The year was 1980. In the 5-4 Stone v. Graham decision, the U.S. Supreme Court ruled that a Kentucky law requiring the display of the 10 Commandments was unconstitutional.
The Court based its decision on the so-called “Lemon test,” drawn from the 1971 Lemon v. Kurtzman decision involving government aid to private religious schools. The Court held that when government is involved with religion, that involvement is justified only if the government establishes that the government action (1) has a secular purpose; (2) has a primary purpose or effect that neither advances nor inhibits religion, and (3) does not foster excessive entanglement with religion. The Court said the preeminent purpose for posting the 10 Commandments on schoolroom walls was religious, because it could “induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” Of all cases decided under the Lemon test, Stone v. Graham was probably the most extreme and irrational.
But the Court’s position on Establishment Clause cases is much different today. The shift was noticeable in the 2005 Van Orden v. Perry decision, in which the Court upheld a 10 Commandments display on the Texas capitol lawn. “Of course, the Ten Commandments are religious,” Chief Justice Rehnquist said. “But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning.”
The Court’s shift toward greater recognition of the role of religion in public life became more apparent in American Legion v. American Humanist Association (2019), in which the Supreme Court upheld as constitutional a large cross in Bladensburg, Md., placed around 1920 to honor area soldiers and sailors killed in World War I. Ignoring the Lemon test, the Court majority relied upon the historical practice of erecting crosses in public places and the prominent role of the cross in military cemeteries and military medals, symbolizing sacrifice and valor. And in Kennedy v. Bremerton School District (2022), a case involving a high school coach’s prayer after a football game, the Court cited the American Legion case, noting that “this Court long ago abandoned Lemon,” and held that, “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
None of the five Justices who struck down the 10 Commandments display in Stone v. Graham 44 years ago are on the Court today, and the Lemon test those Justices relied upon has been expressly overruled in favor of “historical practices and understandings.” So Alabama’s 2018 constitutional amendment allowing public display of the 10 Commandments and Louisiana’s 2024 statute requiring the posting of the 10 Commandments in public schools will be analyzed not under the ill-begotten and now-overruled Lemon test, but “by reference to historical practices and understandings.” And the 10 Commandments’ history as the moral foundation of law is solidly attested by fact.
As I note in “Historical and Theological Foundations of Law,” when St. Patrick evangelized Ireland in the AD 400s, he left with each church an old Celtic law book, “Liber ex Lege Moisa” (The Book of the Law of Moses), which began with the Ten Commandments. In AD 890, when King Alfred the Great drafted the Book of Dooms, the first written legal code to govern all England, he began his law code with the Ten Commandments.
In the 1500s, Martin Luther regarded the Decalogue as the perfect expression of the law of nature:
Natural law is the Ten Commandments. It is written in the heart of every human being by creation. It was clearly and comprehensively put on Mount Sinai, finer indeed than any philosopher has ever stated it. Natural law, then, is created and written in the heart; it does not come from men but is a created Law to which everyone who hears it cannot but consent.
We call the 10 Commandments the moral foundation of law because they summarize the basic principles upon which Western law is built: respect for life, respect for property, respect for truth, respect for family and respect for God. In future articles, we will see how the 10 Commandments embody each of these principles and preserve them for future generations.
Col. Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (www.obcl.edu) and as Senior Counsel for the Foundation for Moral Law (www.morallaw.org). You may contact him 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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