The John Minor Wisdom U.S. Fifth Court of Appeals building in New Orleans on Oct. 3, 2017 (Jolie McCullough/The Texas Tribune)
NEW ORLEANS – Three judges on the U.S. 5th Circuit Court of Appeals considered arguments Thursday over a state law that requires displays of the Ten Commandments in every Louisiana public school classroom.
A group of nine parents, each on behalf of their children, sued to block the law shortly after the Louisiana Legislature and Gov. Jeff Landry approved it last spring. A lower court ruled in November the requirement violates the First Amendment’s prohibition against establishing a state-approved religion.
Louisiana Attorney General Liz Murrill appealed that ruling, which the 5th Circuit decided only applied to the five school districts that are among the defendants in the case. For every other district, the law went into effect at the start of this month.
The American Civil Liberties Union and Americans United for Separation of Church and State are also representing the plaintiffs in the case. Youngwood’s law firm, Simpson, Thacher and Bartlett, is providing its services to the parents at no cost.
In addition to the five school districts, Louisiana Education Superintendent Cade Brumley and members of the state Board of Elementary and Secondary Education are defendants.
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Judge Catharina Haynes led the hearing conducted via Zoom because of the winter weather. She questioned why the law was approved when Solicitor General Benjamin Agiuñaga presented his arguments.
“I’m respectful of the Ten Commandments, and I think everybody is,” said Haynes, federal court appointee of former President George W. Bush. “But that doesn’t mean it has to be put in every classroom in a state under the First Amendment.”
Aguiñaga said the law’s language notes the historical significance of the commandments in the foundation of the U.S. legal system merits their display in classrooms.
In addition to defending the law, Aguiñaga argued the plaintiffs filed their lawsuit too hastily because the displays had not yet been posted and no children had been harmed. The judges must rule first on whether the parents had the right to sue before considering the merits of their case.
Aguiñaga cited a 2007 ruling from the 5th Circuit in the case Staley v. Harris County, which involved a memorial display outside a Texas courthouse that included a Bible. Appellate judges first upheld a lower court ruling that deemed the monument unconstitutional, but the 5th Circuit later reversed its decision. The ruling declared that because the monument was being refurbished, it wasn’t clear yet what it would look like or whether it violated the First Amendment.
Jonathan Youngwood, an attorney for the plaintiffs, countered that legal theory in First Amendment cases does not require plaintiffs to be harmed before they seek relief.
He also stressed the religious intent of the law’s author, Rep. Dodie Horton, R-Haughton, who he quoted as saying: “It is so important that our children learn what God says is right and what he says is wrong.”
Youngwood also noted “religious references” to God and the Sabbath day in the first four commandments, which he said violate the Establishment Clause of the First Amendment.
“Of course the Ten Commandments are worthy of great respect and are profoundly meaningful to many, many people, and they have a place in our society,” Youngwood said. “They don’t have a place in this form in public schools.”
Judge Irma Carrillo Ramirez, an appointee of President Joe Biden, asked Aguiñaga if he could cite any prior court decisions that allowed displays of the Ten Commandments in a school setting. He could not but instead referenced a ruling that allowed students who are Jehovah’s Witnesses to abstain from the Pledge of Allegiance.
“The fact that they are allowed under the First Amendment to opt out of participating in the pledge doesn’t mean that they can also request that the flag be taken down or that the pledge not be said,” Aguiñaga said.
Judge Haynes voiced some skepticism of Aguiñaga’s reference to the Staley case, noting that few people are compelled to go to a courthouse while children are required to go to school.
Judge James Dennis, who former President Bill Clinton appointed to the federal bench, also heard arguments Thursday.
Haynes said the appellate judges would do their best to render a decision in the near future.
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