Ten Commandments Displays in Public Schools
The Ten Commandments have long been understood as articulating central religious and moral duties accepted by almost everyone (at least until recently) in Western civilization. They are also considered a core foundation of Western jurisprudence. One would think even an ardent atheist wouldn’t object to students being exposed to, and perhaps taught about, this important text.
In June of 2024, Louisiana passed a law requiring poster-size displays of the Ten Commandments to be placed in all public school classrooms. The American Civil Liberties Union, Americans United for Separation of Church and State, and the Freedom From Religion Foundation complained that this practice violates the First Amendment’s Establishment Clause. Remarkably, in November of 2024, U.S. District Judge John deGravelles agreed.
Judge deGravelles’s opinion relied heavily upon a report and testimony provided by the plaintiff’s expert witness. In an amicus curia brief, Andrea Piocciotti-Bayer of the Conscience Project and I show there are numerous and serious problems with this expert’s report. But I’ll focus here on the most significant flaw in the judge’s reasoning — his reliance on Stone v. Graham, a 1980 case that declared a Kentucky law similar to Louisiana’s to be unconstitutional.
The First Amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the Free Exercise thereof…” The first phrase is referred to by scholars and jurists as the Establishment Clause. It was originally understood primarily to prohibit the creation of a national church, but in the case of Lemon v. Kurtzman (1971), justices devised a flawed, ahistorical test to interpret it. Appropriately enough, the test is referred to as the Lemon Test.
The Lemon Test permitted laws and policies that benefit religion if they 1) have a secular purpose; 2) do not have a “principal or primary effect” of advancing or inhibiting religion; and 3) do not foster “an excessive entanglement between government and religion.” Almost immediately, it became evident the test was unworkable. Justices used it to strike down and uphold a variety of very similar practices and, for the past 20 years, largely ignored it. A majority of justices formally repudiated the test in Kennedy v. Bremerton (2022).
Instead of relying on this analytical test, justices have instead turned to what America’s founders understood was prohibited by the Establishment Clause and looked at whether practices are, in Chief Justice Warren Burger’s words, “deeply embedded in the history and tradition of this country.”
Approximately 25 years after Stone v. Graham, the Supreme Court heard oral arguments in a case challenging the constitutionality of a massive granite monument of the Ten Commandments on the Texas State House grounds. Justices found the monument, which contains the same version of the Ten Commandments that will appear in Louisiana classrooms, to be constitutional.
More recently, justices considered the constitutionality of an “immense Latin cross” on public land in Bladensburg, Maryland. By a vote of 7-2, they held that it did not violate the First Amendment. Although the case involved a cross, Justice Samuel Alito observed in his majority opinion that:
“For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital.”
In the mid-20th century, E.J. Ruegemer, a Minnesota judge, became concerned with what he perceived to be the rise of juvenile delinquency in the United States. He believed that “if troubled youths were exposed to one of mankind’s earliest and long-lasting codes of conduct, those youths might be less inclined to break the law.” He formed a committee “consisting of fellow judges, lawyers, various city officials, and clergy of several faiths” to develop a “version of the Ten Commandments, which was not identifiable to any particular religious group.”
Ruegemer eventually partnered with Cecil B. DeMille and the Fraternal Order of Eagles to help place granite monuments inscribed with the Ten Commandments throughout the United States. Many of these monuments were placed on public property, including the Texas State House grounds. At least 106 of them are still standing.
There is a long history and tradition of displaying the Ten Commandments on public property, but there is an even longer history and tradition of students being taught about them. For instance, they are featured in early American textbooks including The New England Primer, McGuffey’s Readers, and Noah Webster’s The America Spelling Book.
Even at the height of its separationist jurisprudence, the Supreme Court held that it is appropriate to teach about religion in public schools. If so, and if massive crosses and monuments of the Ten Commandments on public property are constitutional, surely smaller and passive displays of the Ten Commandments on schoolhouse walls are as well. Simply put, Stone v. Graham is no longer good law, and it would be shocking if Judge deGravelles’s opinion is not overruled upon appeal.
