Documenting the Ten Commandments

The Louisiana law requiring the Ten Commandments (at least 11” x 14” in large and easy-to-read font) in every public school classroom will soon face a challenge in federal court; it wouldn’t surprise me if the lawsuit has already been filed. I think it’ll be a close call, and likely not more than 6-3 in either direction. The law’s authors anticipated this and, more than any legislation I’ve ever seen, the text itself includes arguments for the courts. Their major argument — and the reason the law includes permission (but not a requirement) to post other important historical documents like the Declaration of Independence and the Mayflower Compact — is that they’re posing the Ten Commandments as a reference to history rather than to religion. The authors reference a 2005 Supreme Court case in Van Orden v. Perry (Rick Perry being the governor of Texas at the time) about a sculpture of the Ten Commandments being placed on public lands around the state capitol amongst other monuments to history. By a 6-3 vote, the Court ruled in favor of the state and permitted the sculpture to remain, arguing that in its specific context it was reasonable to think of it as a historical monument rather than a religious one.

However, in his concurrence, liberal Justice Stephen Breyer (again, this was a concurrence, so he voted to allow the sculpture, which might surprise some) noted this: “This case … is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” He references two prior Supreme Court cases including Stone v. Graham, a 1980 case in which a 5-4 court ruled that Kentucky could not do what Louisiana is trying to do now.

Clearly the Supreme Court is very different in makeup today — and more solicitous of allowing religion in public life — than it was when Thurgood Marshall, John Paul Stevens, and William J. Brennan were on the bench. So the question will come down to whether today’s conservative justices, assuming the case gets to them, will be more interested in precedent or more interested in loosening prior Courts’ restrictions on the intersection of religion and government. If you made me bet on it, I’d bet that Louisiana loses 5-4 but I can just as easily imagine them winning 5-4 and, again, I very much doubt either side getting more than 6 votes.

READ MORE from Ross Kaminsky:

Missing the Target on Bump Stocks

Universities and the ‘Common Good’

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