Chris Whipple
Background
Earlier this month, a local school board in North Carolina failed to pass a policy requiring public school classrooms to display posters of the Ten Commandments.[1] The Iredell-Statesville School Board of Education (“I-SS Board”) voted against the proposal by one of its board members for a “Founding Documents” poster, featuring the Ten Commandments alongside the United States Constitution and Bill of Rights.[2] The I-SS Board noted concerns that the Supreme Court of the United States (the “Supreme Court”) has already held such a policy unconstitutional and did not have the budget to defend a policy they considered destined to be struck down.[3]
While calls for fiscal restraint to defend a controversial policy are commendable, it is less clear whether the precedent the I-SS Board points to would be upheld by today’s Supreme Court. It would certainly be easier to answer that question if a government entity—with a sizeable budget—was willing to test the theory. Thankfully, that question is unlikely to remain hypothetical, as the I-SS Board was not alone in considering such a policy. Several local and state governments have attempted to require such displays of the Ten Commandments in their classrooms, most of which have been unsuccessful.[4]
One notable exception would be Louisiana, which passed legislation earlier this year that requires public schools—from the elementary to postsecondary levels—to display posters of the Ten Commandments in every classroom.[5] Each poster must include a contextual statement indicating the historical role of the Ten Commandments in public education in the United States.[6] The law also authorizes schools to display other foundational documents such as the Mayflower Compact, the Declaration of Independence, and the United States Constitution.[7] Louisiana intends for the law to “ensure that students in our public schools may understand and appreciate the foundational documents of our state and national government.”[8] Unsurprisingly, the law was immediately challenged by the American Civil Liberties Union (“ACLU”), on behalf of several multi-faith families in Louisiana, who allege that the law violates the Establishment Clause of the Constitution.[9]
Current Precedent
In its Complaint in the United States District Court for the Middle District of Louisiana,[10] the ACLU cites to Stone v. Graham,[11] where the Supreme Court struck down a nearly identical law in Kentucky over forty years ago.[12] In Stone, displaying the Ten Commandments in classrooms was seen as “plainly religious in nature” and “serves no such educational function.”[13] The Supreme Court ultimately ruled that Kentucky’s law “had no secular legislative purpose, and is therefore unconstitutional.”[14] A seemingly open-and-shut case. However, cases since Stone call into question the soundness of its analysis, and changes in the Supreme Court’s composition raise the possibility of its willingness to relook its conclusion.
Developments Since Stone
The constitutionality of the displays in Stone was determined under the establishment test articulated in the now-abrogated case Lemon v. Kurtzman.[15] This alone means the Supreme Court would need to apply a different rationale to uphold Stone’s conclusion. The Supreme Court altered the analysis for Ten Commandment displays in a pair of conflicting cases published on the same day in 2005.[16] Justice Breyer, who often took a neutral approach to Establishment Clause analysis,[17] served as the critical swing vote in both cases.[18]
One case was McCreary County v. ACLU,[19] which found that posters of the Ten Commandments in Kentucky courtrooms were unconstitutional.[20] Like Stone, the Supreme Court in McCreary County reached its decision by applying the now-abrogated Lemon test.[21] The displays in McCreary County were also noteworthy as they did not have any indication they were erected for a secular purpose; only after the displays were challenged in court did the county legislatures add language to the displays indicating their historical significance.[22]
The other case was Van Orden v. Perry,[23] which found that a monument of the Ten Commandments on the grounds of the Texas State Capitol was constitutional.[24] While not overruling the Lemon test, the Supreme Court’s plurality noted that many “recent cases have simply not applied” it and did not find it “useful in dealing with” the monument in this case.[25] Instead, they would analyze the constitutionality of the Ten Commandments displayed “both by the nature of the monument and by our Nation’s history.”[26] The Supreme Court held that such a display can have a secular purpose of recognizing the role of religion “in our Nation’s heritage” and that “promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”[27] However, they did distinguish the monument from the displays in Stone, noting that this monument was “a far more passive use” of the Ten Commandments and that there are “particular concerns that arise in the context of public . . . schools” that are not present on the grounds of the State Capitol.[28]
The distinguishment in Van Orden remains a sizeable hurdle to overcome for Louisiana’s legal defense. However, the state may benefit from the changes in the Supreme Court’s composition since Van Orden, which has resulted in an increasingly accommodationist approach to Establishment Clause cases.[29] Under an accommodationist approach, the Supreme Court would “interpret the Establishment Clause to recognize the importance of religion in society” and find that the government violates it only when it “establishes a church, coerces religious participation, or favors one religion over others in its award of benefits.”[30] This approach has been seen in recent Establishment Clauses cases where the Supreme Court has reaffirmed that displays of the Ten Commandments on government property can “convey other meanings” such as its “historical significance as one of the foundations of our legal system.”[31]
Future Implications
Applying an accommodationist approach to the Louisiana case, it would not be difficult to see the Supreme Court reasoning that the law has a secular purpose of promoting “state and national history, culture, and tradition.”[32] Unlike the displays in McCreary County, the Louisiana law recognized this secular purpose when it was originally enacted.[33] The outcome of the case would thus turn on whether the display of the Ten Commandments in the context of a classroom is sufficiently coercive to violate the Establishment Clause. If the Supreme Court were to deem the displays as passive and something that students could ignore like the monument in Van Orden, Louisiana’s law would be ruled constitutional. Conversely, if it were to deem the displays as more akin to compulsory school prayer or Bible readings, the law would be ruled unconstitutional.[34] Given the Supreme Court’s current embrace of accommodationist analysis, and especially after its recent willingness to overturn decades-old precedent,[35] supporters and cynics alike could see a scenario where Stone is overturned.
For any legislative bodies seeking to implement similar policies that display the Ten Commandments in public schools, or legal practitioners advising such groups, this may not be such a clearcut case of “thou shall not.” Instead, given the changes of Establishment Clause analysis and the prevailing judicial philosophy of the Supreme Court, this may be a case of “wait and see.”
[1] Karissa Miller, I-SS Board Derails Effort to Display the Ten Commandments in All District Schools, Iredell Free News (Oct. 15, 2024), https://www.iredellfreenews.com/news-features/2024/i-ss-board-derails-effort-to-display-ten-commandments-in-all-district-schools/.
[2] Id.
[3] Id.
[4] Associated Press, Louisiana Will Require the 10 Commandments Displayed in Every Public School Classroom, NPR (June 19, 2024), https://www.npr.org/2024/06/19/nx-s1-5012597/louisiana-10-commandments-law-public-school-classrooms.
[5] Id.
[6] H.B. 71, 2024 H.R., Reg. Sess. (La. 2024).
[7] Id.
[8] Id.
[9] Civil Liberties Groups Will File Lawsuit Against Louisiana Law Requiring Public Schools to Display the Ten Commandments, ACLU Louisiana (June 19, 2024), https://www.laaclu.org/en/press-releases/civil-liberties-groups-will-file-lawsuit-against-louisiana-law-requiring-public
[10] Complaint for Declaratory Judgment and Injunctive Relief at 2, 39, Roake v. Brumley, No. 3:24-CV-00517, 2024 WL 3162067 (M.D. La. filed June 24, 2024).
[11] 449 U.S. 39 (1980).
[12] Id. at 39.
[13] Id. at 41–42.
[14] Id. at 41. In his dissent, Justice Rehnquist excoriated the majority for its unprecedented “summary rejection of the secular purpose articulated by the legislature and confirmed by the state court.” Id. at 43.
[15] Id. at 40. See Lemon v. Kurtzman, 403 U.S. 602 (1971), abrogated by Groff v. DeJoy, 600 U.S. 447 (2023).
[16] See Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. ACLU, 545 U.S. 844 (2005).
[17] Howard Gillman & Erwin Chemerinsky, The Religion Clauses 59 (2020).
[18] See Van Orden, 545 U.S. at 698; McCreary County, 545 U.S. at 848.
[19] 545 U.S. 844 (2005).
[20] Id. at 881.
[21] Id. at 859.
[22] Id. at 853.
[23] 545 U.S. 677 (2005).
[24] Id. at 681.
[25] Id. at 686.
[26] Id.
[27] Id. at 687, 690.
[28] Id. at 691.
[29] Gillman & Chemerinsky, supra note 17, at 58.
[30] Id. at 51–52.
[31] Am. Legion v. Am. Humanist Ass’n, 588 U.S. 19, 31–32 (2019).
[32] La. H.B. 71, supra note 6.
[33] Id.
[34] See, e.g., Lee v. Weisman, 505 U.S. 577 (1992) (school prayer); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (bible reading).
[35] See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
