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By Nicole Hunt
Focus on the Family
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Louisiana is poised to become the first state in the nation to require schools which accept public funding to post the Ten Commandments in every classroom.
This welcome development comes on the heels of former Bremerton High School football coach Joe Kennedy's win at the U.S. Supreme Court in 2022. In that 6-3 decision, the Court ruled the coach's silent prayers on the 50-yard line following games didn't violate the Establishment Clause of the First Amendment.
Proponents of the bill contend that, if it's legal to silently pray on school grounds, it's constitutional to post a multi-millennia-old document that's been foundational in the creation of our nation's laws. The proposal directly challenges Stone v. Graham, a 1980 Supreme Court decision that struck down Ten Commandment classroom displays across the country.
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Back then, the Justices applied the "Lemon test," which required the act to have a primarily secular purpose. In Stone, the Court held that the Ten Commandments served a plainly religious purpose and, therefore, violated the Establishment Clause.
Yet in the Kennedy case, today's Supreme Court clearly declared that it had "abandoned" the Lemon test and would instead look to "historical practices and understandings" to determine whether the government's actions violate the Establishment Clause. So, in the future, the Court will consider whether the Framers of the Constitution would have regarded the state actions as an establishment of religion.
Now, with the Lemon test officially rejected, it's fair to ask whether, under this alternative test based on "historical practices and understandings," a state could require a culturally and historically significant document, like the Ten Commandments, to be posted in public school classrooms.
In 1983, when the Supreme Court heard arguments in Marsh v. Chambers, the Justices decided to ignore the Lemon test. They looked at historical practices to help decide whether a paid legislative chaplain violated the Establishment Clause. The Court held it wasn't a violation to have a government-sponsored chaplain opening legislative sessions with prayer because historical context revealed "the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment."
Similarly, Louisiana lawmakers have a legitimate case to make that the Framers of the U.S. Constitution would not have considered it an establishment of religion to require posting the Ten Commandments in a public classroom.
Generations of Americans grew up with the Ten Commandments on their school walls. This universal set of ethical guidelines provides a moral foundation to promote the betterment of the individual and society.
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The Commandments also have special significance as a part of our Western cultural and legal heritage. Indeed, throughout American history, displaying them in public places has served as an acknowledgment of their influence in the development of our laws and morality.
Some opponents of the Louisiana legislation argue that it violates the separation of church and state. This is a specious claim—"separation of church and state" is never even mentioned in the U.S. Constitution.
The phrase comes from a letter Thomas Jefferson wrote to a Baptist church association. The association expressed concern about being targeted by the government for persecution because it was a religious minority. Jefferson used the phrase "separation of church and state" in an attempt to assure people of faith that the Constitution would protect their religious liberty from government discrimination.
Ironically, Jefferson's words have since been used by individuals who seek to exclude religion from the public square to discriminate against people of faith.
Regardless of what happens in Louisiana, the effort to return the Ten Commandments to the classroom isn't going away anytime soon.
Texas and Utah tried but ultimately failed to pass their versions of the Louisiana bill this past legislative session. North Dakota and South Dakota, among other states, have already passed laws that allow the Ten Commandments to be posted in public classrooms.
The time is ripe for the U.S. Supreme Court to revisit this topic.
Given the historical practices and understandings of the Framers of the Constitution, there is ample evidence that posting the Ten Commandments is neither an endorsement nor the establishment of religion.
Those who accuse legislators of doing so, or worse, falsely charging them of advocating for a theocracy, might want to consult commandment number nine: You shall not bear false witness against your neighbor.
Nicole Hunt is an attorney and writer for Focus on the Family's Daily Citizen.
The views expressed in this article are the writer's own.
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