Separation of Church and State May be on the Line

The State of Louisiana, with the help of a Republican majority legislature, is in the process of approving the posting of the Ten Commandments in K-12 and public college classrooms. As often happens, critics are claiming that this action violates the Establishment Clause of the Constitution:

The First Amendment's Establishment Clause prohibits the government from making any law ‘respecting an establishment of religion.’ This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.

For many years, anti-religion critics have said that actions like this one from Louisiana represent the establishment of religion. The fact is, nothing related to posting the Ten Commandments warrants this label. The governor has explained why the posting should be acceptable in schools:

GOP state Sen. Jay Morris said Tuesday that ‘the purpose is not solely religious to have the Ten Commandments displayed in our schools, but rather its historical significance.’ He went on to say that the Ten Commandments is ‘simply one of many documents that display the history of our country and the foundation for our legal system.’

The law also ‘authorizes’ — but does not require — the display of the Mayflower Compact, the Declaration of Independence and the Northwest Ordinance in K-12 public schools.

One lawmaker stated that there were many more “historical documents” that could have been used. But his comment misses the point that the Ten Commandments are one of the most significant documents in the founding of our country. The sponsor of the bill, Dodie Horton, explained her proposal this way:

‘This is not preaching a Christian religion. It’s not preaching any religion. It’s teaching a moral code,’ Horton said during a committee hearing in April. Last year, the lawmaker sponsored another law that requires all schools to display the national motto ‘In God We Trust’ in public classrooms.

Our religious heritage is represented in several places in our nation’s Capitol, including “In God We Trust,” which is displayed prominently in the House of Representatives and Senate Chambers.

In 1980, there was a similar case from Kentucky at the Supreme Court, Stone v. Graham. For this case, the Lemon test was applied:

In Lemon v. Kurtzman (1971), the Supreme Court held that (a) a ‘statute must have a secular legislative purpose’; (b) ‘its principal or primary effect must be one that neither advances nor inhibits religion’; and (c) the statute cannot promote ‘an excessive government entanglement with religion.’ If any of the points are violated, the statute must be ruled unconstitutional.

More recently, however, the Supreme Court decided that a Washington state school violated the First Amendment rights of their football coach, Joe Kennedy, when he recited prayers at games. Justice Gorsuch made the following statement:

‘Respect for religious expressions is indispensable to life in a free and diverse Republic – whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head,’ Gorsuch wrote.

Effectively, the Lemon test has been put aside. With the results of the Kennedy case, future SCOTUS cases may have the following outcomes:

So, in the future, the Court will consider whether the Framers of the Constitution would have regarded the state actions as an establishment of religion.

Now, with the Lemon test officially rejected, it's fair to ask whether, under this alternative test based on ‘historical practices and understandings,’ a state could require a culturally and historically significant document, like the Ten Commandments, to be posted in public school classrooms.

I am especially encouraged to think that Louisiana's action will inspire a movement to clarify "separation of church and state," once and for all. Also, please note this statement: It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Do you think the secular atheists have gone too far?

If Governor Morris signs this law, it will be a victory for freedom.