“If you want to respect the rule of law, you’ve got to start from the original lawgiver, which was Moses.” So said Louisiana Gov. Jeff Landry when he signed a bill to require the Ten Commandments to be posted in every classroom in the state.
The Louisiana law has caused outrage from the left and the liberal intelligentsia. The ACLU has already announced it will be challenging the law in court as an unconstitutional establishment of religion. David French argued in The New York Times that rather than respecting the rule of law, Landry is defying it because the Supreme Court already ruled on the issue in Stone v. Graham in 1980. “To teach respect for the rule of law, he’s defying the Supreme Court?” French asked incredulously.
What French failed to mention is that in the Stone decision, the court based its ruling on the three-part “Lemon test,” which was used for decades by the Supreme Court to determine whether actions violated the establishment clause of the First Amendment. But in June of 2022, the United States Supreme Court, in Kennedy v. Bremerton School District, held that the standard in the 1971 case of Lemon v. Kurtzman, long criticized by many, was in error and put the final nail in its coffin.
The Lemon test had served to turn courts into de facto censors of any form of arguably religious speech or display in the public sphere, including displays of the Ten Commandments, nativity scenes and menorahs, and other displays, in hundreds of cases over the last 53 years.
Justice Neil Gorsuch, writing the majority opinion for the court in the Kennedy case, examined the preexisting Lemon test that set the standard, in part, that the establishment clause would be violated whenever a “reasonable observer” could conclude that the government had “endorsed” religion. That analysis, made up by the 1971 court, was completely without any historical basis (i.e., unprecedented either in case law or in history) and was outside the plain words of the First Amendment.
Besides the Lemon test being completely without precedent, Gorsuch revealed that it had been used to create a conflict between the clauses of the First Amendment. Utilizing Lemon as a “vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other” often caused courts to rule that free-speech and free-exercise cases had to yield to the establishment clause. Gorsuch made clear that, in the court’s opinion, such a conflict does not exist. “But how could that be? … A natural reading of [the First Amendment] would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”
In place of Lemon and the endorsement test, the Supreme Court instructed that the establishment clause must be interpreted “by reference to historical practices and understandings.”
Now that the Lemon test no longer controls, there is an organic drive among citizens to return the display of the Ten Commandments to public places. One of those efforts is in Alabama, where in 2003 the 11th Circuit ruled that a monument of the Ten Commandments had to be removed from the rotunda of the state judicial building because it violated the then-controlling Lemon standard. A Restore the Commandments petition has already gathered a multitude of signatures, calling for the display of the Ten Commandments in state buildings of each of the three branches of government.
The Ten Commandments indisputably reflect the values that underlie our legal system and way of life. For example, the respect for life, reflected in the commandment, “Thou shalt not kill,” is the basis for homicide laws. Respect for property, reflected in the commandments, “Thou shalt not steal,” and, “Thou shalt not covet,” provides a foundation for theft and property laws. Perjury and ethics law are reflections of the commandment to “not bear false witness.” We even respect days of rest from the workweek, which consist of Sunday, the Christian holy day, and Saturday, the Jewish Sabbath. The reasons for the establishment of the two-day weekend in the early 1900s hark back to the commandment, “Remember the Sabbath day, to keep it holy,”
The Ten Commandments remind us of our heritage and set forth principles on which the laws regulating behavior in daily life are based. There is no doubt the Ten Commandments are inextricably intertwined with our history, tradition, and laws. Historically, Ten Commandments displays were prevalent before 1971, when they began to be censored by the application of the Lemon test, which has now been overruled. Thus, “historical practices and understandings” are consistent with a return of the Ten Commandments displays to public areas.
Donna Cude is a retired attorney who volunteers on special projects with Eagle Forum of Alabama. Kristen A. Ullman is the president of Eagle Forum and a graduate of the Catholic University Columbus School of Law.
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