The law is clear that government-sponsored religious activities in public schools, such as Ten Commandments displays, are unconstitutional. On November 18, a federal judge followed this law and declared unconstitutional a Texas statute requiring the display of the Ten Commandments in public school classrooms. In June, the United States Court of Appeals for the Fifth Circuit unanimously declared unconstitutional a similar Louisiana law. But conservatives keep trying to advance religion in the hope that the Supreme Court will change its mind and allow such displays.

The Ten Commandments are inherently religious. The Torah says that they were given to Moses by God at Mt. Sinai. Although many religions embrace them, they also have different versions. The Catholic, Protestant, Jewish, and Muslim versions of the Ten Commandments vary, often reflecting major theological disputes. But all include religious commands, such as not taking the name of God in vain and observing the Sabbath.

Those who favor the Ten Commandments in classrooms do so as an unabashed goal of advancing religion, and especially Christianity. Texas Attorney General Ken Paxton, an advocate of the Texas law, recently declared: “America is a Christian nation, and it is imperative that we display the very values and timeless truths that have historically guided the success of our country.” But the Establishment Clause means that governments in the United States, including public schools, cannot advance Christianity or any particular religion or even religions generally.

The Ten Commandments in the Supreme Court

In the early 1960s, the Supreme Court ruled that prayer in public schools, even voluntary prayers, violates the Establishment Clause of the First Amendment, which prevents the government from adopting any law respecting the establishment of religion. The Court stressed that public schools must be secular and subsequently declared unconstitutional clergy-delivered prayers at public school graduations, student-delivered prayers at high school football games, and silent prayers at the beginning of school days.

In 1980, in Stone v. Graham, the Supreme Court declared unconstitutional a Kentucky law that required the Ten Commandments to be posted on the walls of every public school classroom. The Court concluded that the law “has no secular legislative purpose” and therefore violated the Establishment Clause. Until and unless the Supreme Court overrules Stone v. Graham, it is binding precedent on lower courts and unquestionably makes Ten Commandments displays in public school classrooms unconstitutional.

The Supreme Court has decided two other cases about Ten Commandments displays, both in 2005, although neither involved public schools. In McCreary County, Kentucky v. ACLU of Kentucky, the Court, by a 5-to-4 decision, ruled that Ten Commandments displays in Kentucky county courthouses were unconstitutional because the government had the impermissible purpose of advancing religion. The counties initially required the posting of the Ten Commandments, but when sued, changed this to mandate ten displays, all of the same size, about the role of religion in American history. The Supreme Court, in a majority opinion by Justice David Souter, stressed that the Ten Commandments are profoundly religious and that there is no secular reason for their display.

The other case from 2005, Van Orden v. Perry, has a fascinating history in which I played a role. Thomas Van Orden had been a lawyer, but lost his law license and became homeless. He spent his days in the Texas State Capitol and the Texas Supreme Court building. The two buildings are together, perpendicular to one another, in Austin, Texas. Between them sits a six-foot-high, three-foot-wide Ten Commandments monument. It was one of many similar monuments placed across the country in the 1960s by film producer Cecil B. DeMille in order to promote his movie, The Ten Commandments. 

Van Orden believed that this display violated the Establishment Clause and filed a lawsuit in federal district court. He litigated the matter himself, unsuccessfully, in federal district court and the federal court of appeals. One afternoon, when I was in my office at the University of Southern California Law School, I received a collect call from Thomas Van Orden. He asked if I would take his case to the Supreme Court. I did, and we lost 5-4.

Chief Justice Rehnquist wrote a plurality opinion joined by Justices Scalia, Kennedy, and Thomas, and declared that the government may place religious symbols on government property. Justice Breyer concurred in the judgment and stressed that the presence of the monument for over 40 years, the surrounding secular displays and monuments, and its donation by the Fraternal Order of Eagles (paid for by DeMille) all convinced him that the government was not impermissibly symbolically endorsing religion.

In trying to make sense of these decisions, it is important to remember that only one Justice — Stephen Breyer — saw a distinction between the Kentucky displays and the Texas monument. Four Justices — Rehnquist, Scalia, Kennedy, and Thomas — would have upheld both displays. Four Justices — Stevens, O’Connor, Souter, and Ginsburg — would have invalidated both. Only Breyer was in the majority, both in striking down the Kentucky display and in upholding the Texas monument.

Will the Supreme Court change its mind?

The two decisions from 2005 reflected the strong disagreements among the justices about the meaning of the Establishment Clause. As the composition of the Supreme Court has changed to become decidedly more conservative, especially with the addition of three justices appointed by President Donald Trump, there is less disagreement among the justices. They have taken a much more lenient approach to the Establishment Clause.

In 2019, in American Legion v. American Humanist Association, the Court considered the constitutionality of a 40-foot cross that sits on public property in Prince George’s County, Maryland. The cross was erected in 1920 as a memorial to those who died in military service in World War I. Justice Samuel Alito wrote for the Court’s majority, stressing that although a cross is a religious symbol, it also has other non-religious significance, including as a memorial for war dead.

In June 2022, in Kennedy v. Bremerton School District, the Court held that it was not a violation of the Establishment Clause for a high school football coach to pray on the center of the field after games, often with his players joining him. In fact, the Court, in an opinion by Justice Neil Gorsuch, concluded that prohibiting the coach from doing so would violate his First Amendment rights to freedom of speech and free exercise of religion.

 The Court said that in deciding whether there was a violation of the Establishment Clause, it no longer would look to whether the government action had a secular purpose or whether its effect was to advance or inhibit religion. Instead, the Court said that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” The Court said that “the line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.”

It is absurd to ask what the Founding Fathers thought about posting the Ten Commandments in public schools because there were no public schools as we know them now. My hope is that the Supreme Court will adhere to the rule that has been followed for over 60 years: government-sponsored religious activities in public school classrooms are unconstitutional.

Texas Attorney General Paxton is just wrong: our government has no religion. The Constitution commands that it must be secular. The Ten Commandments are inherently religious, and requiring their posting in public schools is, and should be, unconstitutional.