Louisiana just passed a law requiring public schools to display the Ten Commandments in classrooms. The Supreme Court rejected a similar Kentucky law in 1980.

But this isn’t 1980, and a law that flies in the face of the Constitution and precedent isn’t necessarily doomed if it reaches the high court. The American Civil Liberties Union said it will challenge the law, so we may soon learn where the Roberts Court stands on a contentious issue of religion and government.

In announcing its opposition, the ACLU cited that 1980 case, Stone v. Graham. Notably, the court was divided even in that case, with the majority reasoning that: 

If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

So it’s a slam dunk against Louisiana, right?

Maybe not. For one thing, the Supreme Court has weakened the establishment clause over the years. The First Amendment’s religion clauses say that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but the current court treats free exercise claims much more seriously. 

Take the more recent case of Kennedy v. Bremerton School District, in 2022, where the court sided 6-3 with the praying football coach on free exercise (and free speech) grounds. In dissent, Justice Sonia Sotomayor wrote that the exercise and establishment clauses “are equally integral in protecting religious freedom in our society,” with free exercise serving as a promise from the government while the establishment clause erects a backstop against breaking it. “Today, the Court once again weakens the backstop,” she wrote.

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It’s against that backdrop that Louisiana’s law emerges. And we know that precedent alone won’t guide the Supreme Court, which has also shown that it can draw contrived factual distinctions to reach desired outcomes (as the Kennedy case illustrated).

With all that in mind, it’s worth noting a dissent in that 1980 case from Justice William Rehnquist, for whom Chief Justice John Roberts clerked — in 1980, as it happens — and whose views are more represented on today’s court. “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin,” Rehnquist wrote then. 

Ultimately, even this Supreme Court might say that Louisiana went too far. But the court’s change in personnel and, relatedly, its actions since 1980 make it an open question.

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