In its 2022 landmark decision in Kennedy v. Bremerton, the U.S. Supreme Court officially buried the long-criticized Lemon Test that ostensibly framed Establishment Clause jurisprudence. The three-part test had held that government policy must have a secular purpose, must neither primarily advance nor inhibit religion, and must not create an “excessive entanglement” with religion. In Bremerton, the court held that, going forward, the Establishment Clause of the First Amendment must instead be interpreted in light of “historical practices and understandings.” The court left the contours of this new “history and tradition” test unresolved. Now, a Louisiana law requiring that the Decalogue be posted in publicly funded schools will offer courts and, more than likely, the Supreme Court, the opportunity to determine the test’s meaning.
In June 2024, Louisiana passed a law requiring all K–12 public and charter schools and state-funded universities to display a poster of the Ten Commandments in their classrooms. To foreclose compliance with the letter but not spirit of the law, the legislature required that each display be at least 11 by 14 inches, with the Ten Commandments “printed in a large, easily readable font.”
Based on one bellwether of establishment opinion, the New York Times, Louisiana’s law signals an incipient theocracy in America. Since Louisiana Governor Jeff Landry signed the law, nearly a dozen articles and op-eds in the Gray Lady have addressed it, most assuming its unconstitutionality. For instance, Times columnist Pamela Paul wrote that it was obviously an attempt to “formalize precepts of Christian nationalism,” and Charles Blow opined that, with this law and other recent legislation, Louisiana officials “are stifling freedoms and tilting toward Christian nationalism.” You start with posters of the Ten Commandments and pretty soon, it seems, you’ll have revival services and altar calls.
The law’s defenders see things differently. For them, the statute reinforces the importance of the Ten Commandments in America’s education history, and it includes several provisions intended to protect it from the inevitable legal challenges. Landry, in fact, has said that he “can’t wait to be sued.” The law mandates using the same version of the Ten Commandments displayed on a monument on the grounds of the Texas statehouse that the Supreme Court upheld in Van Orden v. Perry in 2005. It also stipulates that the displays should only be paid for with donated funds, not taxes. The displays are required to include a “context statement” that explains the significance of the Ten Commandments in the history of education in America, emphasizing their pedagogical rather than religious purpose. The statement discusses how the Ten Commandments were used in the New England Primer from 1688, the McGuffey Readers from the early 1800s, and Noah Webster’s textbook The American Spelling Book. The act also allows schools to include displays of the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance.
Five days after Louisiana passed its law, several organizations and individuals banded together to file litigation challenging it. In Roake v. Brumley, the American Civil Liberties Union, Americans United for Separation of Church and State, and the Freedom From Religion Foundation sued on behalf of Unitarian, Christian, Jewish, and atheist plaintiffs, including several with school-age children.
