Lawmakers across the country are following Louisiana’s lead with legislation calling for the display of the Ten Commandments in public schools. Elected officials from Texas to Pennsylvania seem undeterred by the fact that Louisiana’s law, passed last year, never went into effect. I’m guessing they know it is only a matter of time before Louisiana is victorious in defense of the law’s constitutionality in court.
In my work with legal historian Professor Mark David Hall, we’ve shown that despite a widespread misunderstanding of the role of Christianity in our founding and decades of bad Supreme Court rulings, such displays are constitutional — a lesson the ACLU and others who challenged the Louisiana law are likely to learn soon.
While the founders were uniformly opposed to government imposing religion, they did think religion, especially Christianity, was extremely important to the founding of the country. They understood that humans are created in the image of God and instilled with dignity. And if people have dignity, they must have rights to protect that dignity. This is the religious inspiration for the huge number of rights enumerated for all citizens at the founding of the republic.
The founders also believed that to ensure the success of the American experiment, people needed to use those rights responsibly. Put bluntly, they must be moral. George Washington said in his Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” For a republican form of government to work, you must have a moral people, meaning a religious people.
What about Thomas Jefferson, you may ask? He is held up as the poster child for the strict separation of church and state, famously informing the Danbury Baptist Association in 1802 that the First Amendment created a “wall of separation between Church & State.”
The purpose of Jefferson’s letter was to reassure the Baptist congregation that the government wouldn’t interfere with their church, not that religion would have no place in the actions of government. He did not think the Constitution kept the government out of the business of religion altogether. For instance, as governor of Virginia, he invited his fellow Americans to join him in prayer. Jefferson also made the War Department and Treasury Department buildings available for church services. So, in his own political life, Jefferson didn’t act as if there were a wall of separation between church and state.
Recognizing the role of religion in America is one thing. But does the display of the Ten Commandments in public schools go too far?
There are all sorts of buildings in Washington, D.C., with scriptural engravings, including the Supreme Court building. No one has ever considered those an establishment of religion. And there’s also a long history and tradition of monuments of the Ten Commandments on public property.
Unfortunately, in the 1970s, the Supreme Court profoundly altered how the courts think about the establishment clause. In the 1971 case of Lemon v. Kurtzman, the Supreme Court devised a new test for courts to use when establishment clause violations are alleged. As Justia summarizes, the court advised lower courts to look at whether the law “has a legitimate secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an excessive entanglement of government and religion.”
The justices thought the Lemon test would help resolve the establishment clause conundrum. It did the exact opposite.
After Lemon, all sorts of things were held constitutional and unconstitutional. The court said a public school district couldn’t lend maps to a private religious school, but it could lend them textbooks that had maps in them. Government could subsidize bussing children to private Catholic schools, but it couldn’t subsidize field trips for children from private religious schools. The Lemon test was also applied in the 1980 Supreme Court case of Stone v. Graham. There the court struck down a Kentucky law mandating a standalone display of the Ten Commandments in public school classrooms.
Over the last decade, the Supreme Court has steadily dismantled the Lemon test. In American Legion v. American Humanist Association, the court held 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. In his opinion for the court, Justice Samuel Alito even noted that the Ten Commandments have historical significance as one of the foundations of our legal system. Three years later, in Kennedy v. Bremerton School District, the Supreme Court vindicated a public school football coach’s right to pray privately after games. Justice Neil Gorsuch’s opinion rejected the “ahistorical” Lemon test.
Shortly after Gov. Jeff Landry signed the Louisiana law mandating displays of the Ten Commandments in classrooms, the American Civil Liberties Union sued. It claimed the Ten Commandments are not a source of American law and that having the displays would unconstitutionally expose some people to a religion they don’t believe in. A few months later, a federal judge ruled in the ACLU’s favor, and the state appealed to the Fifth Circuit Court of Appeals. Professor Hall and I submitted an amicus brief in support of Louisiana with the appellate court.
Regardless of how the Fifth Circuit decides, we should expect the Louisiana case to be brought before the U.S. Supreme Court. We should also expect more states to follow Louisiana’s lead and pass similar laws. Given the Supreme Court’s rejection of the Lemon test and its many rulings upholding public displays of religion, it is time to state unequivocally that passive displays of the Ten Commandments in public schools are most certainly constitutional.
Andrea Picciotti-Bayer is director of the Conscience Project. She is a mother of 10, a Stanford-educated lawyer, and appears frequently in Catholic and secular media to discuss religious freedom controversies and to lend her legal expertise when discussing judicial matters.
Jesus Christ is King
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