LOUISIANA'S TEN COMMANDMENTS LAW CHALLENGES BAD SUPREME COURT PRECEDENT

National Review

 

Louisiana’s Ten Commandments Law Challenges Bad Supreme Court Precedent

By NATAN EHRENREICH

June 20, 2024 4:03 PM

 

On Wednesday, Louisiana governor Jeff Landry (R.) signed into law a bill requiring a poster of the Ten Commandments to be displayed in every public-school classroom in the state. For good reason, many see the development as a disruption of America’s status quo of separation of church and state. The Supreme Court ruled in 1980 that requiring displays of the Ten Commandments in public schools violates the establishment clause of the First Amendment. That’s precisely why Landry signed the bill — to challenge allegedly mistaken Supreme Court precedent. He’s not without reason to think that he might succeed. The Supreme Court, in its 2022 ruling in the Coach Kennedy case, turned toward a historical understanding of the establishment clause and discarded the “Lemon test,” which was the basis of the aforementioned 1980 decision in Stone v. Graham.

 

The governor said that he “can’t wait to be sued,” and already a group of nonprofits have promised to do so, claiming that “the law violates the separation of church and state and is blatantly unconstitutional.” They are correct, of course, that the law does violate the broad “separation of church and state” ethos that dominated establishment-clause jurisprudence in the latter half of the 20th century, but as I commented regarding Oklahoma’s bid last year to establish a religious charter school, there is something wrong with “importing a phrase coined by Thomas Jefferson in 1802, the ‘wall of separation between church and state,’ and first referenced in a Supreme Court decision no earlier than 1879, into the original meaning of the First Amendment.”

 

If we’re speaking strictly of the original understanding of the establishment clause, Professors Nathan Chapman and Michael McConnell (a former judge on the Tenth Circuit Court of Appeals) outline six characteristics of religious establishment in their book Agreeing to Disagree:

 

(1) control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on [other] worship; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.

 

Obviously, none of these describes the Louisiana law, and therefore it is not difficult to make a persuasive argument that the law should be upheld as a matter of first principle. It’s certainly not going to be that easy for the state. Lower courts will almost certainly strike down the law because of Supreme Court precedent, and Louisiana will then have to convince the justices to overturn a precedent in such a manner that would undoubtedly prove controversial. It will be fascinating to watch this legal battle play out, and its resolution may indicate what’s in store for a host of other bad 20th Supreme Court decisions that interpret the religion clauses.