.png)
On the Merits of the Ten Commandments: Religion and Public Education
By Trevor Esper
The Fifth Circuit, in Roake v. Brumley, recently allowed Louisiana to proceed with placing the Ten Commandments in classrooms. Around the same time, Judge Brooks of the Western District of Arkansas issued a permanent injunction against a similar Arkansas law.
The Fifth Circuit issued a unanimous decision in Roake v. Brumley. The court reasoned that the issue was not ripe for lack of facts and that the mere display of the Ten Commandments did not violate the Establishment Clause. Judge Ho’s concurrence, discussed here, addressed the merits of the claim and stated that, based on the history and tradition of the United States, there is no instance in which a mere display of the Ten Commandments would violate the Constitution. The concurring opinion was adamant that, historically, religion was one of the main parts of a child’s education. More recently, the Fifth Circuit released an en banc opinion in Nathan v. Alamo Heights written by Judge Kyle Duncan upholding a similar Ten Commandments display law in Texas.
Judge Timothy Brooks ruled against the state of Arkansas in Stinson v. Fayetteville School District, ending the ability of Louisiana schools to display the Ten Commandments. The law in this case, Act 573, aligns almost identically with the law the Fifth Circuit ruled on in Roake. The law only requires that the Ten Commandments be displayed in the classroom and does not require teachers to affirm their belief in, discuss, or recite them to their students. Yet, Judge Brooks claimed that there is no reason to display the Ten Commandments other than to establish Christianity as Arkansas' faith and to proselytize students. He argues that the law is coercive without any actual showing of coercion. According to the Stinson opinion, the mere display of the Ten Commandments is coercive, even though the law does not require any sort of teaching on the Ten Commandments.
The order further states that there is no historical tradition of a permanent display of the Ten Commandments in public schools. Yet, the display was common until 1980, when the Supreme Court ruled that it violated the Constitution in Stone v. Graham. That case relied on outdated precedent that Kennedy v. Bremerton overturned, in which the Court ruled that the Lemon test was “long abandoned” and had been replaced by a history-and-tradition test for Establishment Clause cases. The Arkansas court makes the mistake of claiming a classroom display is different than a general school display. While some states, like Kentucky, had displays in every classroom before Stone, other states had general school displays.
The Stinson order further claims that, even if there is a tradition of displaying the Ten Commandments, it does not matter because the law is coercive. The court accepts that a display of general moral precepts is coercive because the language used is apparently offensive and contrary to the faith values of some of the plaintiffs. The court reasoned, supposedly in reliance on Kennedy, that the mere display is problematically coercive because students must engage with it every day, keeping the Ten Commandments in their presence. This reasoning does not logically follow from the Kennedy decision. In Kennedy, the football players would see the coach praying after every game, and the Supreme Court explicitly rejected the argument that the mere presence of prayer somehow coerced student engagement in the prayer.
The order in Stinson correctly states that the Kennedy decision held that forced religious speech is still problematic. The issue here is that the order calls a mere display, one that requires no affirmation, speech, or acknowledgment from the teachers, "coercive speech." The “coercive speech” rule is correctly stated but obviously misapplied. His claim that “the display in every classroom without exception” is coercive would mean that Coach Kennedy's post-game prayer would have also been coercive.
The crux of the Stinson order is that Stone v. Graham remains good law, despite its sole reliance on the overruled Lemon test. The reasoning is that, in Kennedy, the court discussed two Lemon test-era cases favorably, but this seems to be a case of a court simply seeking a way around the Court’s decision in Kennedy, which has clearly and entirely overruled Lemon. The reasoning in this case is the same as that which was squarely rejected in the 5th Circuit and will likely be overturned by the 8th Circuit when the Stinson order goes up on appeal. However, if a circuit split does occur because of this case, perhaps these two cases will lead to a U.S. Supreme Court case ruling on the constitutionality of displaying the Ten Commandments in the coming years.
