Fifth Circuit: Actually, Putting The Ten Commandments In Schools Is Probably Fine

Last June, the Fifth Circuit Appeals Court upheld a lower court’s ruling declaring a Louisiana law mandating the posting of the Ten Commandments in public schools to be a violation of the Constitution.

This decision made immediate sense, given that courts elsewhere in the nation (including the US Supreme Court) had repeatedly ruled that laws like these destroyed the separation of church and state. These laws were extremely obvious violations of the First Amendment that elevated one particular religion to a position of prominence with the backing of government power.

That hasn’t stopped MAGA legislators from creating similarly unconstitutional laws around the nation. These opportunists are hoping to convert their Trump coattail-riding into local iterations of Trump’s white Christian nationalist efforts.

Last June may as well be a lifetime ago. In that ruling, the Fifth Circuit made it clear the law was nothing more than an unconstitutional way for the state government to shove its preferred deity down students’ throats.

The statute does not require that the Ten Commandments be integrated into a curriculum of study. On the contrary, under the statute’s minimum requirements, the posters must be indiscriminately displayed in every public school classroom in Louisiana regardless of class subject-matter. See La. R.S. § 17:2124(B)(1). Louisiana insists, however, that unlike Kentucky, its Legislature has a valid “secular historical and educational purpose” for displaying the Ten Commandments in classrooms, which is reflected in the statute.

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Louisiana’s purported legislative purpose states:
It is the Legislature’s intent to apply the decision set forth by the Supreme Court of the United States in Van Orden v. Perry, 545 U.S. 677 (2005), to continue the rich tradition [of including the Ten Commandments in the education of our children] and ensure that the students in our public schools may understand and appreciate the foundational documents of our state and national government.

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It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] state and national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font. La. R.S. § 17:2124(A)(9). When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext.

That was the court refusing to let Louisiana lawmakers have their cake and eat it too by pretending the Ten Commandments were both “optional” and essential to students’ instruction.

The en banc opinion [PDF] — released in late February — goes in a completely different direction. The majority somehow reaches the conclusion that the lawsuit is premature. It lifts the injunction preventing the law from taking effect. The court contorts itself to give Louisiana a free pass to post the Ten Commandments prominently in public schools by pretending it doesn’t know how this mandate will actually look in practice.

While H.B. 71 sets certain “minimum requirement[s]” regarding the text, size, and accompanying “context statement” of the displays, it leaves “[t]he nature of the display” entirely to the discretion of local school boards. La. Rev. Stat. § 17:2124(B)(1)–(3). That delegation and those minimum requirements—necessarily leave numerous essential questions unanswered. We do not know, for example, how prominently the displays will appear, what other materials might accompany them, or how—if at all— teachers will reference them during instruction. More fundamentally, we do not even know the full content of the displays themselves. Although the statute requires inclusion of the Commandments and a context statement, it expressly permits additional content—such as “the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance”—to appear alongside them. Id. § 2124(B)(4).

Simply put, we cannot evaluate “how the text is used,” Van Orden, 545 U.S. at 701 (Breyer, J., concurring in the judgment) (emphasis omitted), because we do not yet know—and cannot yet know—how the text will be used.

But we do actually know all of these things. And the Court does too, even if it has conveniently chosen to ignore the law to give the GOP what it wants yet again. (See also: this, this, this, this, etc.) As Rachel Lager — one of the attorneys representing the plaintiffs in this case — points out in her article for The Hill, the state’s lawyers and the bill’s proponents have already answered the questions the Fifth Circuit is now pretending are in need of further examination.

This law intends for the government (public schools) to convey that the words of the Ten Commandments — including “I AM the LORD thy God. Thou shalt have no other gods before me,” and “Remember the Sabbath day, to keep it holy” — are mandates for all children, regardless of whether they and their families are Hindu and believe in many gods or nonreligious and believe in none.

Lest there be any doubt that this law was written to proselytize students, state Rep. Dodie Horton (R), the law’s sponsor, told us so when she proposed the bill: “I’m not concerned with an atheist. I’m not concerned with a Muslim, I’m concerned with our children looking and seeing what God’s law is.” Judge James Dennis was on point in his dissent when he called the court’s reasoning “procedural artifice.”

That vast gap between the Fifth Circuit’s “narrow” holding and the facts on the ground likely explain why there’s only a single published concurrence and several dissents. The sole concurrence was written by Judge James Ho, who boldly, baldly declares Supreme Court precedent on the subject is “no longer good law,” despite the Supreme Court never having said so itself. Ho also says the lawsuit isn’t just premature, but entirely without merit.

Multiple dissents disagree. The first, written by James Dennis and co-signed by three other judges — says James Ho and the rest of the majority are wrong. Pretending Supreme Court precedent regarding the mandated posting of the Ten Commandments (via a Kentucky state law) is no longer relevant because the Supreme Court ruled in favor of a coach who was fired for engaging in post-game prayers with his players is deliberately ignoring the difference between state action and personal action in order to reach the conclusion these pro-Bible-down-your-throat judges had already decided was the correct ruling.

Bound by Stone v. Graham and its progeny, and mindful that we are not the Supreme Court, I conclude that permanently posting the Ten Commandments in every public school classroom, without curricular incorporation and with compulsory attendance, violates the Establishment Clause. Our court avoids confronting that conclusion only through procedural artifice. I dissent.

Another dissent points out what the state, its legislators, and the majority of Fifth Circuit judges have also chosen to ignore: that religious leaders don’t even want the state to do what it’s doing.

Indeed, every faith-based organization before us—on behalf of thousands of members—and every clergy and devout plaintiff agree that Louisiana must not pick and post specific scripture that the state commands will confront children in state classrooms. All religious voices submitted to us, barring one individual, oppose Louisiana’s attempt to select, inculcate, and enforce this version of gospel text in compulsory public education.

The only people left arguing for this are arguing in bad faith. Parents and religious leaders who pretend any instruction in anything they’re opposed to (gender issues, evolution, socialism, etc.) is a form of indoctrination are more than willing to sign off on literal government indoctrination so long as it’s the sort of indoctrination they like.

Even if the en banc court felt this might need more discussion, it should have erred on the side of plaintiffs. In choosing to do otherwise, it’s basically telling plaintiffs in the Fifth Circuit that their rights need to be violated first because they can start questioning the constitutionality of enacted laws. That’s insane. But it’s the sort of insane the Fifth Circuit is known for. The only question now is whether the Supreme Court still has enough honest justices left to reverse this obviously unconstitutional decision by the Fifth.