Prof: GOP seizes on SCOTUS' "very accommodating view of intrusion" of Christianity in public spaces – Salon

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Louisiana just became the first state to require public schools to display the Ten Commandments in classrooms — and constitutional law experts are sounding the alarm. 
Republican Gov. Jeff Landry signed the legislation, HB-71, into law Wednesday, requiring all public schools, from kindergartens to state-funded universities, to display a poster — no smaller than 11 by 14 inches — of the Decalogue, using language and an arrangement hand-picked by the legislature, in "large, easily readable font" in each classroom.
“If you want to respect the rule of law, you’ve got to start from the original law giver, which was Moses," Landry said during the bill signing Wednesday at Our Lady of Fatima Catholic School in Lafayette (just seconds after a child collapsed behind him).
The move marks the latest effort from Louisiana's GOP-controlled legislature to usher in a conservative era following two-term Democratic Gov. John Bel Edwards' departure in January, according to CBS News. 
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But the bill is "transparently unconstitutional under existing precedent" and "clearly" tied to the "Republican 2025 platform and the effort to turn the United States into a Christian nationalist state," argued Catherine Ross, a constitutional law professor specializing in the First Amendment at George Washington University. 
"Legislators and other politicians often ignore clear rulings that what they are doing violates the Constitution," Ross told Salon. "They do so in order to posture, gain political points, and challenge the court to overturn their actions."
Proponents of the new law argued that the provision has historical significance, with the text itself even declaring that the Ten Commandments are "foundational documents of our state and national government."
“The purpose is not solely religious,” Republican state Sen. Jay Morris said earlier this year, according to Nola.com. Instead, the purpose lies in the Ten Commandments' "historical significance, which is simply one of many documents that display the history of our country and foundation of our legal system," he argued.
Republican state Rep. Dodie Horton the bill's author, also previously defended the legislation, arguing at a House debate in April that the Ten Commandments form the "basis of all laws in Louisiana" and the legislation honors the nation's religious beginnings, according to the outlet.
“I’m not concerned with an atheist. I’m not concerned with a Muslim,” she responded to a question about teachers who may not adhere to the Ten Commandments. “I’m concerned with our children looking and seeing what God’s law is.”
But precedents about religious symbols and holiday declarations provide clear guidance that rebuts the defense of the law, Ross said. "Posting the Ten Commandments as part of a historical or cross cultural display of, for example, various moral codes, would pass muster. When displayed on its own, it communicates this is the official doctrine."
The posters mandated in the new Louisiana law will feature a four-paragraph "context statement" describing how the Ten Commandments "were a prominent part of American public education for almost three centuries" and must be hung in classrooms by the beginning of 2025. The state will not provide funding for the posters and instead expects donations to foot the bill for the signs.
The law also "authorizes" but does not mandate the display of other texts, including the Declaration of Independence; The Mayflower Compact, a document often dubbed America's "First Constitution" signed by religious pilgrims aboard the Mayflower in 1620; and the Northwest Ordinance, which established a government in the then-Northwest Territory and established a path for states admission into the Union.
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Caprice Roberts, a professor of constitutional law at Louisiana State University, told Salon that the law is "troubling" because requiring every classroom to post the Ten Commandments raises the potential of having "coerced captive audiences of young children" and students who will have to see them.
"The argument, certainly by the ACLU and other groups who I'm sure are already launching litigation challenges, will be that that's flatly in violation of the U.S. Constitution, the First Amendment, separation of church and state," she predicted, noting that those arguments would hinge on legal precedent like Stone v. Graham.  
The Supreme Court in the 1980 Stone v. Graham decision deemed a similar Kentucky law regarding the Decalogue unconstitutional and a violation of the Constitution's establishment clause, which bars Congress from making any law "respecting an establishment of religion" or prohibiting the free expression. The 1943 case of West Virginia State Board of Education v. Barnette, which pertained to the Pledge of Allegiance, also serves as "solid precedent," Roberts said, noting the new Louisiana measure "clearly concerns the first part" of the establishment clause, "but it also could affect the second." 
"In terms of the establishment and keeping that strict wall between church and state, we have very strong precedent in that area," she said. "But there's been some wonder as to whether the Supreme Court may be moving a bit in terms of the traditional tests [for evaluating establishment clause cases] that existed under the Lemon case, which has now been basically abandoned with Justice [Neil] Gorsuch in the Bremerton case." 
The 2022 Supreme Court Kennedy v. Bremerton School District ruling, which revolved around the district firing a public high school football coach for kneeling in personal prayer after games, ruled that the First Amendment protected an individual from government discipline for engaging in personal religious expression. While the case could have been interpreted as a separation of church and state or establishment clause case, Roberts said, the court's majority opinion, authored by Gorsuch, viewed it, instead, through the lens of an individual's right to free exercise and expression. 
"Some have said that's the beginning of the unraveling of Church and State as a precedent that respects the separation between states," she continued, noting that others argue the Bremerton decision also didn't fully endorse mandated recitation of prayer or religious displays in public schools either. But, Roberts said, the Bremerton ruling did demonstrate the court's interest in assessing establishment clause cases via "history and tradition" and "that being a part of the jurisprudence of the court now." 
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Other states like Texas, Oklahoma and Utah have seen similar proposals seeking to require the display of the Ten Commandments in classrooms, but those floundered due to threats of legal battles of such measures' constitutionality. 
Landry, on the other hand, made clear before signing the bill that he expected — and welcomed — pushback from HB-71 opponents, telling the audience at the Tennessee Republican Statesmen's Dinner over the weekend that he "can't wait to be sued."
The American Civil Liberties Union, in conjunction with Americans United for Separation Church and State, and the Freedom from Religion Foundation, declared their intention to file a lawsuit challenging the new law in a joint statement Wednesday. 
“The law violates the separation of church and state and is blatantly unconstitutional,” the groups said in a joint statement Wednesday. “The First Amendment promises that we all get to decide for ourselves what religious beliefs, if any, to hold and practice, without pressure from the government. Politicians have no business imposing their preferred religious doctrine on students and families in public schools.”
Roberts said she expects to see the challengers request an injunction to block the law from going into affect immediately — a move Ross noted isn't always immediately effective such as in the history of school integration after Brown v. the Board of Education. 
If a case against the Louisiana law, such as the anticipated complaint from the ACLU that is poised to eventually land before the justices, reaches the Supreme Court, the court is expected to defer to a history and tradition test to analyze whether HB-71 violates the establishment clause, Roberts said.
The justices may then find that the Ten Commandments were posted in public schools throughout the 19th century and well into the 20th, which was before contemporary establishment clause jurisprudence, Ross said.
Such an outcome, she added, offers another potential reason Louisiana Republicans pushed the legislation: "the hope that the current Supreme Court – which takes a very accommodating view of the intrusion of Christianity into public spaces – may take posting of the Ten Commandments as an opportunity to further undermine the separation of church and state."
But because the Supreme Court has previously decided in favor of related cases — like Bremerton and Masterpiece Cakeshop v. Colorado Civil RIghts Commission — with attention to the complaints of individuals and their individual rights to free expression, a suit challenging the new law coming from an individual within Louisiana's public school system using the same legal basis is also something to watch for, Roberts said.
"We really stand at a constitutional crossroads," she added. "One would hope that there will be protection and this fundamental right will remain, the separation of church and state and the establishment clause itself."
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Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.
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