The founders of the American democracy firmly believed in the separation of church and state. A section of the First Amendment to the U.S. Constitution, known as the Establishment Clause, reflects this goal. It prohibits the government from making a law “respecting an establishment of religion.” As courts have interpreted it over time, the Establishment Clause does more than bar the creation of a state-sponsored church. It prohibits the government from favoring a particular religion over another, or from favoring religion over non-religion more generally.
A law enacted last year in Louisiana, HB 71, tests the boundaries between church and state. It requires public schools to permanently display a state-approved version of the Ten Commandments in every classroom. Parents in several school districts promptly sued in federal court. Last November, a trial court judge found HB 71 unconstitutional, and the U.S. Court of Appeals for the Fifth Circuit agreed on Friday.
The Fifth Circuit explained that a 1980 U.S. Supreme Court decision controlled the outcome. This case, Stone v. Graham, struck down a Kentucky law that similarly required public schools to post copies of the Ten Commandments in classrooms. The Fifth Circuit found that Stone remains a valid, binding precedent despite its reliance on an outdated test for Establishment Clause violations. The court also rejected Louisiana’s alternative argument that HB 71 diverges enough from the Kentucky law to fall outside the orbit of Stone.
The state pointed to a section of the law that allows public schools to display certain secular historical documents like the Declaration of Independence along with the Ten Commandments. This isn’t required, though, while the Ten Commandments display is. Thus, the Fifth Circuit found that a display that meets the minimum requirements of HB 71 is essentially identical to the displays envisioned by the Kentucky law. After reviewing the text of HB 71 and its legislative history, moreover, the Fifth Circuit rejected the “secular historical and educational purpose” that Louisiana cited in support of its law. The court found that this alleged purpose merely masked the law’s religious objective.
HB 71 might eventually end up before the U.S. Supreme Court, where a conservative majority could overturn or limit Stone and adjust the application of the Establishment Clause in this setting. This could affect not only Louisiana but also other states charting a parallel course. For example, Arkansas recently passed a law that requires a Ten Commandments display in classrooms. The Texas legislature has sent a similar bill to Governor Greg Abbott, who has promised to sign it.
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