Citing the Establishment Clause in the Constitution’s First Amendment and Supreme Court precedent, the US Court of Appeals for the 5th Circuit, in New Orleans, issued a unanimous ruling yesterday that upholds a lower court’s injunction blocking a recent Louisiana law that would have required schools to display the Ten Commandments in every classroom.
(Thomas Hawk/Flickr Creative Commons)“If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments,” the three-judge panel wrote. “This is not a permissible state objective under the Establishment Clause,” which states that the government cannot establish a religion.
Specifically, the ruling held that Louisiana’s HB 71 is unconstitutional based on the Supreme Court decision in Stone v Graham (1980), which struck down a Kentucky law that required displays of the Ten Commandments in classrooms. Only the US Supreme Court can overturn Stone. Other states, including Texas and Arkansas, have passed similar laws that would require schools to display the Ten Commandments. This ruling will have an impact on those laws as well.
The Supreme Court may yet overturn Stone. Just three years ago, justices overturned a precedent upon which Stone was based, an Establishment Clause test for government involvement with religion from Lemon v Kurtzman (1971). Lawyers for the state in the Louisiana case pointed that out, too, arguing that because the Lemon test was overturned in Kennedy v Bremerton School District (2022), a case involving a public high school coach’s pre-game prayer, Stone, which was based on Lemon, no longer applied.
The three-judge panel sitting on the 5th Circuit bench didn’t buy it, concluding that even under the Kennedy decision, the Louisiana law would be struck down since there was little historical evidence that the Ten Commandments were displayed in early American public schools.
But that was this time. As the Supreme Court chips away at the Establishment Clause, as it nearly did earlier this term in a case involving a religious charter school in Oklahoma, the nation awaits a case that will settle the issue once and for all. And when presidents start to espouse ideas that violate the crystal clear wording of the Constitution, all bets are off, and legal loopholes are but a turn of a phrase away.
