In recent weeks, red-state Republican officials have revived a long-running conflict over religion in the public schools. In doing so, they have created an ahistorical justification for the Supreme Court to immolate long-settled precedents.
First, Louisiana adopted a state law requiring that a copy of the Ten Commandments be posted in every public school classroom. Not to be outdone, Oklahoma’s Superintendent of Public Instruction then announced that the state’s Board of Education would require public school teachers to use not just the Ten Commandments in their instruction, but also the Bible.
Republican-led states, recognizing that the old rules no longer apply, have resurrected divisive culture wars issues that were once assumed to be settled.
Normally, we could state with confidence that both measures would be struck down by the courts, simply because the Supreme Court already struck them down decades ago. In 1980, the Supreme Court ruled that a Kentucky law requiring the posting of the Ten Commandments in classrooms was unconstitutional. The court’s ruling against state-mandated Bible reading is even older than that, a 1963 decision striking down a Pennsylvania program.
But we no longer live in normal times. The current Supreme Court, one of the most radical in American history, has shown staggering contempt for long-established precedents and a willingness to fabricate new constitutional rationales out of thin air. Republican-led states, recognizing that the old rules no longer apply, have resurrected divisive culture wars issues that were once assumed to be settled.
In an apparent effort to provide the court’s conservative majority with enough pretense to cast aside precedent, the new requirements in Louisiana and Oklahoma have been framed in an unusual way. The previous rulings by the Supreme Court naturally deemed mandates to promote the Ten Commandments and the Bible as “plainly religious in nature” and therefore clear violations of the First Amendment’s ban on the establishment of religion by the government.
The new requirements coming out of Louisiana and Oklahoma, in contrast, have been crudely disguised as “secular” efforts to teach children key aspects of American history, rather than fundamental tenets of the Christian faith.
When Republican Gov. Jeff Landry signed the Louisiana measure, for instance, he argued that posting the Ten Commandments would promote civics to public school students. “If you want to respect the rule of law,” he said, “you’ve got to start from the original lawgiver, which was Moses.” The law’s language likewise argues that religious texts are somehow essentially secular, claiming that the Ten Commandments were “foundational documents of our state and national government.”
The Ten Commandments were not, in fact, “foundational documents” for the government of the United States of America.
Oklahoma lawmakers have employed similar justifications. “The Bible is an indispensable historical and cultural touchstone,” said Superintendent of Public Instruction Ryan Walters. “Without basic knowledge of it, Oklahoma students are unable to properly contextualize the foundation of our nation.”
Such claims, however, are not borne out by actual history.
Moses was not, in fact, “the original lawgiver.” The Code of Ur-Nammu and the Code of Hammurabi, to name two examples, were composed centuries before Moses lived. Even within the Bible’s own chronology, Noah advanced a set of moral laws long before Moses.
The Ten Commandments were not, in fact, “foundational documents” for the government of the United States of America. There are aspects of the criminal code, of course, that overlap with some of the Ten Commandments. We have laws against murder and theft, and in some locales there are still laws against adultery, too. But just as many commandments have no counterpart in our criminal code, such as those against coveting your neighbor’s goods or “taking the Name of the Lord thy God in vain.”
Most important, several of the Ten Commandments come into conflict with the Constitution. They contain specific mandates about exactly which specific God to worship, how to worship him, and when. These are direct religious instructions and they clash directly with the Constitution’s guarantee that individual citizens are free to worship — or not worship — any god, any way, anywhere. Likewise, the Bible was not, in fact, an “indispensable historical … touchstone” that now must be taught to students if they are to understand the founding of the United States. The founding generation was quite diverse in its thinking on countless subjects, including religion. Some were deeply influenced by it; others, not at all. Thomas Jefferson famously took a razor to his Bible to cut out anything remotely supernatural. What the founders did agree on, they set down in the Constitution, which is the actual “foundational document” for our government. Religion and government, Jefferson noted, could thrive only if they occupied separate spheres. Notably, there are only three references to religion in the Constitution, and every single one makes clear that the founders wanted religion kept at arm’s length from the government, and vice versa. Article VI bans all “religious tests” for office, a revolutionary change and a clear rejection of the theocratic crises that had rocked Europe for centuries. The First Amendment, meanwhile, bans the establishment of a national religion and the interference of the national government in the freedom of citizens to worship however they see fit. The founding generation believed that this arrangement was necessary for the protection of individual religions as well as the national state. The concept of a “wall of separation between church and state” came from Jefferson’s letter to the Baptists in Danbury, Connecticut, who worried that state-level laws there would impinge on their right to worship freely. Religion and government, Jefferson noted, could thrive only if they occupied separate spheres. If the Republican leaders of Oklahoma and Louisiana were sincere in their desire to teach students about the “foundational documents” of America and the proper role of religion in public life, they would post the Constitution on our classroom walls. Or, if they want a list of 10 items, the Bill of Rights.
Kevin M. Kruse
Kevin M. Kruse is a professor of history at Princeton University. A specialist in modern American political, social and urban/suburban history, he is the author and editor of several books, including "White Flight" (2005), "One Nation Under God" (2015) and "Fault Lines: A History of the United States since 1974" (2019). He grew up in Nashville, Tennessee, and earned his bachelor's degree from the University of North Carolina at Chapel Hill and his master's and doctoral degrees from Cornell University. 
