Appeals court hears argument over Louisiana Ten Commandments bill

A Ten Commandments representation outside Gates of Prayer in Metairie. SJL file photo.

By Andrew Bernard of JNS and SJL reports

The U.S. Fifth Circuit Court of Appeals heard arguments in Roake v. Brumley on Jan. 23 over a Louisiana bill mandating the display of the Ten Commandments in the state’s public schools.

The plaintiffs in the case, a group of public school parents represented by the American Civil Liberties Union, argued that the three-judge appeals court panel should uphold an injunction against the bill on the grounds that it violates the religious establishment clause of the First Amendment.

“We have Christians, we have Jews, and they are all—those who chose to bring this case—united in the concern that their children will be coerced,” said Jonathan Youngwood, a lawyer for the plaintiffs. “Many of our clients believe in the Ten Commandments, but they believe it’s their job to teach their children about the Ten Commandments, not the job of the state.

There are three Jewish families among the nine plaintiffs, and among their arguments is that the Ten Commandments version mandated by the law is at odds with the Jewish version, which could confuse Jewish students as to which version is correct, and makes the Christian version de facto established by the state.

In June, Louisiana Gov. Jeff Landry, a Republican, signed H.B.71 into law. The law made Louisiana the first state to mandate posting the Ten Commandments in all K-12 classrooms, as well as at universities that receive public funding. The display must be poster-sized and be in a “large, easily readable font,” and is to be funded through donations, not through public funds.

The posters are to be accompanied by a four-paragraph explanation of how the Ten Commandments were part of public education for almost three centuries.

In November, the U.S. District Court for the Middle District of Louisiana agreed with the plaintiffs to place an injunction on the law.

Earlier this month, Louisiana Attorney General Liz Murrill gave guidance to schools and universities on how to comply with the new law, which was slated to go into effect on Jan. 1. In a news release, she said the law “is plainly constitutional because there are constitutionally sound ways to implement it.”

She calls on schools to display one of four posters, alongside other educational displays, such as the Declaration of Independence, Mayflower Compact or Northwest Ordinance. There is no penalty for not displaying the posters.

The state argued that the November order applies to only the five listed school districts and others should have the displays, but opponents have said they will sue any district that complies.

In December, a group of 18 Attorneys General filed a brief supporting the Louisiana law. Among the 18 is Alabama, which went through numerous bruising court battles over governmental display of the Ten Commandments over the last 30 years.

Proponents of the legislation argue that the Ten Commandments are an integral part of America’s cultural and legal heritage and that their display does not infringe on the religious liberties of anyone.

“According to the ACLU, religious symbols are so radioactive that students can’t be anywhere near them,” wrote Joseph Davis, a senior counsel at Becket, which is supporting the state of Louisiana. “That view is absurd and utterly divorced from history—religion has been a natural and welcome part of our American public life since the founding.”

Benjamin Aguiñaga, the Louisiana solicitor general, argued procedurally that the plaintiffs lack standing and their case lacks ripeness — that they filed suit before any displays went up, so there are no facts about the display’s impact on students. “Plaintiffs seek to challenge hypothetical displays that do not exist and that they have never seen,” Aguiñaga told the court.

On the merits, Aguiñaga said that the plaintiffs had to prove that displaying the Ten Commandments would violate the First Amendment in every instance and had failed to do so.

“Plaintiffs are free to try to make their challenge about particular kinds of classrooms, but this is a facial challenge,” Aguiñaga said. “They have to prove to you that even in LSU’s biggest student auditorium that somehow an H.B.71 display is unconstitutional.”

Aguinaga also differentiated the Louisiana law from ones that have been struck down in other states, saying the posters would not be isolated displays, but with other historical posters.

According to the Torah, God revealed the Ten Commandments to Moses on Mount Sinai and gave them to him as two tablets written on stone. (After he broke the first set, Moses received a second pair.) Both Christians and Jews adhere to the Ten Commandments, but religious groups differ on how they ought to be divided and numbered.

The plaintiffs argue that the version of the commandments mandated by H.B.71 is distinctly Protestant, with additional changes to address Catholic sensitivities.

The bill prescribes one specific English translation that divides the Ten Commandments into 12. The version includes “Thou shalt not kill,” a translation popular among Christians, but the original Hebrew references “murder.”

Most of the longer commandments are abridged, though the commandment about honoring parents continues, “that thy days may be long upon the land which the Lord thy God giveth thee.”

The bill’s version “does not match any version or translation found in the Jewish tradition,” the original complaint reads.

“The version of the Ten Commandments mandated in H.B.71 omits key language and context that is included in the version set forth in the Torah,” it states. “For example, it is missing the important message in the Jewish story about God bringing the Israelites out of Egyptian slavery to freedom. It also summarizes other commandments instead of including the text as found in the Torah in its entirety.”

As such, one of the plaintiffs noted, it takes a sacred foundational document of Judaism and reduces it to a broad statement of civic morality, erasing the Jewish significance.

In the November order, U.S. District Court for the Middle District of Louisiana Judge John deGravelles said the families opposing the law had “easily established a likelihood of success” in their case.

At the Jan. 23 hearing, Judge Catharina Haynes said she respects the Ten Commandments, but expressed skepticism as to why they have to be in every classroom in the state. Haynes also remarked that it was clear state representatives had a religious purpose in mind when passing the bill.

During the law’s passage, Representative Dodie Horton, the primary sponsor of H.B.71, said the law would “have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

Rep. Sylvia Taylor stated that “A lot of people, their children, are not attending churches or whatever… So what I’m saying is, we need to do something in the schools to bring people back to where they need to be.”

Rep. Roger Wilder, a co-author of the bill, said opponents are “waging a war on Christianity,” and bemoaned that if his wife were a teacher “she would be asked to teach evolution which is in complete contradiction with the theory of creation that we believe out of the Bible.”

The U.S. Supreme Court has made differing rulings about the state displaying the Ten Commandments.

In 1980, the court ruled in Stone v. Graham that a Kentucky law similar to H.B.71 mandating the display of the Ten Commandments in classrooms was unconstitutional because it lacked a “secular legislative purpose” as required by the 1971 ruling in Lemon v. Kurtzman.

In a pair of 2005 cases, the high court reached differing conclusions about the legality of displaying the Ten Commandments, holding that it was allowed if placed in a historical and social context and forbidden if displayed in isolation or for a religious purpose.

According to Becket, a decision in the case is expected by the spring. The judges indicated they understand the need to have a decision soon.