Louisiana’s recent legislation requiring the display of the Ten Commandments in every public school classroom is likely unconstitutional under the current framework of the Establishment Clause, said an expert on law and religion at Washington University in St. Louis.
The key precedent for the current legislation, Stone v. Graham, was established in 1980 under a very different era of Establishment Clause jurisprudence, said John Inazu, the Sally D. Danforth Distinguished Professor of Law & Religion and an expert on the First Amendment.
“The Supreme Court’s more recent turn to history, text and tradition, especially in religion cases, suggests a more complicated inquiry,” Inazu said. “But it’s not clear to me that the Louisiana statute survives even under the newer framework.”
The Establishment Clause of the First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
“The insertion of the Ten Commandments into classrooms is not a longstanding monument or unbroken tradition,” Inazu said. “Moreover, the Louisiana legislation does not require any other non-religious documents or symbols to be installed alongside the Ten Commandments. The surrounding context has been determinative in other Establishment Clause challenges to public displays of the Ten Commandments and other religious symbols.”
Inazu said he would not be surprised, however, if other states follow Louisiana’s lead.
“At the very least, as this legislation is challenged in the courts, expect conservative state solicitors general to weigh in supporting Louisiana through amicus briefs,” he said.
Now that the law is in effect, “we can expect a lawsuit, followed by appeals, after which the Supreme Court may or may not take the case,” Inazu said. “It’s possible that another state will pass similar legislation resulting in a different lawsuit. The Supreme Court will sometimes consolidate appeals that raise the same legal issue, but it depends on timing and what lower courts have done.”
Inazu’s scholarship focuses on the First Amendment freedoms of speech, assembly and religion and related questions of legal and political theory.
