Last week, Louisiana enacted legislation requiring every public school in the state Display a specific version of the Ten Commandments in every classroom. “I can’t wait to sue” Republican Gov. Jeff Landry announced days before signing the new law that the legislation aims to persuade the Supreme Court to legalize religious displays in government-run classrooms.
But will he get away with it?
The answer is unclear, and the courts’ current First Amendment precedents cut firmly against Louisiana’s law. But the court’s GOP-appointed majority has also overturned precedent on the separation of church and state over the past several years, so there is a very real risk that they will allow public schools to promote Christianity.
Courts have historically held that public schools have a Abnormally high obligation not to promote religious views, in large part because young people educated in these schools are unusually coerced To let this law stand is to take a sledgehammer to the wall separating church and state.
In fact, the new state law appears to have been written as the most offensive to the Constitution, or at least the Constitution, before former President Donald Trump reshuffled the Supreme Court.
For example, courts have often allowed the Ten Commandments to be displayed in government buildings when it is displayed with other historical documents that do not convey religious meaning. The Supreme Court’s own courtroom, for example, shows Moses holding the Ten Commandments Along with 17 other figures of mostly secular lawgivers — thus indicating that the commandments appear not as endorsements of a particular religious belief but as one of many examples in famous legal codes.
But Louisiana law Orders that must display only ten orders Many classrooms are likely to display them in isolation, since they are the only documents required by law to be visible to students — even though the law allows orders to be displayed with three other documents.
Similarly, in Engel v. Vitale (1962), an early case banning official compulsory prayer in schools, the court specifically warned against repeating the English Parliament’s practice of “recognizing the form and content of prayers used in the establishment and other religious ceremonies, the tax-supported Church of England.” under AngleA law that compels the government to use very specific words when it expresses a religious view is particularly offensive to the Constitution.
But Louisiana law doesn’t just require classrooms to display the Ten Commandments. It lays out in minute detail Specific words that must be displayedClassrooms should use a version of the command that Often used by Protestants And it differs from the version favored by most Catholics and Jews.
In other words, the law appears to have been drafted to minimize court precedents on the separation of church and state as much as possible. To uphold this law in its entirety, the Supreme Court would have to burn down almost all of the Constitution’s remaining restrictions on the law.Respecting the establishment of religion“On the ground.
And in light of the Court’s most recent religion decisions, it seems eminently possible that most justices will fuel that fire with enthusiasm.
So what does the law actually say about government-sponsored religious messages in public schools?
Until very recently, there was no question that states could not require public schools to display religious iconography, such as the Ten Commandments, at least when that iconography was displayed to promote religious views. That was holding Stone v. Graham (1980), a Supreme Court decision striking down Kentucky’s Ten Commandments law, similar to Louisiana’s new law.
but stone The Supreme Court decision in 1973 was at the core Lemon v. Kurtzman (1971), which stated among other things that all laws must have a “secular legal purpose”. The court’s Republican majority overruled lemon inside Kennedy v. Bremerton School Dist (2022).
before Bremerton, Supreme Court cases interpreting the Establishment Clause — the constitutional provision involving the separation of church and state — sought to maintain two related standards. The first was rooted in a liberal conception of the United States as a pluralistic nation, where people of many faiths should feel equally welcome within government institutions.
This pluralistic view was intended to contrast the United States with 16th-century England, which had an established state religion and left the Church of England’s task of approving the Book of Common Prayer to Parliament. This practice of state-drafted liturgies provoked constant political conflict over which prayers the government should support and which it should reject. as Angle As explained, religious groups “fought among themselves to impose their particular views on the government,” while less powerful religious believers literally fled the country—many of them becoming early American colonists.
Finally, the majority of the Court settled on the position that the government should not support any religious viewpoint. As Justice Sandra Day O’Connor wrote one Influential 1984 concurring opinion, official endorsement of faith undermines the notion that all Americans are politically equal. They “tell fans that they are outsiders, not full members of the political community” and simultaneously “tell followers that they are insiders, preferred members of the political community”.
but Bremerton Pouncing on this pluralistic view of religion in American society, Justice O’Connor compared the approach to “‘modified heckler’s veto, where . . . religious activity can be prohibited based on ‘ideas’ or ‘discomfort’.” Among the court’s Republican majority, there is no support for reading the Establishment Clause to prevent the government from supporting one religious viewpoint over another.
This leaves another line to erect this wall between church and state, which seeks to protect a different value: preventing the government from coercing religious behavior. Although Bremerton Rejecting a pluralist reading of the Constitution, it states that the government “may not compel anyone to join the Church.” So even this Court believes that there are some limitations to the government’s power to impose Christianity on unbelievers.
Still, it’s not at all clear that those limits are particularly strong. Held in court Lee v. Wiseman (1992) that public schools have a particularly high obligation to avoid religious activities. But it’s not clear that five of the current justices believe that Lee The decision was made correctly.
Lee Involves a public middle school that invites a rabbi to deliver a prayer at a graduation ceremony. Students were not required to bow their heads or otherwise participate directly in this prayer, but participating in their own graduation meant submitting to this government-sponsored display of religious devotion.
Five justices joined an opinion by Justice Anthony Kennedy, which argued that school-sponsored religious activities are uniquely coercive, so official displays of religion that might be tolerated in other settings are not permitted within a public school.
Kennedy wrote, “The undeniable fact is that school district oversight and regulation of a high school graduation ceremony involves public pressure, as well as peer pressure, during the invitation and prayer for students to stand as a group or, at the very least, to maintain respectful silence.” Such pressure, “though subtle and indirect, may be as real as any overt compulsion,” because it gives a young adherent “a reasonable perception that he is being forced by the state to pray in a way that his conscience does not permit.”
As of now, Lee Good law remains, and so it is a strong precedent against Louisiana’s Ten Commandments law. but Lee There was also a 5-4 decision, and Justice Antonin Scalia’s dissent rejected Kennedy’s suggestion that public schools have a special duty to avoid indoctrinating their students. Under Scalia’s approach, the Constitution is violated only when the government uses “the force of law and the threat of punishment” to compel religious activity.
And the court has moved further to the right since the four-judge dissent Lee.
There are three reasons why this court might uphold Louisiana’s law
Again, the approach that Justice Kennedy gave Lee, anyone challenging Louisiana’s Ten Commandments law has a very strong case. But there are three reasons to doubt whether the Court’s current majority will follow suit Lee.
The first is that Scalia’s dissent was written by, well, Scalia, a conservative icon whom many Republicans on the court speak of almost reverentially. Kennedy, meanwhile, was a more moderate conservative who often voted with the court’s more liberal bloc in cases involving cultural issues like abortion or gay rights. There are no Kennedy-style moderates on the current Supreme Court, and since Kennedy retired in 2018 the Court has moved relentlessly under Scalia’s direction.
The second is the majority opinion by Justice Neil Gorsuch Bremerton Scalia is cited favorably Lee Dissent, and it rather clearly lifts the language from that dissent.
Scalia’s Lee The dissent, for example, claims that it “Historical practice and understanding“A claim he justified mainly by citing the inaugural addresses of Presidents George Washington, Thomas Jefferson, and James Madison, all of which espoused religious views. Gorsuch’s Bremerton The opinion, meanwhile, contends that “the establishment clause must be interpreted by ‘References to historical practice and understanding.’”
More ominously for supporters of church-state separation, Bremerton Quoting Scalia Lee dissenting twice, once to support the proposition that “members of this Court have sometimes disagreed about exactly what qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.” because Lee At least in the classroom context, there is no reason to bring up this 30-year-old controversy, unless at least some justices believe the question should be reopened.
A third reason to doubt that Louisiana’s Ten Commandments law will be upheld by this Supreme Court stems from the unusual liberties taken with the cases in Gorsuch. Bremerton The Case This case involved a public high school football coach who rather impassively prayed at the 50-yard line after a game while often surrounded by students, parents and spectators.
One reason we know that Kennedy’s prayer was so public is Justice Sonia Sotomayor’s dissent Includes a picture of Kennedy in a prayer circle Seen with players, as members of the community, and as members of the media with video cameras.
And yet, in her Bremerton In the majority opinion, Gorsuch appears to have outright lied about the facts of the case, claiming that Koch only intended to say a “brief, personal, private prayer” — something that does not violate the Constitution’s Establishment Clause, even by more Justices like O’Connor. Improved vision.
The fact that a majority of the Supreme Court would so blatantly misrepresent the facts of a case, even against photographic evidence, bodes ill for anyone seeking refuge behind the Establishment Clause. The court’s Republican majority was so determined to rule in favor of this coach that they created alternative facts to justify doing so.
And now the same six judges who decided Bremerton Louisiana seems destined to consider whether it can use its public schools to encourage young citizens to become Protestants.
