What may end up frustrating the anti-religious Louisiana left is that, as any First Amendment scholar or practitioner will tell you, it’s not so much the law but its application that matters, a viewpoint the U.S. Supreme Coury likely will ratify.
Last week, Republican Atty. Gen. Liz Murrill issued guidance for Act 676 of 2024, what the mainstream media has nicknamed the “Ten Commandments” law. It expands to educational facilities a 2006 law that allows for posting a version of the Decalogue in courthouses and other public buildings as a means of informing about the origins of Louisiana’s laws.
The new law itself specifies text and formatting, and that each classroom must have a document of the Commandments meeting the criteria posted as of the start of this year. However, it doesn’t obligate any educational institution to purchase copies meeting the criteria, nor is there any punishment associated with not following the law.
Regardless, the state’s Department of Education was sued with participants within the jurisdictions of five school systems. Democrat Pres. Barack Obama appointee Middle Louisiana District Court Judge John deGravelles issued an injunction because in his opinion the law facially violated the Constitution, both its Establishment and Free Exercise clauses.
His decision relied heavily on a jurisprudence made stale by a more recent U.S. Supreme Court decision, and days later was limited by the Fifth Circuit Court of Appeals only to the five systems. It now sits on appeal to a Fifth Circuit panel.
All other systems at present must follow the law, and Murrill’s issuance assuredly makes any such display constitutional as current defined. It conforms to the content of laws in the Dakotas, which deGravelles failed to mention in his decision, that permit posting of the Commandments in education settings that haven’t been challenged legally. The difference in the Louisiana instance and these is that those laws require, if a system chooses to present the document, that the document must appear with other historical documents related to the founding of the U.S. on essentially equal footing, while Louisiana’s is permissive in whether to post those others.
In other words, Murrill’s guidance about displays means that systems following it would put themselves in a posture that opponents have declined to challenge as unconstitutional. It’s a longstanding part of First Amendment jurisprudence that even if laws seem unduly unrestrictive, as long as government doesn’t actually violate it in their application it’s not justiciable.
The opinion tries to change that by saying whether applied it’s unconstitutional, which is why the case is almost certain to reach the Supreme Court as it will want to have the final say on whether the jurisprudence it recently has changed in this area now negates this automatic rejection of any display of the Commandments in a classroom. Thus, Murrill’s action helps to cue up Louisiana’s law in a manner that the Court can find it constitutional, which would be the consistent if not correct thing to do.
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