Louisiana's New Ten Commandments Law Is Absurd

Court Precedent Is Clear. Louisiana Has Violated the Establishment Clause of the First Amendment.

The new Louisiana law that requires all schools that receive funding from the state to display a copy of the Ten Commandments is getting a lot of attention. The law, SB 71, has renewed the debate on the First Amendment’s guarantee of religious liberty and the prohibition on the establishment of religion.

SB 71 states, “No later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction. The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches. The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.”

The text also gives several instances of the recognition of God or the Ten Commandments in American history, such as the Mayflower Compact of 1620, and illustrations of Moses and the Ten Commandments on government property. Such examples include the Supreme Court.

Interestingly, SB 71 mentions a 2005 Supreme Court decision in Van Orden v. Texas. The Court upheld the display of the Ten Commandments at the Texas State Capitol in Austin. The irony here is that the same decision reiterates the Supreme Court’s decision in Stone v. Graham (1980). Chief Justice William Rehnquist wrote in his opinion in Van Orden, “There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom.”

The Court’s decision in Stone is more interesting than Rehnquist, who was on the Court when the case was decided and dissented, suggests. The opinion of the Court in Stone states:

This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:

“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally the statute must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman,403 U. S. 602,403 U. S. 612-613 (1971) (citations omitted). If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional.

Kentucky tried to avoid running afoul of the Lemon test. Each copy of the Ten Commandments on display included language that read: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The Court rejected the attempt, as the majority opinion explains, “Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”

The American Civil Liberties Union (ACLU) has announced its plans to sue the State of Louisiana over SB 71. Good. SB 71 clearly fails the Lemon test.

Another irony of SB 71 is a reference to James Madison, who, according to the text of the new Louisiana law, once wrote, “(w)e have staked the whole future of our new nation…upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments."

The problem is that there’s no evidence that Madison ever wrote these words. In fact, Madison, who led the passage of the Virginia Statute for Religious Freedom, was a proponent of the separation of church and state. In 1819, Madison wrote, “Whilst the number, the industry, and the morality of the priesthood & the devotion of the people have been manifestly increased by the total separation of the Church from the State.”

Although I’m an atheist, I don’t have a problem with the government taking a deist approach to God. The Court has referred to this as “ceremonial deism” in Lynch v. Donnelly (1984) and Elk Grove Unified School District v. Newdow (2004). Obviously, the Court today is very different than it was 19 or 20 years ago.

I hope the ACLU is successful. The intent of SB 71 isn’t educational. It’s based in Christian nationalism. This flatly wrong belief that America is a “Christian nation” when the Constitution’s only two mentions of religion are to prohibit religious tests for public office and to prevent Congress from establishing religion.

Am I convinced that the current Court will strike down SB 71? I wish I could say yes, but it should.