Despite protestations of opponents not quite up on things, as long as Louisiana treads carefully a bill working its way through the Legislature will have the practical effect of displaying a legal-paper-sized copy of the Ten Commandments in every public school classroom, and even some private school ones, from kindergarten on up and deemed constitutional.
HB 71 by Republican state Rep. Dodie Horton would mandate this. The bill states that they can use public funds or accept donated copies. Further, any private school that accepts state funds, which at present would be some nonpublic elementary and secondary education schools and perhaps even private colleges, would be subject to the same. The bill passed the House of Representatives with few dissenters and now moves along to the Senate.
Misperceptions about the issue abound. For one thing, two states already have such laws in place (and several others are considering these). Less demonstrative is North Dakota’s, now three years old, which simply states that local school boards can order this along with a display of other historical documents. In place for about a couple of decades, South Dakota’s leaves open in the public school system the authority to place a copy as long as it is not too conspicuous, giving the option the post other documents of cultural, legal, and historical significance as well.
Importantly, none of these laws have been challenged constitutionally. This is because of the evolving jurisprudence behind the First Amendment and religion. Until the 1970s, the Constitution wasn’t considered to inhibit posting the Ten Commandments, but then U.S. Supreme Court decisions first declared religious expression that didn’t have an obvious secular purpose were banned, then specifically applied that to the Ten Commandments. That became relaxed in 2005 when the Court decided that a passive display if inconspicuous enough met the test of secularity. Recently, the court ruled that secularity wasn’t abrogated if the sufficiently inconspicuous expression occurred at a state sanctioned event on state property even if funded by state taxpayers.
HB 71 does go further, in three ways. First, it makes no mention of other documents, whose presence can dial back the conspicuousness of the display. The bill does put some parameters in place to limit that with the reasonable small minimum size, but that still would leave room for displays that could be deemed conspicuous if not clustered with other similar-sized secular objects.
Second, it requires display, but off-handedly. The exact language says authorities may use public funds to construct copies or accept donated legal versions, but does not state they must choose either of these routes. This attempts to tie not too blatantly tax dollars spent compulsorily to trigger religious expression. Because of this inability to mandate spending on that, technically this could leave a legal limbo where an authority doesn’t spend funds to purchase these so these wouldn’t get posted, yet the law requires them to do it. However, the legal escape here is the donation acceptance language. Practically speaking, if an authority has a donation offer, it would have to accept that if it’s unwilling to spend the money, and undoubtedly plenty of organizations sympathetic to the bill’s intent will step in with donated versions meeting the law’s criteria and essentially force any and all balky authorities into posting up.
Third, the requirement extends to nonpublic education entities. However, as these are under no compulsion to accept state funds – such as schools participating in the state’s voucher program for students from low-income backgrounds in underperforming schools – that causes the extension, it can be argued that this is not compulsorily forcing these entities into expression.
As currently constituted, the bill becoming law would provide an interesting test case that would be much more likely that the existing Dakotas laws to draw litigation. Even so, ultimately it would stand a good chance of being upheld by the judiciary. Still, one improvement could be a severability clause in case a hypothetical court decision found a part but not all of it unconstitutional.
But if legislators wanted to skip that possibility, either they would have to alter the bill or depend upon the Board of Elementary and Secondary Education to develop implementation rules, as the bill instructs, that do the same. These could add criteria such as additional documents for display.
Regardless, the bill appears on course to break new legal ground, whether it ends up in litigation. For that reason it potentially is momentous – for those who haven’t been paying attention, Horton already helped to put God back in classrooms last year with what would become Act 264 that mandated the display of “In God We Trust” as the national motto – and worthy of passage.
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