Don’t Force the Ten Commandments Out of the Classroom

I n an attempt to purge America’s public schools of any trace of belief in the supernatural, the American Civil Liberties Union, the Freedom from Religion Foundation, and Americans United for Separation of Church and State have sued, “on behalf” of a group of parents and students, the state of Louisiana. Their goal: to ban the state from displaying the Ten Commandments in its public schools. This is an ill-conceived endeavor with a silver lining: If they lose, we may all benefit from having clarifying case law on the books. With the case now before the Fifth Circuit Court of Appeals, there is a promising opportunity to restore religion to its rightful and historic significance in American public life.

We submitted a “friend of the court” brief in support of Louisiana, explaining that exposing young learners to the Ten Commandments is a far cry from government establishment of religion. On the contrary, it is entirely in accordance with the wishes of America’s founders, individuals of notably diverse religious convictions. We add that banning the display of the Commandments because of their religious origin signifies a hostility to religion and offends the general nondiscrimination principles of the Constitution.

A quick history lesson is in order — and it may surprise you. None of America’s founders supported a “high and impregnable” wall of separation between church and state. Even Thomas Jefferson, who in 1802 wrote to the Danbury Baptist Association suggesting that the First Amendment created a “wall of separation between Church & State,” did not act as if any such wall existed — certainly not one that prohibited any recognition of religion in the public square. And what Jefferson did not completely exclude, most Founders embraced.

Many civic leaders and jurists have viewed the Ten Commandments as one of the foundations of American law, particularly with respect to the admonition to “remember the sabbath day, to keep it holy” (Exodus 20:8). As late as 1961, 49 of 50 states had laws requiring businesses to close on Sunday. While the Ten Commandments were not cited at the Constitutional Convention, the convention met every day of the week except Sunday, and delegates assumed that Congress would not conduct business on Sunday, as noted in Article I, Section 7, Clause 2 of the Constitution.

To avoid any claim that its mandate preferred one religion over the other, Louisiana lawmakers adopted a version of the Ten Commandments not specific to any particular religious group. While a lower court, relying on flawed information, thought that the law mandated a Protestant version of the Commandments, we demonstrate that the version is nonsectarian. The Louisiana law also requires that they be displayed with a “context statement” that notes that the Commandments have long been a prominent part of American public education.

Until the 20th century, the federal government had little to do with K–12 education, except when it came to Native Americans. The federal government routinely partnered with Christian missionaries to run and teach in these schools. It’s safe to assume that those schools taught the Ten Commandments, not as cultural heritage but as religious truth. And when states finally got involved in running public schools in the mid-19th century, one of their major goals was to inculcate morality, including through religious texts such as the Ten Commandments.

Disappointingly, an old case from an era in which the Supreme Court misunderstood and trivialized religion, Lemon v. Kurtzman (1971), continues to haunt us despite being recently abrogated by the Court. As seen in the lower court’s misguided review of the Louisiana law, Lemon and its progeny still confuse some judges. Lemon called for an examination of a law’s purposes, effects, and potential for entanglement with religion and was applied by the Court in Stone v. Graham (1980) to strike down a Kentucky law mandating the display of the Ten Commandments in public school classrooms.

But by 2005, when the Supreme Court upheld one Ten Commandments display and invalidated another, Stone was on shaky ground as precedent. The Louisiana display uses the same text as the one the Court upheld in Van Orden v. Perry nearly two decades ago, and today’s originalist Court has been even more accommodating of religious symbols. Freed from the limitations of Lemon, most justices now judge not by their own policy preferences but “by reference to historical practices and understandings.”

In 2019, for example, the Court held that the “Peace Cross,” a 40-foot concrete and granite cross commemorating the dead of World War I that stands on public property in Bladensburg, Md., did not violate the establishment clause. Interestingly, Justice Samuel Alito, writing for the Court’s majority, pointed to the Ten Commandments to bolster the Court’s decision: “For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation’s capital.”

The Supreme Court is right that courts should be “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Unlike mandatory religious exercises, the Louisiana law stipulates only that the Ten Commandments be displayed. Students are not compelled to recite them, study them, look at them, or do anything else with them; nor are teachers required to read them aloud to their pupils.

Instead of relying on ahistorical tests, the Fifth Circuit should look to the mountain of robust historical evidence supporting the display of the Ten Commandments in schools. Further, offering schoolchildren the opportunity to consider their role in the history of the nation and the world displays admirable tolerance toward those faith traditions that embrace them. As the Supreme Court recently noted, “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’”

Andrea Picciotti-Bayer is the director of the Conscience Project. Mark David Hall is a professor in Regent University’s Robertson School of Government and the director of Religious Liberty in the States, an annual index.