Louisiana Republican Gov. Jeff Landry last week signed a bill requiring all public classrooms in the state to display the Ten Commandments. The law authorizes but does not require the display of other historical documents such as the Mayflower Compact, the Declaration of Independence and the Northwest Ordinance.
The law does not specify the size or format of the display but does require the display include text explaining the historical significance of the Ten Commandments in public education in the U.S.
A coalition of The American Civil Liberties Union, its Louisiana chapter, Americans United for Separation of Church and State, and The Freedom from Religion Foundation filed a lawsuit against Louisiana on Monday on behalf of nine families.
Law doesn't change, but justices do
As Louisiana preps for legal challenges to its new Ten Commandments law, it has to read the tea leaves of the Supreme Court just as Michael Donnelly does in making his own predictions. He’s predicting good things for the state's defense.
“It appears the Court is going a different way in evaluating whether something establishes religion, and this case is going to the Supreme Court almost certainly,” Donnelly, an attorney and law professor, said on American Family Radio Tuesday. “There’s a majority on the Court who think we’re doing too much at the federal level, and we need to push things back to the states.”
Signs of change emerged not only when the Court overturned Roe v. Wade, Donnelly said. The justices’ interpretation of law changes overtime, and what is known in legalese as Supreme Court doctrine begins to emerge.
In essence, the law doesn’t change, but the justices do – and that affects the rulings that are handed down, according to Donnelly.
That’s why the Supreme Court, in a 6-3 decision just days after the Dobbs decision in 2022, ruled in favor of Joseph Kennedy, a high school football assistant coach who routinely prayed at the 50-yard line after games.
The Bremerton, Washington School District asked Kennedy to stop, concerned that his actions could be interpreted as a district endorsement of religion. Kennedy sued, arguing that his First Amendment rights were being violated.
Kennedy won the case because the justices spurned the “Lemon Test,” Donnelly said.
The Lemon Test is key reading tea leaves
The Lemon Test is a three-pronged method to determine whether a government action violates the Establishment Clause of the First Amendment which prohibits the establishment of state-sponsored religion. The Supreme Court first used the test in the case of Lemon v. Kurtzman in 1971.
The test requires: the government action to have a legitimate, non-religious purpose; that it not have the primary effect of advancing or inhibiting religion; that it not result in excessive entanglement between government and religion.
“It was Kennedy-Bremerton, the praying coach case, in which the Court essentially said, ‘Look, we’re not looking at the Lemon Test on these issues. We’re going to look at the history and traditions of this country and see whether … a proposed government action violates the history and tradition.’”
The history for a broader relationship between religion and the U.S. government has always been there, Donnelly explained.
“It was only in the '60s and '70s when people said, ‘Wait a minute? The Constitution doesn’t allow this? We’ve been doing this for 150 years, and now the Constitution says we can’t? What changed?' Well, the judges on the Court changed,” Donelly said.
The Court’s current climate bodes well for Louisiana in challenges ahead, Mat Staver, chairman of Liberty Counsel, said on Washington Watch Monday.
However, success for Louisiana will require the Supreme Court to overturn a 1980 ruling in the case Stone v. Graham in which Kentucky sought to post the Ten Commandments in classrooms. In that instance, the justices did apply the Lemon Test when ruling the state of Kentucky violated the Establishment Clause when it sought to post the Ten Commandments in its public school classrooms.
“Now with Lemon being overturned, the Supreme Court says we need to go back to a historical approach to the Establishment Clause. That’s exactly why Louisiana took this opportunity to pass this law. They are on very good legal standing,” Staver told show host Jody Hice.
Louisiana’s position that the Ten Commandments have greatly impacted law in the United States is rooted in history, Staver said.
“If you go back to the Ten Commandments, prior even to the founding of America, they have for thousands of years influenced law in governments and societies. They certainly had a big influence in Europe. That influence carried over here in the United States,” he said.
That history is why the Ten Commandments appear in some form 50 times in and around the Supreme Court, he said. The Ten Commandments are even part of the official seal of the Ninth U.S. Circuit Court of Appeals “which has been known infamously as a very activist court,” Staver said.
“The Ten Commandments are critically important and influential in American law and government. If you go back to many of our early states and our judiciary laws and many decisions, they actually reference the Ten Commandments when we are referring to laws such as theft, murder, being truthful under oath and so forth,” Staver said.
Strong record with the Supremes
All ten of the commandments have been cited as the basis for law at some point. “They’re very influential,” Staver concluded.
Liberty Counsel has never lost a Ten Commandments case at the Supreme Court level, whether as a stand-alone case or in the context of other legal documents.
