Court questions if Ten Commandments in classrooms are 'plainly unconstitutional'

The full panel of judges on the U.S. 5th Circuit Court of Appeals heard arguments Tuesday in a case that could require Louisiana public schools to feature posters with the Ten Commandments in every classroom.

Attorney Liz Murrill sought a rehearing with all 17 judges from the 5th Circuit after a three-judge panel ruled in June that the 2024 state law requiring the displays was “plainly unconstitutional.” A group of parents of public school students had filed a lawsuit against the state to block the law, which includes the text of a Protestant version of the Ten Commandments, from being enforced.

The case, Roake v. Brumley, could hinge on whether the law violates the First Amendment’s Establishment Clause, which prohibits governments from endorsing a specific religion. Whether a comparable law in Texas takes effect will likely depend on the outcome of the Louisiana case.

The plaintiffs in the case are represented by the American Civil Liberties Union, Americans United for Separation of Church and State and the Freedom from Religion Foundation. Judges grilled their lawyers with questions about basing their arguments on the long-standing precedent from the case Stone v. Graham, a 1980 ruling from the U.S. Supreme Court that overturned a similar law in Kentucky. Justices decided then that the First Amendment bars public schools from posting the Ten Commandments in classrooms.

Some 5th Circuit judges said they believe the Stone decision was effectively nullified because it relied on a precedent from the 1971 case Lemon v. Kurtzman, which the Supreme Court overturned in 2022. The so-called Lemon test has been applied for five decades to decide what amounts to a violation of the Establishment Clause.

The 2022 case, Kennedy v. Bremerton, involved a Washington state high school football coach who was fired for praying at midfield after games and allowing students to join him. Joseph Kennedy got his job back after conservative justices prevailed in a 6-3 decision, saying the post game prayers do not amount to a school endorsement of Christianity.

Attorneys for the plaintiffs told the 5th Circuit judges that the Kennedy decision might have overturned Lemon but did not nullify the Stone ruling. Still, some judges questioned how an 11-inch by 14-inch poster amounts to coercion of religious beliefs.

In a news conference after the nearly two-hour hearing, Murrill expressed confidence in the state’s arguments but predicted the case is likely headed to the Supreme Court regardless of the 5th Circuit’s decision.

“We believe that you can apply this law constitutionally,” Murrill said.

Gov. Jeff Landry, who attended Tuesday’s hearing, called the Ten Commandments one of the nation’s foundational documents.

“I think Americans are just tired of the hypocrisy,” Landry said. “I just think that it’s high time that we embrace what tradition and heritage is in this country, and I agree with the attorney general. I like our chances.”

The Rev. Jeff Sims, one of the plaintiffs and a Presbyterian minister in Covington, issued a statement after the hearing saying he wants to be the one to decide on the religious education that his children receive.

“I send my children to public school to learn math, English, science, art, and so much more — but not to be evangelized by the state into its chosen religion,” Sims said. “These religious displays send a message to my children and other students that people of some religious denominations are superior to others. This is religious favoritism and it’s not only dangerous, but runs counter to my Presbyterian values of inclusion and equality.”