The Louisiana Ten Commandments case in which a federal judge stopped a state law requiring public schools to post the religious document in all classrooms could test the boundaries of a 2022 Supreme Court decision on separation of church and state.
In Roake v. Brumley (2024), Judge John W. deGravelles, who had been appointed by President Barack Obama, issued a preliminary injunction on behalf of the U.S. District Court for the Middle District of Louisiana (No. 24-517-JWD-SDJ, 2024). Based on the First Amendment religion clauses, it enjoined a controversial law adopted earlier in the year by the Louisiana legislature and supported by the governor requiring the posting of the Ten Commandments in all public-school classrooms.
Darcy Roake, an ordained minister in the Unitarian Universalist Church, and other plaintiffs brought the case on behalf of themselves and their children, against Cade Brumley, the Louisiana State Superintendent of Education responsible for implementing the law.
Provisions of Louisiana’s Ten Commandments law
Relevant parts of the law had provided that:
No later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction. The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches. The text of the Ten Commandments shall be the central focus of the poster of framed document and shall be printed in a large, easily readable font.
The law further specified that the specific version of the Ten Commandments should be taken from the Protestant King James Bible. Although many who supported the law did so in hopes of conveying a religious message, the law noted that Commandment displays should be accompanied by a statement indicating that “the Ten Commandments were a prominent part of American public education for almost three centuries.” As proof, it cited The New England Primer, circa 1688, the McGuffey Readers from the early 1800s, and texts that Noah Webster had published.
Recent ambiguity over interpretation of establishment clause
The decision, the application of which has already been modified by a U.S. Circuit Court, could ultimately be decided by the U.S. Supreme Court. Even though the case comes from a U.S. district court, it is important because of the current ambiguity that surrounds the interpretation of the establishment clause of the First Amendment in light of the decision by Justice Neil Gorsuch in Kennedy v. Bremerton School District, 596 U.S. ____ (2022). In that case, the Supreme Court upheld the right of a high school coach to offer a prayer on the field after a football game and rejecting the long-established three-part Lemon Test.
The Lemon Test, adopted by the Supreme Court to ascertain establishment clause violations, had required laws to have a clear secular legislative purpose and a primary effect that neither advances nor inhibited religion, without promoting excessive entanglement between church and state. Gorsuch had also criticized the “endorsement test,” which had attempted to ascertain whether a reasonable observer would view laws dealing with religious expression as an endorsement of one or another religious view or practice.
Judge deGravelles’ decision charts a possible course that the U.S. Supreme Court may take as to how the Kennedy case affects decisions relative to:
- prayers in public schools;
- the decision in Stone v. Graham, 449 U.S. 39 (1980), in which the Supreme Court invalidated a similar display of the Ten Commandments in Kentucky schools; and
- other decisions relative to public monuments with religious messages.
Details of federal judge's decision in Louisiana case
Judge deGravelles issued his injunction against the posting of the Ten Commandments chiefly on his belief that the law violated the establishment clause of the First Amendment.
Citing a number of similarities between the Louisiana law and the Kentucky law that the Supreme court had invalidated in Stone v. Graham, the judge believed that, absent a contrary decision on the part of the Supreme Court, the Stone decision remained binding on him.
Citing Stone, he observed in particular that neither case represented a situation “in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” He further noted that both laws “single out the Decalogue for central display while declining to give preferential treatment to foundational documents like the U.S. Constitution, the Declaration of Independence, or the Magna Carta.”
Judge deGravelles argued that, even if Stone did not apply, the Louisiana law remained unconstitutional under the Kennedy decision. More particularly, he did not believe that the state had shown that there had been a historical pattern of posting the Ten Commandments in public school classrooms. The judge believed that the display at issue was:
- sectarian, because it specified a particular Protestant version of the Commandments;
- discriminatory, because Jewish, Unitarian Universalist, and atheist plaintiffs said it did not include their perspectives; and
- coercive, because children were required to attend schools, where the Commandments would be displayed.
In the course of his decision, Judge deGravelles decided that his court had subject-matter jurisdiction of the case. He also ruled that the case: was ripe for decision; involved a legitimate case or controversy with real-world consequences to plaintiffs, most of whom had standing; was one in which a court could provide judicial relief; was one in which courts should be particularly solicitous of First Amendment violations; and was one in which Superintendent Brumley and other state officials did not have sovereign immunity, which would have precluded suits against them to enjoin the law.
Judge examined decisions on religion in public schools, buildings
In addition to arguing that the decision in Stone v. Graham remained a viable precedent that had not been overturned by the decision in Kennedy v. Bremerton School District, the judge distinguished the Louisiana law from other cases.
These included:
- Van Orden v. Perry, 545 U.S. 677 (2005), which had involved a monument with the Ten Commandments in a public park;
- Town of Greece v. Galloway, 572 U.S. ____ (2014), which had upheld public prayers prior to a New York town meeting; and
- a variety of lower court decisions that had addressed the words “In God We Trust” in the pledge to the flag and other matters.
The court emphasized the public-school context of the Louisiana law and the fact that students were compelled to attend and therefore constituted something of a “captive audience.”
The court accepted the expert testimony that had been offered by Professor Steven K. Green, a professor of history and religious studies at Willamette University in Salem, Oregon, in disputing the argument that public schools had a long history of displaying the Ten commandments in classrooms. It also used the testimony of the law’s legislative supporters to show that many of them adopted the law for the specific purpose of inculcating religious principles and Judeo-Christian values.
Judge believed Louisiana law violated freedom of religion
Although this decision rested chiefly on the establishment clause of the First Amendment, the judge, citing the decision on Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 512 (1993), striking down laws that discriminated among religions, also believed that the Louisiana law violated the free exercise clause. He believed that the free exercise clause prohibits discrimination on the basis of religious belief, bans governmental actions undertaken for religious reasons, and requires religious neutrality.
The judge cited the decision in Wisconsin v. Yoder, 406 U.S. 205 (1972), which had permitted the Amish to educate their children in accordance with their religious beliefs. He argued that the mandated 10 Commandments displays interfered with parental rights to control the “religious upbringing and education of their minor children.”
The judge also observed that the Louisiana law had not been narrowly tailored to further education about the Ten Commandments. More tailored options for providing information about the 10 commandments would have included: “(1) posting the laws for a designated amount of time (i.e., days or hours) rather than every day, all year around; (2) displaying them only when the students reach a particular age . . .”; (3) using them in relevant circumstances (like social studies or world religions). . .”; or “(4) having one single display at school (Like the monument in Van Orden) rather than countless posters in every single classroom at the institution regardless of the subject taught.”
In responding to the state’s accusation that he was merely “repackaging” the establishment clause arguments, the judge cited the Kennedy decision to argue that the two religion clauses appeared together in the First Amendment, which would “suggest the Clauses have complementary purposes, not warring ones.”
As noted above, the issue may well be ultimately resolved by the U.S. Supreme Court. If it eventually hears the case, it will have to decide whether Judge deGravelles has correctly applied the recent Kennedy decision to the facts of the case or whether it believes that that case’s abandonment of the Lemon Test effectively overturned Stone v. Graham and similar precedents involving religious displays and religious exercises in public school classrooms.
In a two-to-one decision, the U.S. 5th Circuit Court of Appeals has ruled that the injunction applies only to the five school districts that have challenged the law and not to the 68 that have not.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.