How will Supreme Court Justices uphold mandatory school posting of the Ten Commandments?

It seems a near certainty that there will issue from the Supreme Court an opinion that the State of Louisiana did not run afoul of the First Amendment of the US Constitution in ordering that a specific Ten Commandment text be prominently displayed in every public school in the state from kindergarten through university. There is room for hope that it will be a dissenting opinion, although recent Court behavior shrinks that room. Any opinion upholding the Louisiana Ten Commandments mandate will conflict dramatically with well-established First Amendment precedents. What could it look like?

 It's Not a Religious Mandate but a History Mandate

This line of argument would not require overturning as many or as important precedents as other lines of attack, but at the price of staggering intellectual dishonesty.

No Religious Purpose

I start with the crucial, but absurd, claim minimizing the religious character of the mandatory Ten Commandments posting. It is true that Louisiana’s mandated text does not appear in exactly that form in any translation of any holy book, not in the Torah, the Bible, the Quran, the Book of Mormon, or any other. It is, however, based very closely, mostly word for word, on the Protestant King James Translation of Exodus 20: 2-17.  (Deuteronomy 5: 6-21 is very similar, but, where they differ, the Louisiana mandate goes with Exodus.)

The Louisiana Ten Commandments text does, however, exactly follow one earlier text, that on a monument in the Texas Capitol campus, which monument was declared not unconstitutional by the Supreme Court in Van Orden v. Perry, 545 U.S. 677 (2005). Likely Louisiana’s choice of wording for its required school Ten Commandments might have been a little different but for the existence of the Van Orden precedent. Clearly, this is attempted coattailing. Expect to find in every brief submitted by Louisiana, “the Supreme Court has already found constitutional the exact language of our classroom posters.” Van Orden, of course, was a radically different case. Among other differences, no one was required to go over to look at the Texas monument, let alone a captive audience of school children.

In any event, though originally authored by the Texas Fraternal Order of Eagles, it was the Louisiana Legislature and Governor that turned the language into a statutory mandate. So, that is where the responsibility lies for the Ten Commandments as they will appear in every Louisiana public classroom from kindergarten through postgraduate programs.

The Eagles-Texas-Louisiana version removes some religious content from the Exodus text. Here is the mandated text in red with the omitted Exodus language in black. (Initial superscript is the Exodus verse number.)

¹And God spake all these words, saying .

² I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage.

³ Thou shalt have no other gods before me.

⁴ Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.

⁵ Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me;

⁶ And shewing mercy unto thousands of them that love me, and keep my commandments.

⁷ Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain.

⁸ Remember the sabbath day, to keep it holy.

⁹ Six days shalt thou labor, and do all thy work:

¹⁰ But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:

¹¹ For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the Lord blessed the sabbath day, and hallowed it.

¹² Honor thy father and thy mother: that thy days may be long upon the land which the Lord thy God giveth thee.

¹³ Thou shalt not kill.

¹⁴ Thou shalt not commit adultery.

¹⁵ Thou shalt not steal.

¹⁶ Thou shalt not bear false witness against thy neighbor.

¹⁷ Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle [Exodus here has “nor his ox, nor his ass” instead of “nor his cattle”] nor any thing that is thy neighbor’s.

Louisiana excludes verse 1’s express statement that all was spoken by God. This amounts to nothing, however, as it is perfectly clear from Louisiana’s adoption of Exodus verses 2 and 3, as well as from the legislative history, that what the Louisiana students will be reading is authoritatively understood to be the word of God. 

That God is a jealous God is cut. (Exodus verse 5) Perhaps the Eagles thought that might make God seem a little petty. Also excluded is the punishing of idolaters down to the fourth generation.(5)  If they were giving it any thought beyond “It’s the Van Orden language” the Louisiana legislators might have had some concern that a sixth grader would ask: “Would it be fair for God to punish me for the sins of my great grandfather?” 

Interestingly, this sort of exclusion of what might be regarded as unnecessary and potentially embarrassing dogma does not extend to the parental honor commandment. (12).  Parallel to the succinctness of the commandments that follow, it could well have been left “Honor thy father and thy mother,” but instead Exodus was followed in appending a promise (or backhanded threat) “that thy days may be long upon the land which the Lord thy God giveth thee.” 

Why was the pronouncement that the land was a divine gift included? The scholarly reading is that it was intended for the specific first addressees of the commandments, Moses and his fellow wanderers. Perhaps the legislators, along with the Eagles, thought that there was a nice parallel between the lands that God wrested from the Canaanites and the land that the US wrested from the native Americans. Then again, with less chauvinism but more religious sweep, the legislature may have intended Louisiana students to believe that all the Earth was the gift of God to humanity.

For an unequivocal answer to the traditional Establishment Clause question (though not that of Van Orden) whether the classroom Commandments constitute an endorsement of religion we need look no farther than its first two items:

 I AM the LORD thy God. (2)

                Thou shalt have no other gods before me. (3)

(The upper case “AM” adds an emphasis that I have not found in other instances of the King James translation of either the Exodus or the Deuteronomy versions of the commandment. It is almost as if it was thought that the King James Bible was not being strong enough in its assertion of the existence and lordship of God.)

Notice that the first “Commandment” is a declarative, not an imperative, not a commandment at all. It is undisguised religious dogma, an article of faith. Taken together with the second line, it is easy to infer to: “You shall have me as your God and no other.”

There is simply no honest reading on which the schoolhouse Commandments are not an endorsement of religion. It hardly needs saying that the legislative history supports the conclusion that the Louisiana Ten Commandments are essentially religious and that it was a religious purpose that made them mandatory. State Representative Dodie Horton, the sponsor of the Act explains that it allows for “our children to look up and see what God says is right and what he says is wrong,”

Not entirely unconscious of the First Amendment, Horton contends: “It doesn’t preach a certain religion, but it definitely shows what a moral code we all should live by is.” It apparently, is not worth mentioning that the code “we should all live by” also happens to include recognition that “I AM the Lord thy God” (2) and that specifically religious conduct is mandated: that the seventh day is to be “kept holy” (8) and graven image avoidance. (4)

That “thou shall have no other gods before me” (3) may have been intended at the time to embrace at least the possibility that other nations had their own, albeit inferior, deities. When little Jimmy asks the teacher about these “other gods,” we may, however, expect: “There aren’t really any other gods, Jimmy, but God knew that there were some people who still worshiped false gods.” I expect that the Louisiana legislature would take this response as evidence for a teacher of the year award. I will not pursue how the teacher might answer Jimmy’s next question, “How do we know there aren’t other gods?” I do wish I could be a fly on the wall when a first-grade teacher explains what adultery (14) is.

The School Commandments may not preach a particular religion, but they certainly are uniquely congenial to a particular family of religions, those that are revealed, monotheistic, worship weekly, eschew graven images, and decree their specific moral code for their adherents.

There have been a few bad faith attempts to encourage the media to ignore the mandated Commandments explicitly religious first half. When Louisiana Attorney General Liz Murrill, announced her eagerness to defend the law, she skipped right past the text’s leading ideas: “The 10 Commandments are pretty simple (don’t kill, steal, cheat on your wife) . . .”  (post on X). We can expect Louisiana’s legal briefing, whether penned by Murrill or one of her assistants, to use a slightly more sophisticated version of this same ploy. “Yes, there is a religious preface, but what is really important is that the Ten Commandments “also are important to our country’s foundations.” (same X post) That leads directly to the next claim: the commandments should be displayed because of their historical importance to the Republic and to Louisiana.

 

The historical purpose

The need for a “They’re really history” was anticipated by the Louisiana legislature:

RS 25:1283 - Context of public display

Public displays set forth in R.S. 25:1282(B), (C), (D), and (E) shall be accompanied by a document entitled "Context for Acknowledging America's Religious History" which shall read as follows:

(1) Some documents stand out as pivotal in the religious history of America and Louisiana's legal system, among which are the Mayflower Compact, The Declaration of Independence as a legal foundation for the United States Constitution, the Ten Commandments as one of the foundations of our legal system, and the Northwest Ordinance, which was a primary document affirming faith and the first congressional act legally prohibiting slavery.  It is hoped that their study and relation to each other and the history of our state and nation will foster an appreciation for the role that religion has played in the legal history of America and the state of Louisiana and prompt further public study.

(2) American law, constitutionalism, and political theory have deep roots in religion. American ideals about liberty, freedom, equality, legal responsibility and codes of law, to mention a few, have roots and underpinnings in religion and biblical literacy. The Ten Commandments, which are found in the Book of Exodus in the Old Testament of the Bible, was one of the earliest written expressions of law to be incorporated in American legal systems. The Ten Commandments, or the law of nature, also impacted the Declaration of Independence which refers to the "laws of nature and of Nature's God."

I cannot but comment briefly on the context document’s characterization of the Northwest Ordinance as “a primary document affirming faith and the first congressional act legally prohibiting slavery.”  It did prohibit slavery in the territory. It also recognized the legal right of slaveholders to their escaped slaves and authorized their return to slavery. As to its “affirming faith,” it did no such thing. It provided for freedom of conscience and, by implication, for some religious instruction. Among its 3,300 words, this was the religious content:

Sec. 14, Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

Sec 14. Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

Although clearly intended to give an historical purpose cover to the mandatory text, both its title and the first line of this required context document, assume that the role of religion in history has a special place, presumably more important for understanding history than such factors as those that are merely political, economic, geographic, diplomatic, . . . Does religion really contribute more than any of the non-mandated documents towards an understanding of the history of Louisiana and the United States?

Let me concede, arguendo,  the unique importance of history. One might yet have thought that history of the original inhabitants, of slavery, of Spanish and French colonialism, and of the Napoleonic Code would be especially saliant in understanding the history of Louisiana. None of these, however, is apparently  important enough to receive mention for possible classroom display. "Public displays with acknowledged religious history may include . . . The Mayflower Compact, . . .  The Ten Commandments as extracted from the Bible, . . . The Declaration of Independence, . . Articles I through VI of the Northwest Ordinance. 

Alone, religious history has that status, and of the history of religion it is only the Ten Commandments and its context document that are mandate-worthy. The Declaration of Independence, Mayflower Compact, and Northwest Ordinance get only honerable mention. The First Amendment does not even rate that.

The mandatory “context document” is itself an exercise in raw historical revisionism. The attempt to tie the Commandments into founding era documents is bogus. There is no mention of the 10 Commandments in the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, or the Constitution and presumably the legislators were unable to find mention of the Commandments in any accounts of the debates of the bodies that authored and voted for them: the Continental Congress, Confederation Congress, Constitutional Convention, or United States Congress.

The closest the context document comes to linking the Ten Commandments to foundational documents is the unevidenced appositional identification “The Ten Commandments, or the law of nature” as the latter phrase appears in the Declaration of Independence, “the laws of nature and of Nature’s God.”

It is a curiously weak linkage. Of the four references to God in the Declaration “the laws of nature and of Nature’s God” is the one most clearly in sync with the beliefs and religious language of the deist members of the Continental Congress. “Nature’s God” was a favorite way for deists to refer to God. The deists did not believe in revealed religion, of which the Ten Commandments are a paradigm example. For deists the existence and nature of God were to be read from nature. They might accept some moral principles found in the Ten Commandments, or, more warmly, those of the Sermon on the Mount, not because of their status as scripture, but because they harmonized with dictates of their own moral consciences, that is to say with their own understanding of the laws of nature.

If the legislators really wanted to “foster an appreciation for the role that religion has played in the legal history of America and the state of Louisiana” why not any quotation from the US Constitution, its Preamble, its “no religious test” clause, its affirmation option for the taking of its oaths of office, or, crucially, the establishment and free exercise clauses of its First Amendment?  For that matter, why not the establishment and free exercise cclauses of the Louisiana Constitution, Article I, Section 8? Aren’t these “pivotal in the religious history of America and Louisiana's legal system”?

The first Louisiana constitution decreed that no “clergyman, priest or teacher of any religious persuasion, society or sect shall be eligible to the general assembly, or to any office of profit or trust under this State.” The Louisiana framers, it appears, were more suspicious of the participation of religious leaders in the government than are current state politicians. Isn’t that of some significance for the historical relation of religion to the Louisiana polity? Were the framers of the 1825 constitution too woke?

The whole idea that the Ten Commandments had a formative influence on US or Louisiana law is just silly. Ancient legal codes can, of course, be claimed to have had some influence on US and Louisiana law in a scholarly understanding of “influence.” As ancient writings go, however, the Ten Commandments don’t qualify as a code. Compare, for example, the system, detail, and penalty provisions of the probably much older Code of Hammurabi and the older still Code of Ur-Nammu. With those much codier codes in view, the Ten Commandments can hardly be taken as the inspiration for the idea of legal codification.

Roman law, especially after Justinian, was highly systematized and was the direct ancestor of the Napoleonic Code (French Civil Code of 1804). The Napoleonic Code was also strongly influenced by the Declaration of the Rights of Man and of the Citizen, a product of the rationalism of the French Revolution. Gone were the old religious crimes: sacrilege, blasphemy, and adultery. The Napoleonic Code was the law of the Spanish and French precursors to the State of Louisiana and survives in the state’s civil law, especially in contracts and torts. The Ten Commandments do not appear in and had no influence on Roman Law, Napoleonic Law, or the civil law of Louisiana.

The old Germanic, “Saxon law” developed into the common law of England, with influence, again, from Roman law via the Normans. This was the precursor of US law, of the law of all the states except Louisiana, and even of much Louisiana law, particularly that state’s criminal law.

When it comes to criminal law, it is striking that only three of the Ten Commandments are or have ever been Louisiana crimes: murder, theft, and bearing false witness. The latter is criminal only in the instance of sworn or affirmation perjury.  Adultery is still a crime in several US states, although rarely prosecuted. It has never been a crime in Louisiana. Nor has the keeping of graven images.

The Ten Commandments are simply unimportant in the development of criminal law. Murder and theft are undeniably crimes and have been always and everywhere. Even that oldest of all known codes, that of Ur-Nammu, sets out penalties for murder and robbery. We do not need to refer to the Ten Commandments for murder and theft.

One of the most common of all offenses, again long criminalized everywhere, is non-lethal assault. Its absence from the Ten Commandments is good evidence of how little that passage of Exodus influenced the history of law.

On this, I can give some personal testimony. I taught criminal law for several years. The Ten Commandments never came up in class and I do not recall any mention of them in any of the hundreds of cases or the many treatises I read. Though the son of a Protestant pastor, it never occurred to me to mention the Ten Commandments in any of the classes I taught or the articles I wrote.  In the law school I attended, I am confident that, if the Commandments were mentioned at all, it was in reference to the then still undecided Ten Commandment display case Stone v. Graham, 449 US 39 (1980) (Required posting of Ten Commandments in Kentucky public schools found unconstitutional.)

The Ten Commandments are not significant for the legal history of the United States or the State of Louisiana. The claim that history is the purpose behind mandating their display in every public classroom is disingenuous.

 

Endorsing Religious Doctrine is Not an Establishment of Religion

This bold argument runs that the establishment clause, properly read, prohibits very little. The clause would not make mandated posting of the Ten Commandments unconstitutional even were its sole purpose the endorsement of the propositions that religious truth is revealed through scripture, that there is one deity, that there is an obligation to observe weekly a day of rest and worship and to avoid graven images. These, I suspect, are propositions that would garner a solid majority in both chambers if put to the vote in the Louisiana legislature. That may well be exactly what the legislators thought they had done.

English Establishment

The first look argument runs as follows. As of the date of the ratification of the First Amendment, “establishment of religion” meant the relation of religion to the state found in England from which colonial power the United States had so recently successfully rebelled.

Establishment in England in the reign of George III: the King was Supreme Governor of the church; he appointed the Archbishop of Canterbury; 26 Bishops sat in House of Lords (out of 50 some); Parliament legislated scripture (King James Bible), liturgy (Book of Common Prayer), theology (Thirty-nine Articles of Faith); funding of church was in good part out of taxes. If this is what it is for “establishment,” then clearly Louisiana’s mandating of the Ten Commandments would not be nearly enough to run afoul of the clause.

In fact, the relation of the Crown to the Church of England in the late 18^th century was an outlier among what fluent speakers of American English called “established churches.” Even the established Church of Scotland had considerably looser ties to the Crown than did the Church of England. Among the members of the US Congress and the ratifying bodies in the states, there were many Scot natives and their children, who would have known this well. More important, several states were said to have “established churches” during this historical period.

Establishment in the states

The use of “establishment” in American English of the time did not rely entirely on institutions of the British Islands. As of 1776, Maryland, North Carolina, Georgia, Virginia, South Carolina, New Hampshire, Connecticut, and Massachusetts were said to have established churches. Those of New England were Congregational; the others were Church of England (Anglican.) As of the date of ratification of the First Amendment, the Congregational states and South Carolina were still regarded as having an established religion.

It's worth a close look at just what arrangements were enough to be called “establishment.” Consider Massachusetts. Tax monies for clergy or religious teachers were to be apportioned not to a single state decreed church, but, where possible, in accordance with the particular, local religious convictions of those taxed. Moreover, by Massachusetts law “no subordination of any [Christian] sect or denomination to another shall ever be established by law.” So, to be said to have “establishment” in 1791, a state need not have its governor as the head of the church, nor need it appoint officials of any church, nor establish doctrine. All that was necessary was that some tax money should go to precinct teachers who included religious instruction as part of the school curriculum. Massachusetts did not mandate that scripture be posted in its classrooms.

Classroom walls of Louisiana schools are paid for by tax money. Tax-paid teachers will be responsible for their posting and for answering any questions or responding to any criticisms of the Ten Commandments and its mandated context document. Will no college students have criticisms; for that matter, will no fourth graders have questions?

Looking past the fact that the King James Ten Commandments are a Protestant translation, Louisiana has liberalized the old Massachusetts Christian favoritism to a Judeo-Christian favoritism. Most speakers of American revolutionary era English would, I think it is reasonably clear, have regarded the Louisiana Ten Commandments mandate as an establishment of religion.

Precedent

The Louisiana scripture mandate is in conflict with years of establishment clause jurisprudence including one indistinguishable Supreme Court case.  Stone v. Graham, 449 U.S. 39 (1980), held that the mandated posting of the Ten Commandments in Kentucky public classrooms was unconstitutional. This holding was not weakened by the Van Orden case, which upheld the “passive” presence of a Ten Commandment monument on the Texas capitol grounds. 

In short, the radical contention is flatly wrong that it is consonant with the meaning of the establishment clause for public schools to inculcate  “Judeo-Christian” doctrine. To declare the Louisiana Ten Commandments mandate constitutional would also require overthrowing much well-established precedent. That is, unfortunately, not to say that it is unthinkable that this Court would do so.

The Establishment Clause was Wrongly Incorporated Against the States

Since Gitlow v. New York, 268 U.S. 652 (1925), the Court has held that the Due Process Clause of the 14^th Amendment applies some of the rights of the first eight amendments of the Constitution to protect fundamental rights against infringement by the states. Before Gitlow the Bill of Rights was understood to protect only against federal government actions. The Establishment Clause was held to be one of the fundamental rights “incorporated” against the states in Everson v. Board. of Education., 330 U.S. 1 (1947).

Though the incorporation doctrine is well established and central to many Supreme Court holdings, it has suffered some scholarly criticism. On the Court, Justice Thomas has stated   that whatever incorporation of the Bill of Rights there is to be should be via the Fourteenth Amendment’s Privileges and Immunities Clause not its Due Process Clause.

Until the presidential immunity decision, I would have thought the Chief Justice’s concern for the Court’s appearance of legitimacy would lead him to avoid yet another foray against a line of well-established precedent. Now, I tend to think that the only really important protection that incorporation doctrine has it enjoys because it was the mechanism the Court used to impose its radical interpretation of the Second Amendment upon the states. It is for that reason that it is unlikely that the all the other conservative activists on the Court will join Justice Thomas in voting to disincorporate the Establishment Clause.

Were as many as four to do so. The dissents would no doubt seek to embarrass such a majority over its removing the states from establishment Clause obligations while leaving those of the Free Exercise Clause in place. Both the First Amendment text and the precedents link those clauses as parts of a single fair neutrality idea. However, the Free Exercise incorporation question could easily be left to another day, a day that might be slow in coming. Moreover, it is not so clear that the Court’s majority or its Chief Justice is so concerned about embarrassment as it once was.

Conclusion

All things considered, it is more likely than not that the Court will find it is not violative of the Establishment Clause for Louisiana to mandate the posting on classroom walls of a  scriptural endorsement of monotheistic, sabbath observing, idol rejecting, morality dictating religion. The most likely strategy for a majority opinion will be to combine acceptance of much of Louisiana’s disingenuous description of its mandate as historical not religious with a weakening of the traditional concept of establishment. These can be rounded together so that each argument tends to obscure the weaknesses of the other. Precedents will have to be overruled explicitly or by implication, but that is little deterrence to this Court’s arriving at the “right result.” Rejection of the incorporation of the Establishment Clause against the states via the Fourteenth Amendment Due Process Clause, will probably only find its way into a concurrence.