The Ten Commandments in Louisiana Public Schools: A Study in the Survival of Establishment Clause Norms

Abstract

In June 2024, Louisiana enacted legislation requiring the prominent posting of the Ten Commandments on the wall of every public-school classroom. In Roake v. Brumley, a federal district court decided that the requirement violated the Establishment Clause. Judge DeGravelles’ lengthy opinion followed the Supreme Court’s 1980 decision in Stone v. Graham, which invalidated a highly similar Kentucky law. Roake v. Brumley is now on appeal in the Fifth Circuit.

In this paper, we defend the result in Roake, with some proposed modifications. Central to our argument is demonstration of the continuing vitality of the Establishment Clause principles on which Stone rests. We explain that recent decisions, especially Kennedy v. Bremerton School District, have repudiated the “no endorsement” test, a widely disparaged extension of Establishment Clause concerns. But contrary to fears of some and hopes of others, neither Kennedy nor any other decision has abandoned longstanding constitutional norms -- government actions must have a predominant secular purpose; must not have the primary effect of advancing religion; and must avoid excessive entanglement with religion. Lemon v. Kurtzman will no longer be shorthand for these norms, but they endure on the authority of the School Prayer Cases (among others). Along the way, we clarify the limited role of “historical practices and understandings” in the application of these tests, and map the place of coercion in cases about school-sponsored religion.

Keywords: Ten Commandments, public schools, establishment of religion, free exercise of religion, religious liberty, First Amendment