Louisiana Is Right about the Ten Commandments 

W alk into any public school in America today, and you will find posters promoting kindness, friendship, and generosity. There are also likely to be signs celebrating Pride Month. Why not add to this visual feast a list of “rules to live by” that are embraced by billions of people around the world? They’re called the Ten Commandments.

Last week, Louisiana’s Republican governor Jeff Landry signed into law a mandate that public schools hang a poster in every classroom with the text of the Commandments, plus three paragraphs that explain their prominence in the history of American education. The usual suspects went ballistic. The ACLU, Americans United for the Separation of Church and State, and the Freedom from Religious Foundation have sued.  Slate’s Mark Stern and Dahlia Lithwick claim that the Louisiana law “couldn’t be anymore unconstitutional.” The New York Times reports that the move “signals a broader Christian agenda,” and MSNBC ran an opinion piece entitled: “Louisiana’s new mandate is the first step in a sinister vision for the country.”

A “sinister vision”?

Let’s ignore the blatantly anti-Jewish and anti-Christian resonances of such a description of a sacred text from the Hebrew Bible and look at whether the Louisiana law runs afoul of the Establishment Clause of the U.S. Constitution’s First Amendment. Opponents of the law insist that Supreme Court precedent is on their side. Look more closely, however, and we see that the ACLU and company are relying on old cases from an era in which the Court misunderstood and trivialized religion. Recent cases suggest that it no longer does so.

In 1980, the Supreme Court struck down a similar Kentucky law mandating the display of the Ten Commandments in the state’s public-school classrooms. The 5–4 majority in Stone v. Graham applied the now-discredited Lemon test, based on a 1971 Court ruling that called for an examination of a law’s purposes, effects, and potential for entanglement with religion — in effect, creating an unhistorical new barrier between church and state. “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature,” explained the majority in the Stone per curiam opinion.

One of the four dissenters, then-Justice William Rehnquist, wasn’t convinced. “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin,” he wrote. He agreed with Kentucky lawmakers that the Ten Commandments “have had a significant impact on the development of secular legal codes of the Western World.” Rehnquist added: “The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional.” John Roberts, the current Chief Justice of the Supreme Court, served as one of Rehnquist’s judicial clerks at the time.

Twenty-five years after Stone, the Court — again relying on the Lemon test — issued a pair of rulings dealing with displays of the Ten Commandments on government property. In the first case, Van Orden v. Perry, the Court held that the Ten Commandments could be on display on the grounds of the Texas state capitol in recognition of religion’s role in American history. The author of the Court’s opinion, now-Chief Justice Rehnquist, observed that “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”

The Court came to a different conclusion in the second case. In McCreary County v. ACLU of Kentucky, the Court ruled that a county rule mandating the Ten Commandments be displayed in county courthouses was unconstitutional, agreeing with the lower courts that the government’s intention was to advance religion. “The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion,” asserted Justice David Souter for the majority. But Justice Antonin Scalia was not convinced. “Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century,” he wrote in a fiery dissent.

The Court has since abandoned strict adherence to Lemon, opting instead to interpret the Establishment Clause “by reference to historical practices and understandings.” Take, for example, the Court’s 2019 case American Legion v. American Humanist Assoc. in which the Court concluded that the Bladensburg Cross, a 32-foot Latin Cross World War I Memorial that stands on public property in Maryland, did not violate the Establishment Clause. Justice Samuel Alito’s opinion for the Court noted that a Cross had significance in addition to being a Christian symbol, and that the passage of time “imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning.”

Interestingly, Alito pointed to the Ten Commandments to bolster his point: “For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital.”

In addition to the “historical significance” of the Ten Commandments as “one of the foundations of our legal system,” a court reviewing the Louisiana law will rightly follow the Court’s practice of being “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” But unlike mandatory religious activity as part of a public school’s curriculum, such as Bible readings and the recitation of the Lord’s Prayer found by the Court to violate the Constitution, the Louisiana law mandates only that the Ten Commandments be displayed. Students are not compelled to recite them; nor are teachers required to read them aloud to their pupils.

The Court is now well-placed to revisit the question of how much “religious content” in schools is too much under the Constitution. In doing so, it will recognize that times have changed: The Lemon test is dead, and Stone should be cast aside as a relic of the days of judicial hostility toward religion. Watch this space.