On Wednesday, Louisiana’s Republican Gov. Jeff Landry approved legislation requiring every public school classroom in the state to display the Ten Commandments, becoming the first state to enact such a law. Signing the bill, Landry said: “This bill mandates the display of the Ten Commandments in every classroom, in public elementary, secondary, and post-education schools in the state of Louisiana. Because if you wanna respect the rule of law, you gotta start from the original law giver, which was Moses.”
On this week’s Amicus Plus bonus episode, Dahlia Lithwick was joined by Mark Joseph Stern to discuss why Louisiana passed a law that is so blatantly unconstitutional on its face. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Mark, do you have a quick hot take on how unconstitutional this is?
Mark Joseph Stern: So this is as unconstitutional as any law can be. Let’s start with some background.
In 1980, the Supreme Court struck down a pretty much identical law that required the posting of the Ten Commandments in every public school classroom in Kentucky in a decision called Stone v. Graham. More recently, in a decision called McCreary County, the Supreme Court blocked the public display of the Ten Commandments with an unmistakably religious purpose on public property—here, at a courthouse—and said this violates the separation of church and state enshrined in the establishment clause.
Jeff Landry knows that this law is unconstitutional. He has said, “Bring it on.” He’s ready for a lawsuit and to fight this all the way to the Supreme Court. His goal is to overturn these precedents and allow states like Louisiana to transform public school classrooms into spaces of Christian indoctrination for students who are just trying to get a good secular education.
It’s worth mentioning the fact that the proposed translation is the Protestant translation, so it’s not even nonsectarian sectarianism. It’s quite Protestant. This law seems to presuppose—in much the same way that we’ve seen lots and lots of cases presuppose—that something has been overturned that has not in fact been overturned. And in this case it is the endless zombie-walking Lemon test. Discuss.
The Lemon test was the basis for the Supreme Court striking down the identical law in 1980, but in Kennedy v. Bremerton in 2022, Justice Neil Gorsuch said that the Lemon test had long been “abandoned”—that even though the court had never formally overruled it, it had somehow, secretly, quietly been nixed at some point in the past. Louisiana’s Republican lawmakers are kind of clever to land on this issue, because the basis for those decisions has already been “abandoned,” or maybe kind of shoved into a closet that nobody wants to open anymore. And also because Louisiana is within the 5th U.S. Circuit Court of Appeals, and Republicans figure that the 5th Circuit has had no problem overruling other progressive precedent, and in fact has not acknowledged the existence of the establishment clause in quite some time.
So they think they’ll win in the lower courts and they want to push this to SCOTUS and get a much broader right to proselytize in schools. Let’s be clear, the Ten Commandments are the camel’s nose under the tent in order to bring school prayer; in order to bring overtly Christian activities during school hours, and on school premises; in order to let educators turn themselves into proselytizers and religious leaders during the school day, and try to compel more children into Christianity. That is the goal here, and it is barely even concealed by its proponents.
And sometimes the big swings happen in ways that surprise the court and embarrass them—that’s mifepristone, the decision that came down last week. Sometimes the big swings seem to be very much in response to a movement at the court itself; in this case, a yearslong chipping away and erosion of the establishment clause. So in a sense, Louisiana is just giving the court what it says it wanted: a basis from which to end Lemon and one more kick at the can to say that the establishment clause doesn’t mean what it says.
One way SCOTUS could kill the establishment clause is by denying anyone standing to challenge some kind of religious action sponsored by the government. Remember that in the mifepristone case, Justice Kavanaugh took a gratuitous swipe in order to further that agenda. He wrote about how the court has made it clear that “distress” or “disagreements” are not a basis for Article III standing. But in the establishment clause context, an “offended observer” typically gets standing to challenge some kind of religious display because they themselves feel wronged by it. By targeting this particular kind of standing for no real reason in the mifepristone case, Justice Kavanaugh was able to further erode that theory and make it harder for any future plaintiffs to bring such a claim.
I do think that this particular law, though clever in some ways, is also potentially dumb and doomed in others. It’s pretty clear to me that a teacher, say a Muslim teacher or a Buddhist teacher, or a Sikh teacher, who does not want the Ten Commandments in her classroom, would have standing to bring a lawsuit here. She’s not just an offended observer, she is being coerced into putting up a religious display in her own classroom. That seems several steps beyond the traditional “offended observer” standing, and this law stands a good chance of getting struck down. But I think what happens next is that the state says, “OK, we are just going to encourage schools to put up the Ten Commandments, or say that schools are allowed to put up the Ten Commandments.” Maybe it’s not in the classroom, maybe it’s as students walk in the door, maybe it’s in the gymnasium. I think the state writes a looser law and that becomes the vehicle to roll back some of the establishment clause precedent that bars religious indoctrination in school.
Coming soon to a theater near you, another Ten Commandments case in front of a brand new court.