A Louisiana state law mandating Ten Commandments posters in public schools is the latest in a long line of controversies related to religious symbolism in public locations.
On Nov. 20, 2024, the Fifth Circuit Court of Appeals ordered arguments to be heard on Jan. 23, 2025, in Roake v. Brumley. Parties in five Louisiana school districts are opposing HB 71 or Act 676, a new state law that requires the Ten Commandments to be placed in all public school classrooms in the form of a small poster. The act also calls for schools to accept private funds and donations or donated displays to offset costs for putting up the posters.
The state law requires the display of “certain historical documents” including the Mayflower Compact, the Declaration of Independence, the Northwest Ordinance, and the Ten Commandments “to provide for historical context” at public facilities. The law cites several Supreme Court decisions, such as Van Orden v. Perry (2005) and American Legion v. American Humanists Association (2019), as legal authorities permitting the Ten Commandments displays along with the other documents.
In a 5-4 decision in Van Orden, the Court allowed the display of a Ten Commandments monument at the Texas state capitol because of its historical meaning. In the plurality opinion written by Chief Justice William H. Rehnquist, the court noted that “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.” In the American Legion decision, the justices ruled in a 7-2 decision that a 40-foot-high cross built on private property that was later acquired for public use could remain in service because of its historic importance as a war memorial.
However, in the Roake v. Brumley case, the plaintiffs believe the Louisiana Ten Commandments law violates the Establishment and Free Exercise Clauses of the First Amendment and other established Supreme Court precedents including Stone v. Graham (1980), where a divided court ruled that a Kentucky law requiring the Ten Commandments in public classrooms did violate the First Amendment’s Establishment Clause as it did not serve a secular purpose. Among the plaintiffs in the current Louisiana case are clergy and members of the Catholic, Jewish, and other faiths who object to the use of a Protestant King James Bible version of the Ten Commandments that “imposes a set of distinct religious norms on Louisiana’s public-school children.”
On Nov. 12, 2024, Judge John W. deGravelles of the United States District Court for the Middle District of Louisiana issued a 177-page opinion blocking the law from going into effect on Jan. 1, 2025. The Fifth Circuit then held that the deGravelles ruling only affected the five school districts named in the lawsuit and it set a date for arguments. For the other 67 school districts in Louisiana the law is set to be effective on Jan. 1, 2025.
Reviewing the Precedents
In his opinion, deGravelles reviewed the considerable case history of the Ten Commandments and church-state questions at the Supreme Court. Starting with Stone v. Graham and a prior case cited in that opinion, Lemon v. Kurtzman (1971), deGravelles wrote that he had enough evidence to find that the Louisiana law was unconstitutional.
In the Lemon decision, the court created a three-part test to determine if a law violates the Establishment Clause. The test said that: 1) a law must have a secular legislative purpose, 2) the law’s primary effect neither advanced nor inhibited religion, and 3) the law did not create an excessive government entanglement with religion.
The subsequent Stone decision applied the Lemon test to the question of the Ten Commandments law passed in Kentucky. In its per curiam opinion, the Stone court said the Kentucky law, which allowed private funds to pay for posting the Ten Commandments at public schools, failed the first part of the Lemon test since it did not serve a secular legislative purpose.
While deGravelles believed the Louisiana law also failed under the Stone precedent, he acknowledged the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District had changed the landscape of prior related rulings. In his majority opinion in Kennedy, Justice Neil Gorsuch established a new test to replace the Lemon test that referred to historical practices and understandings related to “the Founding Fathers.”
Using the Kennedy test, deGravelles believed that the Louisiana law was still unconstitutional. “The Court finds that Plaintiffs have adequately pled an Establishment Clause claim post-Kennedy,” he concluded. Several faults with the Louisiana act were problematic. First, deGravelles stated that “the Plaintiffs have sufficiently alleged that the Act violates the Establishment Clause because it does not fit within and is not consistent with a broader tradition in place at the time of the Founding or incorporation.”
DeGravelles said plaintiffs had introduced expert testimony that public schooling was nonexistent at the time of the founding and drafting of the Constitution, and that no evidence existed of “longstanding, widespread use of the Ten Commandments in public education” in subsequent years. And deGravelles said even if a tradition existed, the Louisiana act was “discriminatory and coercive.”
The arguments in Roake v. Brumley will be closely watched for several reasons. The case is one of the first major tests of the court’s new approach to deciding Establishment Clause cases as stated in Kennedy v. Bremerton School District. Also, several other states have passed or our considering laws in a similar context to Louisiana’s Ten Commandments law. In Texas, lawmakers have re-filed a similar bill about the Ten Commandments that was not considered in 2024 for their next legislative session. In Oklahoma, a group of parents and children is suing the state over a recent mandate to place bibles and copies of the Ten Commandments in public schools as classroom resources.
And among some court watchers, the Louisiana case is considered as a possible chance for the Supreme Court to clarify the application of its Kennedy test about the Establishment Clause. As Judge deGravelles noted in his opinion, the Kennedy court “did not overrule Stone, or even mention it.” He concluded that “even if the continued validity of a Supreme Court decision [Stone] is called into doubt, that case controls, and lower courts should leave it to the Supreme Court to overrule its own decisions.”
Scott Bomboy is the editor in chief of the National Constitution Center.
