Will the Supreme Court allow state governments to religiously indoctrinate students? | Opinion

Under current law, the newly adopted Louisiana statute requiring the Ten Commandments be posted in all public school classrooms is clearly unconstitutional. Unfortunately, however, the conservative Supreme Court’s recent decisions rejecting a clear separation of church and state leave the issue’s ultimate resolution uncertain.

In Stone v. Graham, in 1980, the Supreme Court declared unconstitutional a Kentucky statute that required the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the state. The court explained that posting the Ten Commandments in classrooms advances religion and has no secular purpose.

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“The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature,” the court said at the time. “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.

“If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”

Stone v. Graham has never been overruled by the Supreme Court and remains binding precedent for lower courts that will consider challenges to the Louisiana law. Lower courts must therefore must declare the law unconstitutional.

In Stone v. Graham, the high court based its decision on decades of precedent which had declared unconstitutional religious activities in public school classrooms. Beginning in the early ’60s, the court held that prayer in public schools — even when voluntary — is an impermissible establishment of religion.

There is also no doubt that the Ten Commandments are profoundly religious. Indeed, that is exactly why the Louisiana legislature wants them in classrooms. The Ten Commandments begin with the words, “I am the Lord Thy God.”

In a 2005 decision, McCreary County v. ACLU, the Supreme Court declared unconstitutional a Kentucky county ordinance requiring the Ten Commandments be posted in all county buildings, explaining that the Commandments are an “instrument of religion.”

All of this is clear, so why is the ultimate outcome of this current case in doubt?

In recent years, the Supreme Court has radically changed the law of the First Amendment’s Establishment Clause. For decades, the court followed a test it articulated in 1971 in Lemon v. Kurtzman, which held that a government action violates this provision if it lacks a secular purpose, if it has the effect of advancing religion or if it involves excessive entanglement with religion. In fact, the court’s Ten Commandment decisions in Stone v. Graham and McCreary County v. ACLU applied the first part of this test and concluded that there is no secular purpose for putting this religious text in classrooms or in government buildings.

But two years ago, in Kennedy v. Bremerton School District, the court said Lemon v. Kurtzman had been overruled. The court said its new test in deciding what violates the establishment clause is based on the “understanding of the Founding Fathers.” Based on this, the court concluded that a high school football coach had a First Amendment right to pray on the field after games.

The problem is that it is impossible to know what the “Founding Fathers” thought about Ten Commandment displays in public schools or football coaches praying on the field. Public schools as we know them now did not exist in 1791 when the First Amendment was adopted.

The current conservative majority appears to take the position that the government violates the Establishment Clause only if it coerces religious participation. From this perspective, Ten Commandments displays are permissible because they do not coerce behavior.

But this is a much too cramped way of understanding the Establishment Clause. In 1947, all nine justices agreed that it is best understood through a metaphor coined by Thomas Jefferson: That there should be a wall separating church and state.

The idea is that our government should be secular; the place for religion is in our homes and places of worship.

For 60 years, until the Kennedy decision two years ago, the Supreme Court found religious activities in public schools to be unconstitutional. Students are required to be there and it is not for the government to use schools to indoctrinate students in religion.

My hope is that the Supreme Court won’t overrule Stone v. Graham and that it will instead apply it to declare the Louisiana law unconstitutional.

Indeed, as Justice Sandra Day O’Connor observed in finding the Kentucky Ten Commandments displays unconstitutional: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.