Judges scrutinize Louisiana’s Ten Commandments mandate

A federal appeals court last week weighed whether to reinstate a Louisiana state law requiring public school classrooms to display the Ten Commandments.

Signed by Gov. Jeff Landry last summer, the law was set to take effect on Jan. 1. Instead, courts put it on hold during a six-month-long legal battle over its constitutionality. The American Civil Liberties Union (ACLU) has argued that the law violates First Amendment rights.

The law requires every public school classroom to post a framed display of a state-approved version of the Ten Commandments at least 11 by 14 inches in size with “large, easily readable font.” The displays must include a statement about the commandments’ historic role in shaping American education.

Five days after the regulation passed, the ACLU filed a lawsuit against Louisiana in federal court claiming the law violates the First Amendment’s establishment clause, which prevents the government from favoring or endorsing a religion. The ACLU said the requirement would breach the separation of church and state and impose religious beliefs on children.

The state asserts that because the commandments are part of American history, displaying them does not violate the constitution. Louisiana points out that other educational materials have featured the commandments for generations.

Additionally, schools have flexibility in how they display the commandments. They can hang them alongside other historic documents such as the Declaration of Independence.

In November, U.S. District Judge John deGravelles sided with the ACLU and issued a ruling that temporarily barred the law from going into effect. In his 177-page opinion, he found the law unconstitutional in all circumstances.

Louisiana appealed the ruling to the 5th Circuit that same month. Last week, a panel of three judges from the appeals court probed both sides with questions.

Opening the arguments, Louisiana Solicitor General J. Benjamin Aguiñaga contended the case is premature because the law has not taken effect and has not harmed any students. He also said the exact appearance and placements of the displays are still undetermined.

“You don’t have the facts before you to actually answer the question ‘What is the context of the display?’” Aguiñaga said. “In fact, because the plaintiffs jumped the gun here and filed an unripe case, no court in this litigation will ever have that important context.”

Judge Catharina Haynes asked Aguiñaga the intended purpose of the law. Aguiñaga pushed back against the question, stating that it’s not necessary to know its purpose to see the case lacks standing.

Haynes disagreed, stating the purpose of a law is necessary to know if it actually harms someone.

Representing the ACLU, Jonathan K. Youngwood claimed that the display imposes religious beliefs on students by being “constant” and“unavoidable” in every one of their classrooms.

“You’re going to that room and other rooms 177 days a year, and you may not see it the first day,” Youngwood said. “You will see it by the end of the year. And if you don’t see it in your science classroom, you’re going to see it in your English classroom, and you’re going to remember that for every year you were a student in the Louisiana schools, it was the constant.”

Youngwood said the commandments have a place in society but not a place in public schools. He argued that state legislators have said publicly that the law was religiously motivated.

Haynes replied, “And that’s why I asked [Aguiñaga] because he was trying to pull from that and act like, ‘Oh, it has nothing to do with religion.’ Well, it clearly does and isn’t that where the First Amendment is violated.”

Overall, the judges asked tough questions of both sides, said Joe Davis, an attorney with Becket Fund for Religious Liberty, which represents Louisiana. He said they questioned whether they could evaluate the constitutionality of the displays when they have yet to be put up.

“That was one of the things the judges were really interested in, they were asking, ‘Are we even sure the students are going to see the commandments unless they seek them out?’” Davis said. “It’s an important issue. It’s not a technicality. We want judges to be deciding cases based on real and concrete facts.”

Davis said he expected the 5th Circuit panel to rule in the next three to six months. He added that the judges could apply Supreme Court precedent to uphold the law. In 1980, the court found that a similar law in Kentucky violated First Amendment rights, but the court’s makeup and First Amendment law has changed since then, he said.

In Kentucky’s case, the Supreme Court utilized the Lemon test to evaluate whether the law violated the Establishment Clause, he said. The three-pronged test, which the court established in 1971, was more complicated and generally less favorable toward religion in public spaces. The court abandoned this test in its 2022 case, Kennedy v. Bremerton School District, and now looks to history and tradition to determine if religious displays or symbols violate the First Amendment.

Religious symbolism has long been displayed by the American government, Davis added. The Supreme Court’s building even has a sculpture of Moses holding the Ten Commandments.

While the Supreme Court has determined in multiple cases that it is constitutional to display the commandments on statehouse grounds, this law’s involvement in public schools makes it different, said Mark Hall, a professor at Regent University who co-wrote a friend-of-the-court brief for Louisiana.

Courts are particularly vigilant when it comes to how laws affect public schools, Hall said. Teachers can’t have a religious influence on students by doing things such as leading prayer or reading Scripture over the intercom.

“We are talking about young school children who are particularly impressionable, and they might think that the school is endorsing one religion above all others,” Hall said. “It is conceivable that the court would say, well, public schools are just a different context.”