The Ten Commandments in Public Schools: Why a Louisiana Law Violates the Establishment Clause

by Erin Gray, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

On June 19, 2024, Louisiana Governor Jeff Landry signed House Bill 71 (“the Act”) into law.[1] The Act requires a display of the Ten Commandments in every public school classroom in the state.[2] The Act’s requirements apply to elementary, secondary, charter, and post-secondary schools.[3] In Roake v. Brumley, Plaintiffs challenged the constitutionality of the Act and filed a complaint for declaratory and injunctive relief in the United States District Court for the Middle District of Louisiana (“District Court”).[4] The Plaintiffs consisted of parents and children in the Louisiana public school system who alleged the Act violated the Establishment Clause of the United States Constitution and imposed “distinct religious norms on Louisiana public-school children.”[5] On November 12, 2024, the District Court granted the Plaintiffs’ Motion for Preliminary Injunction, finding the law to be facially unconstitutional and unconstitutional in all applications.[6] Since a preliminary injunction is only a temporary solution, the District Court must still decide whether to completely strike down the Act permanently.  

This article will discuss the constitutionality of the Act under the Establishment Clause of the First Amendment. Part II examines the case law the District Court may consider when deciding whether to grant a permanent injunction and examines the Plaintiffs’ arguments and the Act. Part III analyzes the Act under Supreme Court precedent and argues that the Act is unconstitutional under the Establishment Clause. Lastly, Part V summarizes the arguments and considers the future implications of the District Court’s potential ruling.

II. Background

A. Supreme Court Precedent

The United States Constitution states that “Congress shall make no law respecting an establishment of religion.”[7] In Lemon v. Kurtz, the Supreme Court held that state laws providing aid to religious-affiliated schools were unconstitutional.[8] To determine whether a law is constitutional under the Establishment Clause, the law must have a secular purpose, its primary effect must be one that neither advances nor inhibits religion, and the law must not foster excessive government entanglement with religion.[9] In Lemon, the Supreme Court found that state governments would have to monitor religious schools to ensure the government aid went to non-secular purposes.[10] As a result, the state governments would become too involved in religious activity, fostering excessive entanglement between religious institutions and the state.[11]

In Stone v. Graham, the Supreme Court determined a Kentucky law requiring public schools to post the  Ten Commandments in all public school classrooms violated the Establishment Clause.[12] The law required that “a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth.”[13] Additionally, the statute required that the display be sixteen inches wide and twenty inches high.[14] Directly below the Ten Commandments, the statute mandated the following excerpt to be displayed – “[t]he secular application of the Ten Commandments is seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”[15]

In justifying the law in Stone, the state argued that the statute served a secular purpose in educating children on the importance of the Ten Commandments in American history, which is reflected in the small caption the schools must display by the Ten Commandments.[16] However, the Supreme Court, applying the Lemon Test, rejected this argument and found that posting religious text on the walls of classrooms serves no educational function.[17] To serve an educational purpose, the Supreme Court has required that religious texts be incorporated into the class curriculum.[18] However, in Stone, because the religious text was not incorporated into the curriculum, the Supreme Court reasoned that the Ten Commandments served only to prompt children to “read, meditate upon, perhaps to venerate and obey, the Commandments.”[19]

In McCreary County, Kentucky v. ACLU of Kentucky, the Supreme Court ruled displaying the Ten Commandments outside of courthouses was unconstitutional under the First Amendment.[20] In Kentucky, large displays of the Ten Commandments were erected outside two courthouses.[21] In its analysis, the Court affirmed that Stone was the controlling authority, stating that Stone articulated that “their [the Ten Commandments] isolated exhibition did not leave room even for an argument that secular education explained their being there.”[22] However, the Court also recognized that Stone did not determine every instance in which a display of the Ten Commandments would be unconstitutional. [23]

In ACLU of Kentucky, the monuments at the courthouses were originally the Ten Commandments alone.[24] Similar to the decision in Stone, the Supreme Court found that the Ten Commandments alone stood for nothing more than an “unmistakable religious object.”[25] However, the county changed the display to reflect the “Foundations of American Law and Government.”[26] The Ten Commandments were displayed with other founding documents including the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Kentucky Constitution, and a picture of Lady Justice.[27] However, the Court found the collection of documents that were “said to be Foundations of American Law and Government” were “odd.”[28] For example, the Court questioned why the display included a patriotic anthem but failed to include some of the most important documents to our nation, like the original Constitution or the Fourteenth Amendment.[29] Given the odd selection of documents in the display, the Court reasoned that an observer would suspect the counties were “simply reaching for any way to keep a religious document on the walls of courthouses.”[30] The Court further reasoned the display was disguised as an attempt to “embody religious neutrality.”[31]

However, in Van Orden v. Perry, the Supreme Court upheld the constitutionality of a Ten Commandments monument between the Texas State Capitol and the Texas Supreme Court.[32] The Supreme Court found that the monument had religious and governmental significance, therefore it did not violate the Establishment Clause.[33] In its analysis, the Court declined to apply the Lemon Test to the monument and instead applied the History and Tradition test.[34] The Court found that the monument was consistent with the history and tradition of the nation because the Ten Commandments appeared frequently in decorations within courthouses and governmental buildings.[35]

Additionally in Van Orden, the Court affirmed the holding of Stone by stating that a law that requires public schools to post the Ten Commandments in every classroom was “improper and [had a] plainly religious purpose.”[36] The Supreme Court emphasized religion in elementary and secondary schools requires vigilance in monitoring due to the children’s susceptibility to being coerced into religion.[37] However, the opinion articulated in Stone did not suggest that its holding would extend to “a legislative chamber or to capitol grounds.”[38]

Recently, in Kennedy v. Bremerton School District, the Supreme Court clarified the legal standard courts must use to analyze Establishment Clause claims. The Supreme Court held that the Lemon Test was not to be used, and instead, the History and Tradition test should be applied.[39] Thus, to determine if any future statutes are constitutional under the Establishment Clause, the primary question courts should ask is whether the statutes are consistent with the history and tradition of our nation.[40] If any statute is inconsistent with historical practices, then the statute will be deemed unconstitutional under the Establishment Clause.[41]

B. The Act

The Act states that “[n]o later than January 1, 2025, each public school governing authority shall display the Ten Commandments in each classroom in each school under its jurisdiction.”[42] Schools under the mandate include elementary, secondary, and post-secondary schools.[43] The display of the Ten Commandments must be titled “The History of the Ten Commandments in American Public Education” and include a description of the history.[44] An excerpt of the description states the following:

The Ten Commandments were a prominent part of American public education for almost three centuries. Around the year 1688, The New England Primer became the first published American textbook and was the equivalent of a first grade reader. The New England Primer was used in public schools throughout the United States for more than one hundred fifty years to teach Americans to read and contained more than forty questions about the Ten Commandments. . . .[45]

Additionally, the law allows but does not require that, the Ten Commandments may also be displayed with the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance.[46] As cited directly in the Act, the legislator intends, through this display, to ensure that students understand the foundational documents of the nation and the state.[47] To support this argument, the Act directly cites the Supreme Court’s ruling in Van Orden.[48]

C. Plaintiffs’ Arguments

In Roake v. Brumley, the Plaintiffs argued that the law unconstitutionally enforces and prefers specific religious norms by requiring that public schools post the Ten Commandments in every classroom.[49] Additionally, the Plaintiffs added that students “will be unconstitutionally coerced into religious observance,” and they will be pressured to suppress their religious beliefs “to avoid potential disfavor.”[50] Therefore, the Plaintiffs argued that the state government adopts an official religion in violation of the Establishment Clause.[51] The Plaintiffs emphasized there is no history or tradition of displaying the Ten Commandments in public school classrooms.[52] Further, the Plaintiffs asserted that the Supreme Court’s ruling in Stone is a binding precedent, and given that the statute here is similar to the statute in Stone, the District Court must find the statute unconstitutional.[53]

D. The District Court’s Order Granting Preliminary Injunction

The District Court granted the Plaintiffs’ Motion for Preliminary Injunction  which prohibits the State from enforcing the Act until a final ruling is made.[54] The District Court concluded that the Act “runs afoul of Stone v. Graham… and later cases without the need for further factual development.”[55] Ultimately, the District Court concluded that Stone controls this case, and “this District Court remains bound to follow Stone until the Supreme Court overrules it.”[56]

The District Court found several factual similarities between this case and Stone. The District Court noted that both require public schools to post the Ten Commandments in every public elementary and secondary classroom.[57] Additionally, the size requirements of the display were similar, and both required a description to explain the historical basis for the display.[58] Moreover, neither represented nor represents “a case 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.”[59] For those reasons, the District Court concluded that these similarities made the two cases “legally indistinguishable.”[60]

III. Discussion

The District Court should find the Act unconstitutional under the Establishment Clause and grant a permanent injunction. First, the State’s reliance on Van Orden is unpersuasive because the holding in Van Orden specifically stated that the Ten Commandments were historically in courthouses and capitol chambers.[61] As a result of that history, specific to courthouses and capitol chambers, the Ten Commandments monument did not offend the Establishment Clause.[62] Further, nowhere in Van Orden, did the Supreme Court indicate that there was a history and tradition of the Ten Commandments being displayed in public classrooms.[63] Instead, the Supreme Court reaffirmed Stone’s holding that simply displaying the Ten Commandments in public classrooms runs afoul of the Establishment Clause.[64] Unlike in Van Orden, the Act here does not mandate that the Ten Commandments be posted in Louisiana courthouses or capital buildings.[65] Instead, the Act mandates the Ten Commandments be displayed in public classrooms.[66] Therefore, the history and tradition analysis that upheld the use of the Ten Commandments in courthouses cannot be applied to this case. As a result of the factual differences between this case and Van Orden, the District Court should not find Van Orden persuasive in determining whether the Act is unconstitutional under the Establishment Clause.

Instead, the Act should be analyzed under Stone’s holding because, as found in the Preliminary Injunction ruling, there are factual similarities between Stone and the Act. In Stone, public schools were required to post the Ten Commandments on a wall in classrooms.[67] In addition to the Ten Commandments, the display included a description of the founding documents of our nation’s history.[68] Additionally, the Supreme Court noted in Stone that there was no evidence that the Ten Commandments were implemented into school curriculum, and therefore did not serve an educational purpose or function.[69] Similarly, the Act also requires that the Ten Commandments be posted on the walls of classrooms.[70] The Act also requires a description indicating that the  purpose of the display is to educate students about the founding documents of our nation.[71] Further, the Act does not require any curriculum to be taught about the Ten Commandments, indicating that the display has no educational purpose.[72] Given the similarities between the Act and Stone, the holding of Stone should apply here, and the District Could should find the Act unconstitutional under the Establishment Clause.

Lastly, the Act serves no educational purpose, furthering the Act’s unconstitutionality.  In McCreary County, the Ten Commandments were also displayed with the Declaration of Independence and the Mayflower Compact.[73] The Supreme Court found the combination of documents to be “odd” and the display clearly was disguised as an attempt to “embody religious neutrality.”[74] Here, the Act allows, but does not require, that other documents including the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance, be displayed with the Commandments.[75] Given that the State relies on similar documents as in McCreary, the Supreme Court’s reasoning should be applied here. Thus, if an observer viewed the Act’s display, the display would not embody religious neutrality but instead would give the impression of religious endorsement.[76] Given that religious endorsement is impermissible under the Establishment Clause, the Act should be deemed unconstitutional.[77]

IV. Conclusion

The Act should be held unconstitutional under the Establishment Clause because of the Supreme Court’s precedent. Given that the Act is factually similar to the law in Stone, the District Court should find the Act unconstitutional under stare decisis. Further, the State’s reliance on Van Orden, should not factor into the District Court’s analysis, because the Supreme Court’s reasoning specifically applied to governmental buildings, which is not at issue in Roake. Even if the District Court holds that the Act is unconstitutional, the State could appeal, and the Supreme Court could grant certiorari. Over the past few decades, the Supreme Court has slowly chipped away many Establishment Clause protections. This trend could predict that the Supreme Court could find the Act constitutional and simultaneously overrule Stone’s holding.

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[1] Complaint at 9, Roake v. Brumley, 2024 WL 4751509 (M.D. La June 24, 2024) (No. 3:24-cv-00517).

[2] Id. at 10.

[3] Id.

[4] Id. at 1.

[5] Id. at 39.

[6] Roake v. Brumley, No. CV 24-517-JWD-SDJ, 2024 WL 4746342, at *90 (M.D. La. Nov. 12, 2024).

[7] U.S. Const. amend. I, §1.

[8] Lemon v. Kurtzman, 403 U.S. 602, 607 (1971).

[9] Id. at 613.

[10] Id. at 616.

[11] Id. at 611-25

[12] Stone v. Graham, 449 U.S. 39, 41 (1980).

[13] Id. at 42.

[14] Id.

[15] Id.

[16] Id. at 41.

[17] Id. at 42.

[18] Id. (citing Abington School District v. Schempp, 374 U.S. 203, 225 (1963)).

[19] Id.

[20] McCreary Cnty., Ky. V. Am. C.L. Union of Ky., 545 U.S. 844, (2005).

[21] Id. at 851.

[22] Id. at 867.

[23] Id.

[24] Id. at 868-89.

[25] Id.

[26] Id. at 871.

[27] Id. at 856.

[28] Id. at 872. 

[29] Id.

[30] Id. at 874.

[31] Id. at 873.

[32] Van Orden v. Perry, 545 U.S. 677, 691-92 (2005).

[33] Id.

[34] Id. at 686.

[35] Id. at 688-89.

[36] Id.

[37] Id. at 691.

[38] Id.

[39] Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022).

[40] Id.

[41] Id.

[42] H.B. 71, 2024 Reg. Sess. (La. 2024).

[43] Id.

[44] Id. at (B)(3).

[45] Id.

[46] Id.

[47] Id. at (A)(9).

[48] Id. at (A)(6) & (9).

[49] Complaint at 39, Roake v. Brumley, 2024 WL 4751509 (M.D. La June 24, 2024) (No. 3:24-cv-00517).

[50] Id.

[51] Id.

[52] Id. at 39-40.

[53] Id.

[54] Roake v. Brumley, No. CV 24-517-JWD-SDJ, 2024 WL 4746342, at *90 (M.D. La. Nov. 12, 2024).

[55] Id. at *3.

[56] Id. at *4-5.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Van Orden v. Perry, 545 U.S. 677, 688-89 (2005).

[62] Id. at 691-92.

[63] Id.  

[64] Id. at 690-91.

[65] H.B. 71, 2024 Reg. Session, (La. 2024).  

[66] Id. at (B)(1).

[67] Stone v. Graham, 449 U.S. 39, 42 (1980).

[68] Id.

[69] Id.

[70] H.B. 71, 2024 Reg. Session, (La. 2024).   

[71] Id. at (B)(3).

[72] Id. at (A)(11).

[73] McCreary Cnty., Ky. V. Am. C.L. Union of Ky., 545 U.S. 844, 856 (2005).

[74] Id. at 848.

[75] H.B. 71(B)(4)(a), 2024 Reg. Session, (La. 2024).

[76] Id.

[77] Id.

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