The Pelican State, Louisiana, just passed a law requiring the display of the Ten Commandments in public schools. The posters have a specified size and must be paid for by private donations. The purpose of the law is a blatant attempt to get religion back in public schools but the legal convolutions for trying it out once again are rather interesting, though I don’t think the reasoning will work.
Here’s an NPR interview with Matt Krause of the First Liberty Institute that defends religious liberty cases and supports the new law. He specifically singles out Kennedy v. Bremerton School District as showing a path forward for the Decalogue to reappear on schoolhouse walls. In Kennedy, a football coach would go pray at the 50-yard-line after games. He didn’t gather students with him or utter prayers over a loudspeaker. He just prayed alone. The school district fired him because they were nervous about the separation of church and state and the appearance of endorsement by the school system due to an employee acting religious. SCOTUS, however, used a balancing test between the coach’s First Amendment rights and the school’s desire for non-endorsement and concluded that the school system went too far. Krause thinks that the suspension in Kennedy of a hard delimitation gained from Lemon v. Kurtzman and the adoption of a weaker “history and tradition” standard creates a gap that the Decalogue can sneak through.
I doubt it. The balancing in Kennedy sheds little light on schoolhouse Ten Commandments posters which were ruled against in Stone v. Graham. In Stone, a strict “Lemon test” was applied to the display and it was found to have no secular purpose. The supposed weakening of Lemon strewn across later decisions all revolve around more passive displays, maintaining war memorials developed by others, and so forth. The coach’s rights were being balanced in Kennedy, but the legislature of Louisiana passed a law designed to provide religious content exposure to students. They are directly endorsing a religious tradition.
But I think there may be another path that Louisiana’s impassioned legislators might try and we see that in Van Orden v. Perry where displays of the Decalogue were allowed in public buildings. The display might be added to a general poster that deals with the legal foundation and heritage of the United States or Louisiana itself. Just make a poster that includes imagery of the Magna Carta, the Constitution, the Declaration of Independence, the Ten Commandments—hell, add in Jefferson’s Virginia Statute for Religious Freedom—and there is nothing much to worry about. Call it “Influential Historical Documents” and be done with it.
I’m always impressed with the chutzpah of religious folks who feel so strongly that public expressions of religion somehow add to public spaces or government actions. I once argued in a newspaper op-ed that a local city council that opened its meetings with a sectarian prayer from rotating religious figures should stop doing so out of simple fairness to everyone. It’s truly that easy. Apply a kindness test that discharges all activities that are not directly related to the actions of governance. Here’s an absurd parallel that shows that we already do this mostly: what if legislatures of states opened every session with a statement that emphasized their existence was due to the eradication of the threats imposed by indigenous people and we should all honor the wisdom and power of taking land to create these august and esteemed bodies! Oh my, no one wants that because it at least violates simple compassion and kindness. And so it is with the entanglement of government and religion. Regardless of what you think about religion, first be kind. Remember: freedom and coordination.
Edit: Italicized all the case names.