A Ten Commandments sculpture is on display in front of city hall June 27, 2001 in Grand Junction, Colorado.(Michael Smith/Getty Images)
Opponents of a new law that requires displays of the Ten Commandments in Louisiana classrooms point out that its language includes a quote attributed to one of the nation’s founding fathers that he didn’t actually say.
But that may not matter if a federal judge finds testimony one expert gave Monday in court irrelevant.
Those comments came Monday during arguments for a lawsuit that seeks to block the law from taking effect Jan. 1. U.S. District Judge John deGravelles, an appointee of former President Barack Obama, heard from a professor who called into question whether the Ten Commandments is a historical document that influenced America’s founding, as supporters of the law claim.
While many see the legislation only for its provisions requiring classrooms to display a Ten Commandments poster, its other and perhaps more significant purpose, as evidenced in the first two pages of the law itself, is to try to establish an official record that ties the origins of U.S. law to a Protestant Christian doctrine. If its advocates succeed, the Louisiana law could revise a national historical record that has long supported the separation of church and state.
The problem is that some of what lawmakers placed into the legislation is flat out fake and based on myth, according to Steven Green, professor of law, history and religious studies from Willamette University, who testified on behalf of a group of parents challenging the constitutionality of the Louisiana mandate. The parents filed the lawsuit with the help of the American Civil Liberties Union and other groups.
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Judge deGravelles heard arguments Monday on whether Green should be allowed to testify as an expert witness in the case and whether the court should grant a preliminary injunction to stop schools from complying with the new law before a decision is made or dismiss the case altogether.
The judge said he plans to rule on the matter by Nov. 15. School system leaders in the five parishes where the plaintiffs reside – East Baton Rouge, Livingston, Orleans, St. Tammany and Vernon — have agreed to hold off on placing the Ten Commandments posters in classrooms until mid-November and aren’t legally required to do so until Jan. 1, 2025.
The bill lawmakers passed earlier this year contains what it purports to be a quote from James Madison, the fourth president and the chief architect of the U.S. Constitution: “(w)e have staked the whole future of our new nation … upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments.”
Green, an expert on First Amendment issues involving school prayer, religious displays and the separation of church and state, told the court the quote cannot be traced back to any primary historical documents related to Madison or any peer-reviewed research papers from scholars who have studied him.
Several different versions of the quote exist online as people continue to tweak it for various reasons.
Green went on to discount many of the other passages in the bill, noting that none of America’s founding documents — such as the U.S. Constitution, Declaration of Independence and Bill of Rights — make any mention of the Ten Commandments. The same holds true for the Magna Carta, Mayflower Compact and Northwest Ordinance, all referenced in House Bill 71.
Calvinist and Protestant church leaders published the early school materials, such as the New England Primers and McGuffey Readers, referenced in the legislation before a public education system was well-established. Those materials referenced the Ten Commandments only two or three times among hundreds of lessons and were eventually omitted as education became more secular over time, Green said.
There were many different religions and religious sects in the early American colonies, so Madison and the other founders were very aware that any establishment of religion or indication of religious favoritism would cause discord, Green said. Some of the nation’s early criminal laws are indirectly based on the principles of the Ten Commandments and other philosophical writings, but the historical record shows no direct connection between any religion and the founding of America, he said.
“The influence is indirect, at best,” Green said. “We have a lot of founding myths, and this is one of them.”
The state, led by Republican Attorney General Liz Murrill, did not attempt to defend the historical accuracy of the claims within the bill while also not conceding to the plaintiffs’ version. Rather than try to refute Green’s testimony, the state’s lawyers argued that history is irrelevant at this juncture in the case, and the court should not allow Green to testify as an expert witness.
The attorney general’s team of lawyers also argued Green is biased because he previously served as the legal director of Americans United for Separation of Church and State and the Freedom from Religion Foundation.
While questioning Green under cross examination, the state’s lawyers tried several times to argue that he was testifying as a legal expert rather than a historian, but the judge seemed annoyed with the state’s lawyers for continuing to suggest it.
“He’s not qualified as a legal expert,” deGravelles said emphatically. “That’s what I said about three times.”
Other arguments from Murrill’s team could prove more persuasive at getting Green’s testimony struck from the record and winning a dismissal of the case. Her attorneys argued that the court should at least see the posters before ruling on whether to block the law.
The state’s lawyers pointed out that no case law exists in which a court has ever adjudicated an “imaginary” religious display that no one has seen.
“We think it’s premature,” Murrill told reporters following the hearing.
The plaintiffs’ lawyers argued that their clients include Catholic and Jewish families who shouldn’t be forced to look at Protestant scripture. The law requires the display of the Ten Commandments found in the King James Version of the Bible, which differs from the Catholic and Jewish scriptures. The state did not refute the claim that the posters are Protestant religious displays.
At one point in the hearing, the state’s lawyers presented an example of a Ten Commandments poster that would meet the minimum requirements set in the law. When the judge saw it, he noted the font was so small that it was nearly impossible to read from where he was sitting.
The law calls for the displays to be at least 11 inches by 14 inches.
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