Despite a lawsuit by objecting parties, Louisiana’s Act 676 of 2024 is constitutional, but those responsible for administering it must not do so unconstitutionally.
This week, Republican Atty. Gen. Liz Murrill outlined why the suit brought shortly after GOP Gov. Jeff Landry signed the bill into law is defective. As such, she asked for dismissal of the suit alleging that mandated display of the Ten Commandments injects religious content into education in violation of the First Amendment. The state already has promised the displays won’t go up in five school districts before Nov. 15, although the law doesn’t come into effect until Jan. 1, 2025.
The law mandates that in all public education classrooms a copy of the Ten Commandments, taken from the text of a case where the U.S. Supreme Court decided that could be displayed on public property, be displayed along with designated text explaining the context that includes other important historical documents. The law also mandates that no public funds be expended to create the displays, where school districts or colleges may accept donated copies or donated funds to create the displays. It also suggests as part of the display adding the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance, all of which use religious referents.
Since it doesn’t go into effect until next year, Murrill pointed out that there is no actual controversy and thus the present suit must be dismissed. No affected entity as yet has complied early with the law, but presumably when that happens then a suit becomes pertinent.
Which, if the run of play in recent jurisprudence maintains, will result in upholding the law. As written, the law clearly places the Ten Commandments into historical context, validating the state’s contention that it doesn’t serve a religious purpose, even as it may possess religious content, thus bypassing various arguments made by the plaintiffs. And, contrary to popular myth within much of the media that proclaims this is exceptional, two states constitutionally already have such displays in classrooms, with the only difference being that having these are left to the discretion of local education agencies and the donation aspect.
Those two differences do present theoretical challenges. Possibly an entity won’t collect enough in donated materials or dollars to cover all classrooms, which then could put it in noncompliance. Or, rogue entities will refuse to do so and then enforcement is up in the air, as the law contains no mechanism to force this.
Still, the law itself should be upheld. Perhaps the education entities involved might apply it in an unconstitutional fashion, but only if they don’t follow it strictly. But there shouldn’t be anything intrinsic to it that makes it unconstitutional, the most recent evolution of understanding of the First Amendment demonstrates.
For about 35 years the Court practiced a dyadic understanding of religion and the public square where any religious connotation whatsoever disqualified display in a governmental context. That began to erode in 2005 when the Court in a case decided a separate historical context could exist specifically for the Ten Commandments, as in this instance the placement of the text (on a monument on the grounds of the Texas Capitol) had no history to it connected to proselytizing religious belief. Then in 2022, regarding a case where a football coach led voluntary prayers after games at midfield, the Court said conveyance of speech even if religious in nature at schools needn’t be considered automatically governmentally-backed, repudiating the so-called Lemon Test because it inherently assumed conflict, between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other, that needn’t be the case.
This indicates the Court seems ready to back, as part of its general educative mission relying on a presentation of historical context, the ability of the state to display a document with religious origins. But only it can tell that, so, making the highly probable assertion that some kind of challenge will manifest and losing parties will appeal, look for this Louisiana law to work its way into the jurisprudence of the First Amendment, one way or the other.
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