A copy of the Ten Commandments is displayed outside the U.S. Supreme Court June 23, 2005 in Washington, DC. Experts say previous Supreme Court rulings that limited displays of the Ten Commandments in schools may be on “shaky ground.” (Win McNamee/Getty Images)
What would happen if Alabama passed a Ten Commandments law similar to Louisiana’s? It’s unclear.
Louisiana Gov. Jeff Landry on June 19 signed HB 71, a law requiring the Ten Commandments be displayed in schools. HB 71 requires any school that accepts state money, including institutions of higher education, to display a poster or framed document of the Ten Commandments measuring at least 11 inches by 14 inches.
Speaking at a Republican fundraiser in Tennessee on June 15, Landry said he expected to be sued over the law.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
“I’m going home to sign a bill that places the Ten Commandments in public classrooms,” he said, according to the Tennessean. “And I can’t wait to be sued.”
Four civil rights groups announced a suit against the law on June 19.
Law professors who spoke to the Alabama Reflector said that precedent and the current U.S. Supreme Court’s record make it hard to predict what will happen if Alabama passed a similar law that ended up in court.
“The best answer is that Louisiana’s law will find a more receptive court, but the decisions that the Supreme Court has issued so far in recent years don’t guarantee a win for them,” said Paul Horwitz, a law professor at the University of Alabama.
As of yet, it’s not clear whether any bill will be filed in Alabama next year. In 2018, state voters approved a constitutional amendment that allows — but does not mandate — displays of the Ten Commandments on public property, including schools. Public funds could not be used to defend the constitutionality of it. Versions of the legislation had been filed for years prior.
Sen. Sam Givhan, R-Huntsville, told WAFF 48 last week that he expected a bill to be filed. Givhan wrote in an email to the Reflector that he has not spoken with anyone about such a bill being filed.
In 1980’s Stone v. Graham, the U.S. Supreme Court struck down a Kentucky law that required the Ten Commandments to be posted in classrooms. The court ruled that the law violated a test established in 1971’s Lemon v. Kurtzman to determine if a law violated the First Amendment’s Establishment Clause, banning laws establishing religion or prohibiting its exercise.
The Lemon Test says that “government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state,” according to the U.S. Courts website.
But Horwitz said that decision is on “shaky ground” because the Lemon Test has since been “essentially overruled.”
Horwitz also said that a famous decision on displaying the Ten Commandments at the Alabama Supreme Court will not apply.
In August 2001, Alabama Chief Justice Roy Moore unveiled a granite monument in the Tolbert-Heflin Judicial Building that displayed the Ten Commandments. Moore installed the monument without informing the other justices on the court. A group of plaintiffs sued. In 2003’s Glassroth v. Moore, U.S. District Judge Myron Thompson ruled for the plaintiffs and ordered the monument removed, citing Moore’s remarks at the dedication that mentioned the “sovereignty of God.”
“He installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose and effect of establishing a permanent recognition of the ‘sovereignty of God,’ the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen’s individual personal beliefs or lack thereof,” Thompson wrote. “To this, the Establishment Clause says no.”
Moore refused to remove the monument, which led to his first ouster as chief justice in 2003.
Under Alabama case law, Horwitz said that classrooms and courtrooms are different enough.
The Ten Commandments memorial rests in the lobby of the rotunda of the Heflin-Torbert Judicial Building in Montgomery, Alabama on November 18, 2002. Then-Alabama Chief Justice Roy Moore had the monument installed in the building in 2001, but a federal judge, citing religious statements Moore made at the unveiling of the monument, ruled that it violated the Constitution’s Establishment Clause and ordered it removed. Moore refused to do so, leading to his first removal as chief justice in 2003. (Gary Tramontina/Getty Images)
For classrooms, he said the court could also rely on history and tradition in deciding if something can be constitutionally regulated.
“That’s been the line it’s taken in its recent religion cases, and that’s the kind of thing along with some decisions a little further back, that the Louisiana Legislature cited in its statute, but none of those decisions clearly directly applies to this display,” he said.
He said that public schools are a more modern institution, and the display has no other historical context.
“That leaves the court with the kind of discretion it has when it looks at something as broad as history and tradition,” he said.
Memorials and symbols
Both Horwitz and Jeremy Paul, a law professor at the Northeastern University School of Law in Boston, cited The American Legion vs. American Humanist Association (2019), in which the Supreme Court ruled that a 40-foot cross honoring World War I soldiers could remain maintained by the Maryland-National Capital Park and Planning Commission.
Paul said that the court viewed the cross as a memorial rather than a religious symbol. He said something similar could happen with the Ten Commandments, which could include rules around killing but also worship.
“I don’t know anything special about Alabama – but I assume this is true in Alabama as well – in most communities, most of the people who are in most of these schools will adhere to one of the two religions when it finds the Ten Commandments so sacred,” he said. “But most is not good enough, right?”
Paul said that schools exist in a contradictory legal area in terms of oversight that are different from places like courthouses. On one hand, he said, schools have to create more curricula, which means proponents could argue that there is more power over schools – such as installing the Ten Commandments. But on the other hand, he said, it could be argued that schools and government should have less authority to install things like the Ten Commandments because they oversee a population that is more vulnerable to influence.
Paul referenced the 1992 Lee vs. Weisman decision, which prohibited prayer at a high school graduation. But in 2022’s Kennedy vs. Bremerton, the Supreme Court said a school was wrong to ask a football coach to discontinue a prayer on the field with players.
“The Free Exercise Clause protects individuals to practice a religion, and the Establishment Clause protects people from being coerced into practicing religion that they don’t want,” he said. “So, the two clauses work together to create a separation of church and state.”
He said that schools can promote morality and strong communities, which also exist in the Ten Commandments. But if the Ten Commandments are linked to religion or God, he said, then it’s the government trying to impose its views on people.
Paul also said measures like these were “clearly divisive.”
“They’re clearly designed to pit people against each other because people who haven’t thought about this very carefully are going to hear, ‘Oh my God, now they want to get rid of the Ten Commandments,’ ‘What kind of country are we heading to where you can’t be religious anymore,’ and so they’ll get all riled up, and the people who are on the other side are like, ‘Oh my god, they want to force the Ten Commandments down our throats,’” he said. “They’ll get all riled up, and in the meantime, everyone gets all riled up and hates each other, and so we can’t focus on how we can work together to solve the country’s problems.”
SUPPORT NEWS YOU TRUST.
The post Old cases regulating Ten Commandments displays may be on ‘shaky ground’ appeared first on Alabama Reflector.