The current Louisiana 10 Commandments battle recalls the 2004 Alabama 10 Commandments battle and the 1980 Kentucky 10 Commandments battle.
Kentucky required the posting of the 10 Commandments in public schools, but in a 5-4 decision (Stone v. Graham, 1980), the Supreme Court held that the law was an unconstitutional establishment of religion violating the First Amendment. The Court majority relied upon Lemon v. Kurtzman (1971), under which government involvement in religion is considered constitutional if it survives a three-prong test: (1) Does the policy have a secular purpose? (2) Does its principal or primary effect either advance or inhibit religion? (3) Does the policy foster excessive entanglement of government with religion? The Court majority said the 10 Commandments policy has no secular purpose (incredible, as the Decalogue is an integral part of our history and is the moral foundation of law) and is therefore unconstitutional.
In Alabama, Chief Justice Roy Moore had placed the 10 Commandments in the rotunda of the Judicial Building. Judge Myron Thompson in 2002 and the 11th Circuit in 2003 (Glassroth v. Moore), both relying upon the Lemon test, likewise held the 10 Commandments monument placed in the Judicial Building as unconstitutional. The Supreme Court declined to review the case.
One might think bringing the same issue before the same court is sure to bring the same result. But it is not the same Court. Not one of the justices who decided Stone v. Graham in 1980 is still on the Court; over the years the Court has grown more conservative and, in my opinion, has drawn closer to the framers’ understanding of the First Amendment. The so-called Lemon test, which the more conservative justices never accepted, was finally overruled in American Legion v. American Humanist Association (2019) and Kennedy v. Bremerton School District (2022). The Supreme Court no longer uses the Lemon test but instead determines the constitutionality of a religious policy based on the intent and practice of the founding fathers.
With this in mind, the Louisiana Legislature adopted a statute in 2024 requiring all public school classrooms to display the 10 Commandments. But U.S. District Court Judge John W. deGravelles has ruled that the new Louisiana law is “unconstitutional on its face,” ordering state education officials not to take steps to enforce it and to notify all local school boards of this decision. Louisiana Attorney General Liz Murrill appealed to the Fifth Circuit, which left the temporary injunction in place without deciding on its ultimate merits but narrowed the prohibition to include only the five school districts in which plaintiffs live. The attorney general is preparing a full appeal to the Fifth Circuit, and the Foundation for Moral Law will file an amicus brief in support of Louisiana and the 10 Commandments.
Much of deGravelles’ opinion was based on Stone v. Graham. But that decision was based on Lemon v. Kurtzman, which was overruled! When the first (Lemon v. Kurtzman) story of a building collapses, the second (Stone v. Graham) and third (Roake v. Brumley) stories collapse as well.
Judge deGravelles’ opinion said that the law favored religion because it “single[s] out the Decalogue for central display while declining to give preferential treatment to foundational documents like the U.S. Constitution, the Declaration of Independence, or the Magna Carta.” However, there’s a reason for that. No one is trying to censor the Constitution, the Declaration, or the Magna Carta. But the 10 Commandments are probably the most censored document in America! The Louisiana law does not give the 10 Commandments a preferred place; it simply restores the 10 Commandments to their rightful place alongside other documents.
Murrill will exercise her right to appeal, and we hope she will be successful in the Fifth Circuit and/or the U.S. Supreme Court. But outlandish decisions like this should remind us that the framers of our Constitution did not intend by Article III to create a judicial autocracy that can decide anything it chooses without accountability. The framers wisely placed an essential check on the power of the Supreme Court in Article III, Section 2: In a few types of cases, the Court has original jurisdiction. “In all the other cases before mentioned, the supreme Court shall have appellate jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” Congress has the power to limit the appellate jurisdiction of the Supreme Court!
In 2004 and 2005, while Alabama’s 10 Commandments battle was still fresh on people’s minds, U.S. Sen. Richard C. Shelby (R-Tuscaloosa) introduced S. 520, the Constitution Restoration Act, which provided that the Supreme Court did not have jurisdiction to review any matter concerning a federal, state or local officer’s “acknowledgment of God as the sovereign source of law, liberty, or government.” The bill further provides that “the district courts shall not have jurisdiction of a matter if the Supreme Court does not have jurisdiction to review that matter….” U.S. Rep. Robert Aderholt (R-Haleyville) introduced the same bill in the House.
The Constitution Restoration Act never made it to the floor for a vote, but perhaps it’s time to revisit it.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). You may contact him for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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