Louisiana Will Get The Ten Commandments Into Schools If They Have To Break 'Em All To Do It

And they're well on their way!

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Generations of Americans have understood that the Establishment Clause of the First Amendment mandates the separation of church and state. But now six robed theocrats drunk on power have amassed the power to revoke that mandate, even as they claim to be upholding precedent. And the state of Louisiana, abetted by the Fifth Circuit, is only delighted to help them do it.

In June, Louisiana enacted HB71, a law requiring every single public school classroom to post a public “display” containing the Protestant version of the Ten Commandments.

This is clearly a violation of the Establishment Clause, and it was immediately challenged by local parents, who sought an injunction to block the state from enforcing the law when school resumed. To give the court time to adjudicate on the merits, as opposed to issuing an emergency ruling, the state defendants agreed not to post any displays or issue any guidance to local schools until November 15. But on Monday the state moved to dismiss the lawsuit in its entirety.

In a rational universe, it would be the plaintiffs moving for early summary judgment, citing a 1980 decision called Stone v. Graham, in which the Supreme Court tossed out a nearly identical Kentucky statute. But that’s not the universe we’re living in, and Louisiana is gambling that the current Supreme Court will gleefully take this proffered sledge hammer to 200-plus years of Establishment Clause jurisprudence and allow the religious indoctrination of school children.

And that gamble may well pay off! But to goose the odds, Louisiana’s Attorney General Liz Murrill has resorted to outright lying about HB71 to get the case thrown out at the trial court.

The Honest Argument

AG Murrill could simply march into the federal courthouse in the Middle District of Louisiana and say, “Look, Stone may still be good law on paper. But we all know that an unholy alliance of Leonard Leo, the Federalist Society, Mitch McConnell, and a deranged criminal gameshow host have succeeded in installing six right-wing activist hacks who have functionally gutted the case undergirding the Stone ruling. So, let’s cut the crap and quit pretending that precedent even matters anymore.” Well … she might phrase it a little differently.

We discussed this argument in considerable detail in our previous post on this lawsuit. TL, DR: Stone was based on an earlier case, Lemon v. Kurtzman, which the Roberts Court first undermined and then effectively overruled. And in fact, AG Murrill did make this argument. Sort of.

Plaintiffs claim that the Supreme Court’s decision in Stone v. Graham, 449 U.S. 39 (1980), controls this case—but they omit that the Supreme Court overruled the doctrinal basis for Stone. … The problem for Plaintiffs is the Supreme Court has now rejected the Lemon test in its entirety. In Kennedy [v. Bremerton School District], it criticized Lemon as an “ambitiou[s], abstract, and ahistorical approach to the Establishment Clause,” and it “abandoned Lemon and its endorsement test offshoot.”

That’s a mendacious interpretation of a shockingly mendacious ruling by the high Court. In Kennedy v. Bremerton School District, Justice Gorsuch’s majority opinion claimed that high school football coach Joseph Kennedy made a “short, private, personal prayer” during football games, “quietly while his students were otherwise occupied,” and that the school district had wrongfully terminated him for violating the Free Exercise Clause of the Constitution.

That egregious lie prompted Justice Sotomayor to attach this photograph to her dissent:

Gorsuch scoffing that the Lemon test had long ago been rejected is in keeping with the conservatives’ habit of claiming that a precedent has been overruled on their way to overruling it. And indeed the proof that the Supreme Court “long ago abandoned” Lemon is a cite to a plurality opinion by Justice Samuel Alito in American Legion v. American Humanist Association (2019), which garnered only three other justices in support. 

To be clear, that’s Gorsuch in 2022 describing Alito’s non-binding, non-majority opinion from three years earlier as evidence for what “this Court” ostensibly did “long ago.” As Justice Sotomayor forcefully explained in her dissent, the Court did no such thing. Nevertheless, to a trial judge in the Middle District of Louisiana answering to an out-of-control Fifth Circuit, Alito’s dictum is probably a reasonably persuasive argument.

And yet Murill went even further, endorsing two outright lies in her effort to avoid having to make her case at all.

Lie #1

First, the state argued in its motion to dismiss that the harm to plaintiffs is merely speculative because the Ten Commandments displays might be so inoffensive that they cause no First Amendment injury whatsoever.

What would any display viewed by Plaintiffs’ children actually look like? Would that display place the Ten Commandments in a certain context, and if so, what context? Where would the display be located in the classroom—by a teacher, on a side wall, on a back wall? How big would the display be? What would be included as part of the display? Would the same display appear in multiple classrooms, or would different classrooms have different versions? Will any particular school actually receive donated posters that a school opts to use? 

And these critical questions are compounded by the fact that there are countless ways a Defendant might comply with H.B. 71, including, for example, the various illustrations referenced below. 

Among those “countless ways” the state suggests that schools might comply with the Ten Commandments law would be by placing them alongside the Ten Duel Commandments from the musical Hamilton. They even include a helpful mockup!

Such a display would be patently illegal under the plain wording of HB71, which specifies that minimum requirement that the Ten Commandments “shall be the central focus” of the display. The law also goes out of its way to specify that “A public school may also display the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance … along with the Ten Commandments.” This is clearly an effort to ensure that the state’s religious indoctrination isn’t canceled out by proximity to, say, Notorious B.I.G.’s "Ten Crack Commandments."

And yet Murrill insists that “the universe of potential H.B. 71 displays is infinite,” and the law “sets only a floor,” empowering local school boards to design whatever displays they wish.

In reality, the law says that the State Board of Elementary and Secondary Education “shall” adopt rules and regulations to implement HB71, and the State Department of Education “shall” identify appropriate resources and publish them on the department’s website. Murrill attaches an affidavit in which the Deputy Chief of Policy for the Louisiana Department of Education (DOE) attests that her agency will “likely consider” some of the state’s mockups when evaluating potential classroom displays. But it’s highly unlikely that DOE will be greenlighting a poster that includes "The Ten Black History Month Commandments." (Don't: Get over the past. Do: Take the time to unlearn white history.)

More to the point, HB71 explicitly bans schools and school boards from crafting displays to suit their own preferences or allowing students to make their own posters. The law says that “in order to fund the displays free of charge, the school public governing authority shall do either of the following,” and then gives only two options: either “(a) accept donated funds to purchase the displays,” or “(b) accept donated displays.” 

In other words, schools can only either buy or receive contributed displays made by someone else. And while the legislature did not specify who that “someone else” might be, it’s a pretty safe bet that the only organizations willing to participate in this exercise of religious indoctrination will be Protestant churches, since the law mandates that the display use language rejected by both Catholics and Jews.

Lie #2

Murrill’s primary argument is that the plaintiffs have yet to suffer any actual injuries because no child has yet had to recite the times table under a poster of a biblical passage. The state relies on Staley v. Harris County, Texas, a Fifth Circuit case from 2007, and, in a troubling display of dishonesty, grossly mischaracterizes the holding.

In Staley, the plaintiff objected to a local courthouse proposing to display a Bible on its grounds. Both the trial court and the Fifth Circuit held that the display violated the Establishment Clause and ordered it removed. Texas then appealed to the full Fifth Circuit sitting en banc, but before the case could be heard, the offending bible was put into storage as part of a planned renovation of the courthouse.

This had the effect of mooting Texas’s appeal (since the bible had already been removed), and the state asked the court to void the trial judge’s injunction. But the Fifth Circuit explicitly rejected Texas’s effort to vacate the lower court’s ruling.

Here, not only did the County's voluntary actions cause this case to become moot, but, more importantly, the County has pledged to display the monument again after the renovations. … When we raised the issue, Harris County proceeded on its own volition to remove the monument only days before oral argument, and now it seeks advantage of its conduct, asking us to hold the case moot and vacate the district court judgment against it. The totality of this conduct does not support the County's obligation to demonstrate an "equitable entitlement to the extraordinary remedy of vacatur." 

Essentially the appeals court ruled that Texas couldn’t moot its own case by removing the bible for construction, then get the injunction dissolved and put the Bible back five minutes later. But Murrill points to Staley and falsely claims that “the Fifth Circuit has squarely held that any challenge to a ‘probable’ display of the Ten Commandments ‘is not ripe because there are no facts before [the court] to determine whether such a display might violate the Establishment Clause’ —especially where ‘no decision has been made regarding any aspect of the future display.’”

It’s shockingly disingenuous behavior by the state’s highest lawyer, and a gross violation of the Ninth Commandment. But with the Fifth Circuit and potentially the Roberts Court casting a long shadow, it just might work.