Document Type
Article
Publication Date
8-2025
Abstract
Legislators in conservative states are drawn to a belief that the Ten Commandments [“10/Cs”] underscore American’s moral, jurisprudential, and historical heritage. First the State of Louisiana, and thereafter Arkansas and Texas, enacted legislation requiring the posting of the 10/Cs in every public school and university classroom in the state. This quickly brought on legal challenges by students and their parents, along with a smattering of local clerics, together contending that these laws were unconstitutional, most prominently violations of the Establishment Clause. State attorney generals leaped to defend these statutes making the facial assertion that the 10/Cs are not so much religious as secularly grounded.
Being the lawsuit first in time, a preliminary injunction was issued against the Louisiana 10/Cs statute by a federal district court. That order was later upheld by a unanimous three-judge panel of the Fifth Circuit. Next to issue was a preliminary injunction by a federal district court in Arkansas, followed closely by a like disposition before a federal trial court in Texas. Pending is the State of Louisiana’s petition for rehearing en banc in the Fifth Circuit.
When enacting these 10/Cs laws, the legislatures made self-serving findings the gist of which is that the law’s purpose is moral and historical, not religious. On the other hand, the reviewing courts focused on the floor debate by bill sponsors, and even outside supporters, which profess Christian motivations. Both seem like wrong approaches. The 10/Cs are religious, at least in significant part. The “first tablet” is inherently and exclusively religious, declaring: the I AM is the one true God; he alone is to be worship, his name is not to be taken in vain, and finally the Sabbath is to be kept holy. The precedent for such a judicial finding is the same as when the school prayer cases of the 1960s made the obvious observation: prayer is inherently religious.
The most straightforward path to an Establishment Clause violation is to show religious coercion. Here, we deal with an unwanted government message to impressionable minors, all in a captive setting of mandatory school attendance laws. While the featured posters are entirely passive, the students are in their presence all day, five days a week, nine months out of the year. That’s coercion.
The newest path to an Establishment Clause violation is by reference to “history and tradition” at the founding. This late eighteenth century history is to yield a definition for the original public meaning of the forbidden “an establishment of religion.” The courts in Louisiana, Arkansas, and Texas instead looked to the early practices in America’s public schools—schools that didn’t even exist until the 1820s. That’s not the historical question pointed to by SCOTUS.
By SCOUTS guidance, these lower courts reached the right result but wrong rationale. So, we await the next memorandum opinion, this time by the entire active judges sitting on the U.S. Court of Appeals for the Fifth Circuit.
Recommended Citation
Carl H. Esbeck,
Louisiana's Ten Commandments Statute: With Litigation Updates from Arkansas and TexasUniversity of Missouri School of Law Legal Studies Research Paper No. 2025-40
(2025).
Available at: https://scholarship.law.missouri.edu/facpubs/1277