coming to the forefront. In some cases, proposed laws are clashing with the Constitution, experts said.

The Tennessee bill likely violates not just the state’s constitution—as a prohibited endorsement of religion by the government—but also the U.S. Constitution’s prohibition on laws “respecting the establishment of religion,” legal scholars said.

To test whether a law violates this clause in the Constitution, judges look to whether it’s an “endorsement” of a particular religion, or whether it is fundamentally secular, said Suzanna Sherry, a law professor at Vanderbilt University. For example, it’s easier to defend the inclusion of “under God” in the pledge of allegiance in schools because of the phrase’s history, but it could be more difficult to defend a law that a state adopts amid controversy.

Robert Blitt, a law professor at the University of Tennessee College of Law, said choosing an official state book is such a clear endorsement of religion that it would be hard for a state to defend. “I don’t think one could make a distinction that this is about invoking a generic god or having a national prayer breakfast. I think there is something substantively different making the Bible the official book of the state. Are they going to be printing copies of the official state book? Hosting the state book on government websites? That gets into entanglements that are problematic.”

But as a practical matter, a case against the Bible as a state book might be surprisingly difficult to win.

The issue is that anyone who wants to challenge the constitutionality of a law must show that they were harmed by it, and there is a question of who specifically would be harmed by the Bible becoming a state book. It’s easier to challenge laws that subsidize religion, as well as public religious displays like a nativity scene, because they clearly affect individuals.

No matter what happens to the Tennessee bill, its success in the state’s House has given legislators who support these bills, like Miles in Mississippi, something to celebrate. “I’m proud they were able to get a vote for it, because I think that’s great impact,” he said.

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