On June 19, 2024, the governor of Louisiana signed into law House Bill No. 71. The legislation requires that by January 1, 2025, all K-12 public schools, charter schools, and state post-secondary institutions place in their classrooms a poster-size copy of the Ten Commandments (“10Cs”). The 10Cs are to be displayed along with a three-paragraph “context statement” situating the commandments as part of the American educational experience for almost three centuries. The option is given to also post copies of the Mayflower Compact of 1620, the Declaration of Independence of 1776, and the Northwest Ordinance of 1787.
H.B. 71 starts with findings and declarations—along with the context statement—concerning the 10Cs. The role of the 10Cs in constituting the American people is said to be in accord with our nation’s understanding that a moral citizenry is necessary for the maintenance of a democratic people. Louisiana is not so much declaring that the 10Cs are religious beliefs to be commended to students, but that the commandments played a foundational role in shaping the laws and moral ethos of the state and of the nation. That puts the legislative purpose one step removed from the unquestionably religious nature of the 10Cs.
The 10Cs to be posted are set out in H.B. 71. The chosen text is said to be taken from a 10Cs monument on the state capitol grounds in Austin, Texas, that was upheld as constitutional in Van Orden v. Perry.
No public moneys are to be spent in compliance with the 10Cs mandate. Rather, schools and college campuses are to rely on donated funds, as well as gifts of suitable 10Cs posters. The absence of state expenditures is not determinative with respect to compliance with the First Amendment’s Establishment Clause. However, there may be state constitutional restrictions on the use of public funds when appropriated for certain religious purposes, to which this limitation is responsive.
On June 24, 2024, the ACLU, Americans United for Separation of Church & State, and the Freedom From Religion Foundation filed suit in federal court against Louisiana officials, joined in their official capacity only, seeking a preliminary and permanent injunction against the 10Cs mandate. The named plaintiffs are parents of minors who are students attending K-12 public schools in Louisiana. The complaint sets forth counts under the Establishment Clause and the Free Exercise Clause. The requested injunction is to be directed only to Louisiana’s primary and secondary schools.
The first issue is whether the plaintiffs have standing to sue. In a straight-up claim under the Establishment Clause, the plaintiffs’ injury is mere exposure to unwanted speech initiated by the government; standing premised on such an injury is sometimes referred to as “offended observer standing.” Students are not required to read, recite, or otherwise interact with the 10Cs posters. In most civil liberties lawsuits, like the split decision last month by the Fourth Circuit panel in Mahmoud v. McKnight, mere exposure is not enough to have standing. In Mahmoud, students, along with their parents, sued to get notice and to opt out from exposure to LGBTQ curricula taught in their public school. The panel majority held that there was no standing because exposure, without more, to the unwanted curricular information, no matter how viewpoint-biased its content, was not a cognizable injury.
That is not the standing rule, however, in cases involving the Establishment Clause. Justice Gorsuch, concurring in the judgment in the offended observer case of American Legion v. American Humanist Association, admits that the Court’s Establishment Clause precedents grant standing in offended observer cases, though he objects to it. But the rationale for relaxed standing is that the Establishment Clause is not a personal right but is structural in nature. In contrast, there is no relaxed standing for claims under the Free Exercise Clause, Free Speech Clause, and other provisions protecting personal rights.
Early commentators argued that H.B. 71 was just like a Kentucky law struck down as violative of the Establishment Clause in Stone v. Graham. But the Stone Court used the three-prong Lemon test (religious purpose, religious effect, or excessive entanglement) to reach that result, and the U.S. Supreme Court has long since abandoned that test. That fait accompli was explicitly acknowledged in Kennedy v. Bremerton School District. As Kennedy pointed out, more recent cases require that the Establishment Clause be interpreted by reference to “historical practices and understandings.” The Louisiana plaintiffs will need to point to historical events similar to the 10Cs mandate, that were the practice in states with established churches at the time of the founding.
Perhaps sensing weakness in the merits of a straight-up Establishment Clause claim, the ACLU’s complaint sets forth additional causes of action. The first is a claim that the law expresses a denominational preference. Religious groups differ in their English translations of the 10Cs, and by choosing one such translation in H.B. 71, the ACLU claims the state is preferring it over others. A second cause of action being floated is that H.B. 71, by choosing one translation of the 10Cs over others, the state is taking sides in a religious dispute.
The theory of denominational preference does indeed state a claim for relief under the Establishment Clause. And the doctrine of church autonomy does indeed prohibit civil authorities from taking sides in a religious dispute. However, as of yet, there is no evidence, admissible on the point, that in enacting H.B. 71, the State of Louisiana sought to intentionally prefer one religious denomination over others or that officials were purposefully taking one side in a religious debate. There may well be a disparate impact of the sort complained of here when H.B. 71 is implemented in the classrooms, but when a law unintentionally has the effect of assisting one religion over others the Establishment Clause is not implicated. This makes sense: Laws generally have the potential for rubbing up against all sorts of religious beliefs and practices in unexpected ways. When courts overturn a law for violating the Establishment Clause, the law is a nullity not just for the plaintiff but for everyone. Passing most any law and then keeping it would soon become impossible if an Establishment Clause claim was not limited to a government’s intentional acts.
That takes us back to the straight-up Establishment Clause claim: Does the 10Cs mandate transgress the First Amendment’s command that the government “make no law respecting an establishment of religion”?
The First Congress of 1789 that produced the Bill of Rights was overwhelmingly controlled by Federalists. The Federalists believed that the nature of the 1787 Constitution was such that any power not delegated to the new government was denied to it. In their view, the federal government was not delegated any express powers to legislate on the subject of religion. In part, this was because the legal regulation of institutional religion differed among the thirteen states, and in several of these states there were ongoing church-state controversies. Accordingly, a continent-wide debate over religion would have made it more difficult to ratify the draft Constitution, as well as to otherwise unify the new federal government. It was also widely believed that religion was a matter best left to each state. It was in the colonies (now states) that religion had been addressed with considerable regional variation for close to two centuries.
The Bill of Rights was drafted by the First Congress during deliberations from May to September 1789. Concerning the two religion phrases that begin the First Amendment, the Federalists’ overall aim was to reassure those among the public who were still anxious that the fundamental rights they currently enjoyed in their respective states could not be diminished by the new federal government. Given that there was no interest among Federalists in having the central government exercise authority concerning religion, it is not surprising that the drafting record shows that those in charge of the amendments designed them to attract little opposition. In this vein, their detractors characterized the ongoing effort as “milk and water amendments,” as “little better than whip-syllabub, frothy and full of wind, formed only to please the palate,” or simply “anodyne to the discontented.” The one proposed amendment that would have truly impacted the rights of many Americans—the House-supported requirement that no state violate the right of conscience—was dropped in the Senate without so much as a protest. There were no citizen broadsides, speeches, or letters to newspaper editors complaining about the deliberations in Congress over the no-establishment text. Notwithstanding the heated debates in a few states over establishmentarian issues (especially Virginia and Massachusetts), as well as well-documented differences of opinion about establishmentarianism among able members in the 1789 Congress, the floor debate over the religion phrases in the First Amendment was more of a quiet labor among the likeminded to ensure that the end text was not subject to misreading. So it seems that the Federalists, as they had promised, were able to report out a text for successful ratification by the states, all while not generating public controversy.
House and Senate deliberations concluded in mid-September 1789 with the Establishment Clause stating plainly that Congress had no power to establish a national religion (“ . . . make no law respecting an establishment of religion . . .”). This was more than just a denial of authority in the federal government to openly declare a preference for a single church, although it surely entailed that. And the words “an establishment of religion” meant more than the Senate’s last version of the amendment—ultimately rejected—negating government power only with respect to “articles of faith” and “a mode of worship.” But when it comes to original public meaning, that is about all that reliably can be said from the congressional record.
Of course, there never was a church established by the new federal government. Whether state-established churches familiar to our nation’s founders used their power, via educational institutions, to expose students to something like the 10Cs is a historical inquiry that the ACLU carries the burden to pursue.
As a further complication, the six Supreme Court Justices who generally refer to themselves as originalists are modestly divided on just how exacting or similar must be the historical analogue to bind the text of the Constitution to the history and traditions at the founding. For differences in methodology, compare the various opinions in the recently-decided U.S. v. Rahimi.
I close by observing something about the controversy over H.B. 71. Litigating this act will take considerable time and treasure in the federal district court, with the inevitable appeal by the losing party. And no matter the final judgment, the litigation will further divide us. Moreover, the hyper-politicization of religion is harmful to the better works of our churches and other houses of worship. Contrast the litigious approach to the law with that of a more ancient observer who, when asked which of the 10Cs was the greatest commandment, said, “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbor as thyself.” The Golden Rule is a surer path for our students to responsible and productive citizenship, and that despite our deepest differences.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].