Could a 2009 Idaho ballot initiative amend the Idaho Constitution to allow elective Bible curriculum in public schools?
Plain-English summary
A 2009 Idaho petitioner, Charles Seldon, filed a ballot initiative titled "Public Schools - Bible Curriculum" that sought to amend the Idaho Constitution to permit the Bible to be taught as an academic elective in Idaho public schools. He proposed to do this by ballot initiative referendum.
The Attorney General's Certificate of Review concluded the petition could not proceed in the form chosen. The procedural problem was simple but fatal: under Idaho Const. art. XX, § 1, the only mechanism for proposing a constitutional amendment is through the legislature. The provision requires that any proposed amendment first be approved by a two-thirds vote of each house of the Idaho Legislature, with yeas and nays entered on the journals. Only then is the proposed amendment submitted to the voters at the next general election for ratification by majority vote. Citizens of Idaho have an initiative power under Idaho Const. art. III, § 1, but that power extends only to ordinary legislation, not to constitutional amendments. So the petitioner had picked the wrong vehicle.
The AG also offered comments on the substantive issue: even a Bible-in-schools statute (as opposed to a constitutional amendment) would face significant legal challenges. The First Amendment Establishment Clause and Article IX, § 6 of the Idaho Constitution (which prohibits sectarian teaching in public schools) cut against using religious texts in classrooms. Idaho Code § 33-1603 reflects the constitutional prohibition: "No sectarian or denominational doctrine shall be taught in public schools, nor shall any books, tracts, papers or documents of sectarian or denominational character be used therein." Courts in other states have reached different results when religious texts have been challenged in academic-elective courses; outcomes have varied widely.
The AG offered drafting guidance: if the petitioner wanted to enact a statute (rather than amend the constitution), the initiative would need to be redrafted in legislative format, with all bracketed text and references to "referendum" removed and the language presented in a form ready for inclusion in the Idaho Code. The Certificate's recommendations were advisory only.
Currency note
This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Why can't Idaho citizens directly amend the constitution by initiative?
Because Idaho Const. art. XX, § 1 sets only one path for constitutional amendments: the proposal must originate in the legislature, win two-thirds of both houses, be entered on the journals with yeas and nays, and be ratified by a majority of voters at the next general election. The Idaho framers chose to keep amendment authority with the legislature, with the people serving as the ratifying body, rather than letting any group of citizens propose and pass amendments by simple majority initiative.
What is the difference between an initiative and a referendum?
In Idaho, an initiative is a citizen-proposed law (or proposed law plus voter approval). A referendum is voter approval or rejection of a measure already passed by the legislature. The petitioner used the words interchangeably; the AG's drafting guidance pointed out that for a citizen-originated proposal, the right term is "initiative."
Could Idaho enact a Bible elective by statute (not constitutional amendment)?
Possibly, but with risk. A statute would not require the constitutional-amendment process; it could be enacted by ordinary legislation or by citizen initiative. But the substantive Establishment Clause and Idaho's own sectarian-teaching prohibition (art. IX, § 6 and Idaho Code § 33-1603) would still apply. The constitutional prohibition reads broadly: "No sectarian or denominational doctrine shall be taught in public schools, nor shall any books, tracts, papers or documents of sectarian or denominational character be used therein."
What about academic study of the Bible "as literature"?
The U.S. Supreme Court in Abington School District v. Schempp (1963) acknowledged that the Bible can be studied for its literary or historical qualities in a non-devotional way. Whether a particular Idaho elective course would qualify depends heavily on its specific content, framing, and presentation, and on whether Idaho's stricter sectarian-teaching prohibition would accept that distinction.
Did this initiative go forward?
The Certificate of Review only addresses legal form. The petitioner could redraft the proposal as a statute. Whether that happened, or whether signatures were gathered for the original version, would need to be confirmed against Idaho election records.
Background and statutory framework
Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review.
Idaho Const. art. XX, § 1 sets the only path for amending the Idaho Constitution: a two-thirds vote of each house of the legislature, journal entry of the yeas and nays, publication in qualifying newspapers at least three times with arguments for and against, and ratification by a majority of voters at the next general election.
Idaho Const. art. III, § 1 vests legislative power in the Senate, House of Representatives, and the people through the initiative process. The people's initiative power is co-extensive with the legislative power for ordinary statutes, but does not include the separate constitutional-amendment process reserved to the legislature.
Idaho Const. art. IX, § 6 prohibits sectarian teaching in public schools, and Idaho Code § 33-1603 implements that prohibition by statute. Combined with the federal Establishment Clause, these provisions historically draw a sharper line in Idaho between church and state in public-school settings than the federal baseline alone.
Citations
Idaho Constitution: art. III, § 1; art. IX, § 6; art. XX, § 1.
Idaho Code: §§ 33-1603, 34-1809.
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C041509.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
April 15, 2009
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re: Certificate of Review
Proposed Initiative Petition Regarding Bible Curriculum
Dear Secretary of State Ysursa:
A proposed initiative petition was filed with your office on March 19, 2009, and received by this office on the same day. Pursuant to Idaho Code § 34-1809, this office has reviewed the proposed initiative and prepared the following advisory comments. This office offers no opinion regarding any policy issues raised by the initiative; the opinions expressed in this review pertain only to the legal issues raised by the initiative.
MATTERS OF SUBSTANTIVE IMPORT
Introduction
Titled "Public Schools - Bible Curriculum," the initiative seeks to amend the Idaho Constitution to allow elective courses on the Bible to be offered in the public school systems of the state of Idaho.
Petitioner seeks to:
- Amend the Constitution to permit the Bible to be taught as an academic elective course in public schools; and
- Accomplish this constitutional amendment through a proposed initiative referendum.
Petitioner may not accomplish the constitutional amendment through the method that Petitioner has chosen.
The Idaho Constitution Provides the Only Means by Which a Constitutional Amendment may be Accomplished
The Idaho Constitution, Article 20, § 1, states:
HOW AMENDMENTS MAY BE PROPOSED. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least three times in every newspaper qualified to publish legal notices as provided by law. Said publication shall provide the arguments proposing and opposing said amendment or amendments as provided by law, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution.
According to the Idaho Constitution, the only method for proposing constitutional amendments is through the legislature. Prior to placement of a constitutional amendment on the ballot, a two-thirds vote of each house of the legislature is required. Although citizens may stand in the place of the legislature by exercising their initiative power, this power does not extend to constitutional amendments. Any amendment to the Idaho Constitution must originate in the legislature.
If the citizens of Idaho wish to see changes to the Constitution, they should consult with members of the Idaho Legislature, who may follow the process set forth in the Idaho Constitution for proposing a constitutional amendment.
Litigation is Likely if a Law Were Adopted Permitting the Use of Bibles in Public Schools
The use of the Bible in the classroom, even when taught as a non-religious text, has been challenged in both state and federal courts around the country. The use of religious texts in public schools raises many issues of concern with respect to the First Amendment, as well as the provision in Idaho's Constitution that prohibits sectarian teaching in public schools. Idaho Const., Art. IX, § 6.
Idaho Code reflects Idaho's Constitution, which has been interpreted as drawing a sharper line between church and state than the U.S. Constitution. See Idaho Code § 33-1603 ("No sectarian or denominational doctrine shall be taught in public schools, nor shall any books, tracts, papers or documents of sectarian or denominational character be used therein.")
The use of the Bible in the classroom has been both upheld and struck down by courts. Given the difference in outcome around the country, it is impossible to forecast the result of any litigation that would arise should a law be enacted that would permit the Bible to be used in the classroom.
MATTERS OF FORM
A constitutional amendment cannot be initiated directly by citizens, but only by the legislature; nevertheless, a law can be proposed directly by citizens through an initiative. If citizens desire that a law be enacted, for example, a law permitting the Bible to be used in the classroom, then an initiative should suggest a statute rather than a constitutional amendment.
Under Article III, § 1, of the Idaho Constitution, legislative power can be exercised by either of two means: It can be proposed as a bill and enacted by both houses of the legislature, or it may be enacted by means of an initiative. Regardless of whether it is put forth as a bill or as an initiative, it should appear in a format capable of being included in the Idaho Code.
CONCLUSION
The proposed initiative seeks to do what it cannot do under Idaho's Constitution: generate a constitutional amendment through initiative/referendum. Because, according to Idaho's Constitution, a constitutional amendment must originate in the legislature, this initiative as proposed conflicts with constitutional law in Idaho. Suggestions for amending the initiative to conform with the permissible uses of the initiative power have been set forth in this review. These suggestions are not policy recommendations, nor are they comments on the underlying merits of the petitioner's proposed constitutional amendment. The suggestions are set forth for the sole purpose of providing the correct legal framework for an initiative.
CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import, and that the recommendations set forth above have been communicated directly to petitioner Charles Seldon, 3077 E. Bonview Dr., Boise, Idaho, 83712-8502, by deposit in the U.S. Mail of a copy of this Certificate of Review.
Sincerely,
LAWRENCE G. WASDEN
ATTORNEY GENERAL
Analysis by:
Melissa N. Moody
Deputy Attorney General
William A. von Tagen
Deputy Attorney General