Appeals Court Who Declined To Block Louisiana’s Ten Commandments Law Got It Right
(ANALYSIS) The Fifth Circuit Court of Appeals ruled that Louisiana could proceed to implement its law HB 71, which requires that all public schools in the state display the Ten Commandments. The Feb. 20 decision brought with it praise and condemnation from across the political spectrum.
The American Civil Liberties Union had argued against this, maintaining “that public schools’ display of an official, state-approved version of the Ten Commandments, which is associated with Protestant beliefs, impermissibly favors some faiths over others and will create an unwelcoming and religiously coercive school environment for children who do not subscribe to the state’s preferred version of Scripture.”
But it is premature to think that those who want the Ten Commandments displayed have won their case. This is not only because the ACLU can appeal to the U.S. Supreme Court, but also since the decision was narrowly procedural rather than a judgment on the substantive merits of the issue.
The Court did not rule that the law was itself constitutional. Instead, it stressed that its own role as a court, as outlined in Article III of the U.S. Constitution, was not to issue legal advice about contingent matters but only to decide actual cases brought before it. It held: “The question before us ... is not whether H.B. 71 is constitutional, but whether that issue is fit for judicial resolution at this time. … The issues we decide must not be dependent on contingent future events that may not occur as anticipated, or indeed may not occur at all.”
In short, not enough has happened to bring an actual case on which any legal judgment could properly be reached. This is because no Louisiana school has yet displayed the Commandments and, under H.B. 71, there is great flexibility in how they might do so.
The Becket Fund, which argued in defense of Louisiana’s law, stressed that any display must explain “the history of the Commandments in American public education, and schools have flexibility in how to design them. For example, schools may choose to incorporate the Ten Commandments alongside other historical documents, like the Declaration of Independence, the Mayflower Compact, and the Northwest Ordinance. No school board is required to spend its funds to purchase the displays; they must instead accept private donations.”
It lawyers argued: “Some mockups of potential displays show how the Ten Commandments can be used to draw comparisons between the Rev. Martin Luther King Jr. and Moses, explain the structure of the House of Representatives, or explore important Supreme Court cases.”
Hence, there is no actual existing display about which the Court could properly make a real judicial decision. Some displays might be constitutional and others not.
Consequently, the justices argued that “the Ten Commandments bear immense religious significance. For believing Jews and Christians ... the word of God handed down to Moses on Mount Sinai. But they also have historical significance as one of the foundations of our legal system. ... That dual character forecloses any categorical rule against their display on public property.”
Religious and secular
The Court is correct. Like very many things in our world, the Ten Commandments are both religious and secular. These two are not mutually exclusive. Historic legal codes are nearly always religious. Ignoring them would mean ignoring much of our legal history, whatever our religious beliefs.
That is why the U.S. Supreme Court building, where any appeal from the Fifth Circuit decision would be heard, actually has friezes that include representations of Moses holding the Commandments. In addition, it has portrayals of Hammurabi, Solomon, Justinian and others. Confucius is also there. Not to mention Mohammed — yes, Islam’s prophet as a lawgiver has now been engraved on the Supreme Court building for almost a century.
It also includes a Catholic saint, there not because he is a saint per se, but because he was Louis IX, a King of France, a person who made major reforms to the French legal system. The largest of the California Missions, San Luis Rey (Louis Saint and King), is named for him. Visit this beautiful site if you can. In fact, the great state of Louisiana is itself named after Louis' descendants.
King John I of England is there for his role in the Magna Carta, whose Preamble reads, “having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of his holy Church and for the rectifying of our realm. …”
They are there not as religious leaders, though they certainly were such, but because they were also lawgivers who have shaped us. There are many other examples. To mention a few:
— Tertullian is probably the first person of whom we know to use the expression religious freedom (libertas religionis). He argued that “it is a fundamental human right, a privilege of nature, that every man should worship according to his own convictions.” Tertullian, who lived in the second century, was a Church Father.
— In his influential writings on religious freedom, Thomas Jefferson paraphrased Lactantius to buttress his claim that religion cannot be coerced: “It is not part of religion to coerce religious practice, for it is by choice not coercion that we should be led to religion.” Lanctantius was also a Church Father.
— Many current scholarly views of the origin of the idea of human rights now maintain it to have been in 11th and 12th centuries church canon law.
— More recently, the American Declaration of Independence refers five times to Divine authority, including as the source of rights.
— Even the Preamble of relatively secular Canada's 1982 Constitution Act avers that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”
The Fifth Circuit Court of Appeals is correct in its view and in its reluctance to take any premature decision. The “Ten Commandments bear immense religious significance. For believing Jews and Christians ... the word of God handed down to Moses on Mount Sinai. But they also have historical significance as one of the foundations of our legal system. ...”
The religious and historical dimensions can be distinguished in several ways, but they cannot be shorn asunder. Excluding them from our institutional portrayals will falsify the history of the laws that we have inherited. Depending on how they are framed, portraying the Ten Commandments in schools can be both educational and entirely constitutional. One cannot sever religion from history, including legal history.
Paul Marshall is Wilson Professor of Religious Freedom at Baylor’s Institute for Studies of Religion, director of the Religious Freedom Institute’s South and Southeast Asia Action Team, senior fellow at the Hudson Institute’s Center for Religious Freedom and author of over 20 books on religion and politics. His latest book is “Called to be Friends: Called to Serve.”