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Last week, Louisiana enacted legislation requiring every public school in the state to display a specific version of the Ten Commandments in each classroom. “I can’t wait to be sued,” Republican Gov. Jeff Landry proclaimed a few days before signing the new law, erasing any doubt that the purpose of this legislation is to coax the Supreme Court into legalizing religious displays in government-run classrooms.
But will he get away with it?
The answer is unclear, and the Court’s current First Amendment precedents cut strongly against Louisiana’s law. But the Court’s GOP-appointed majority has also spent the last several years rolling back precedents separating church and state, so there is a very real risk that they will allow public schools to promote Christianity.
The Court has historically held that public schools have an unusually high obligation not to promote religious viewpoints, in large part because the young people educated in those schools are unusually vulnerable to coercion. Allowing this law to stand would mean taking a sledgehammer to the wall separating church and state.
Indeed, the new state law appears to be written to be maximally offensive to the Constitution, or, at least, the Constitution as it was understood before former President Donald Trump remade the Supreme Court.
The Court, for example, has often permitted the Ten Commandments to be displayed in government buildings when it is shown alongside other historical documents that do not convey a religious meaning. The Supreme Court’s own courtroom, for example, displays Moses holding the Ten Commandments alongside 17 other images of mostly secular lawgivers — thus indicating that the Commandments are displayed not as an endorsement of a particular religious belief but merely as one of many examples of famous legal codes.
But Louisiana’s law mandates that only the Ten Commandments must be displayed in classrooms. Many classrooms are likely to display them in isolation, since they are the only document that must be visible to students under the law — although the law does permit the Commandments to be displayed alongside three other documents.
Similarly, in Engel v. Vitale (1962), a seminal case prohibiting government-mandated prayers in school, the Court specifically warned against repeating the English Parliament’s practice of setting out “in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” Under Engel, a law that requires the government to use very specific words when it communicates a religious view is particularly offensive to the Constitution.
But Louisiana’s law does not just require classrooms to display the Ten Commandments. It also lays out in minute detail the specific wording that display must use, requiring classrooms to use a version of the Commandments that is often used by Protestants and that is different than the version preferred by most Catholics and Jews.
The law, in other words, appears to have been drafted to undercut as much of the Court’s precedents separating church from state as possible. To uphold this law in its entirety, the Supreme Court will need to burn nearly all that remains of the Constitution’s ban on laws “respecting an establishment of religion” to the ground.
And it seems eminently possible, in light of the Court’s most recent religion decisions, that a majority of the justices will light 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 in order to advance a religious viewpoint. That was the holding of Stone v. Graham (1980), a Supreme Court decision striking down a Kentucky Ten Commandments law similar to Louisiana’s new law.
But Stone was rooted in the Supreme Court’s 1973 decision in Lemon v. Kurtzman (1971), which, among other things, held that all laws must have a “secular legislative purpose.” The Court’s Republican majority overruled Lemon in Kennedy v. Bremerton School District (2022).
Before Bremerton, Supreme Court cases interpreting the Establishment Clause — the constitutional provision involving separation of church and state — tried to uphold two related values. The first was rooted in a liberal notion of the United States as a pluralistic nation, where people of many faiths should feel equally welcome within government institutions.
This pluralistic vision was intended to contrast the United States with 16th-century England, which had an established state religion and left the task of approving the Church of England’s Book of Common Prayer to Parliament. This practice of state-drafted liturgy fueled constant political conflict over which prayers the government should endorse and which ones it should reject. As Engel explained, religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
Eventually, much of the Court settled on the position that the government must not endorse any religious viewpoint. As Justice Sandra Day O’Connor wrote in an influential 1984 concurring opinion, government endorsements of faith undermine the idea that all Americans are politically equal. They tell “nonadherents that they are outsiders, not full members of the political community” while simultaneously telling “adherents that they are insiders, favored members of the political community.”
But Bremerton dumps all over this pluralistic vision of religion in American society, likening Justice O’Connor’s approach to a “‘modified heckler’s veto, in which … religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’” There appears to be no support whatsoever, among the Court’s Republican majority, for reading the Establishment Clause to prevent the government from endorsing one religious view over another.
That leaves another line of cases establishing this wall between church and state, which seeks to protect a different value: preventing the government from coercing religious behavior. Though Bremerton rejects the pluralistic reading of the Constitution, it does state that the government “may not coerce anyone to attend church.” So even this Court appears to believe there are some limits on the government’s ability to impose Christianity on nonbelievers.
Still, it’s not at all clear that those limits are particularly robust. The Court held in Lee v. Weisman (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 was correctly decided.
Lee involved a public middle school which invited a rabbi to deliver a prayer at a graduation ceremony. The students were not required to bow their heads or to otherwise directly participate in this prayer, but attending 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 activity is uniquely coercive, so government displays of religion that might be tolerable in other settings are not allowed within a public school.
“The undeniable fact,” Kennedy wrote, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”
As of right now, Lee remains good law, and so it is a powerful precedent cutting against Louisiana’s Ten Commandments law. But Lee was also a 5-4 decision, and Justice Antonin Scalia’s dissent rejected Kennedy’s suggestion that public schools have a special responsibility to avoid indoctrinating their students. Under Scalia’s approach, the Constitution is only violated when the government uses “force of law and threat of penalty” to coerce religious activity.
And the Court has only moved further to the right since four justices dissented in Lee.
Three reasons why this Court could uphold Louisiana’s law
Again, under the approach Justice Kennedy laid out in Lee, anyone challenging Louisiana’s Ten Commandments’ law has a very strong case. But there are three reasons to doubt that the Court’s current majority will follow Lee.
The first is that Scalia’s dissent was, well, written by Scalia, a conservative icon who many of the Court’s Republicans speak of in almost worshipful tones. Kennedy, meanwhile, was a more moderate conservative who often voted with the Court’s more liberal bloc in cases involving cultural issues such as abortion or gay rights. There are no Kennedy-style moderates on the current Supreme Court, and the Court has moved relentlessly in Scalia’s direction since Kennedy retired in 2018.
The second is that Justice Neil Gorsuch’s majority opinion in Bremerton cites favorably to Scalia’s Lee dissent, and it rather pointedly lifts language from that dissent.
Scalia’s Lee dissent, for example, claims that it is rooted in “historical practices and understandings,” a claim he justifies primarily by citing inaugural addresses by Presidents George Washington, Thomas Jefferson, and James Madison, which all endorsed religious viewpoints. Gorsuch’s Bremerton opinion, meanwhile, claims that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
More ominously for supporters of church-state separation, Bremerton cites Scalia’s Lee dissent twice, including one time to support the proposition that “members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.” Because Lee resolved the question of what qualifies as impermissible coercion, at least in the classroom context, there’s no reason to bring up this 30-year-old disagreement unless at least some of the justices believe that this question should be reopened.
The third reason to suspect that Louisiana’s Ten Commandments law will be upheld by this Supreme Court derives from the unusual liberties Gorsuch took with the facts of the Bremerton case. That case involved a public high school football coach who rather ostentatiously prayed at the 50-yard line after games, often while surrounded by students, parents, and spectators.
One reason we know that Kennedy’s prayers were very public is that Justice Sonia Sotomayor’s dissenting opinion includes pictures of Kennedy in a prayer circle with players, as community members and what appear to be members of the media with video cameras stand close by.
And yet, in his Bremerton majority opinion, Gorsuch appears to have just straight up lied about the facts of this case, claiming that the coach only wished to say a “short, private, personal prayer” — something that does not violate the Constitution’s Establishment Clause, even under the more expansive vision advanced by justices like O’Connor.
The fact that a majority of the Supreme Court would so blatantly misrepresent the facts of a case, even in the face of photographic evidence to the contrary, is an ominous sign for anyone seeking refuge behind the Establishment Clause. The Court’s Republican majority appeared so determined to rule in this coach’s favor that they made up alternative facts to justify doing so.
And now the same six justices who decided Bremerton appear destined to consider whether Louisiana can use its public schools to encourage young citizens to become Protestants.
