Earlier this month, the Texas Senate passed a bill requiring the Ten Commandments to be displayed in every classroom in the Lone Star State. It’s not that surprising in the wake of the Supreme Court’s blockbuster June 2022 decision, Kennedy v. Bremerton, which overturned all existing jurisprudence about the separation of church and state.
Before that ruling, the Texas bill would’ve been an obviously unconstitutional establishment of religion, something prohibited by the First Amendment of the Constitution. Now, however, it comes under the disturbing category of “Who knows?”
The Texas Senate certainly is trying to establish religion under any ordinary-language use of the term. But because the Supreme Court announced a vague new “history and tradition” test to replace the last 50 years of establishment-clause law, a court could conceivably conclude that mandating the Ten Commandments is just fine — a result that would invite a raft of new religious establishment legislation across the country.
I won’t waste much of your time reminding you of how the establishment clause operated for the last half-century. Briefly, under the so-called Lemon test, a law needed a primarily secular purpose so as not to violate the establishment clause. There is certainly no primarily secular purpose to the Ten Commandments, which start with the proposition, “I am the Lord your God who brought you out of the land of Egypt, out of the house of bondage. You shall have no other gods before me.” In 1980, the Supreme Court struck down a Kentucky law requiring the Ten Commandments in the classroom, basing its ruling on this logic.
In a subsequent refinement of the Lemon test, Justice Sandra Day O’Connor crafted an endorsement test. It struck down any law that used religion to send the message to some people that they were insiders — favored members of the political community — or a message to others that they were outsiders. The Ten Commandments bill would obviously do just that, associating the Judeo-Christian commandments with the official stance of the state of Texas.
The Kennedy v. Bremerton decision killed both the Lemon test and the endorsement test. The opinion, by Justice Neil Gorsuch, said the establishment clause must now be understood in terms of history and tradition. When I taught my First Amendment course this past fall at Harvard Law School, the students understandably wanted to know what in the world that meant. I could only shrug and say, “We’ll see.”
History and tradition could be used to strike down the Texas bill. There is no strong tradition in the U.S. of displaying religious symbols in classrooms. The earliest American public schools were non-denominational by design, created in the hopes of incorporating kids from a range of mostly Protestant backgrounds.
What’s more, in an important pair of Ten Commandments cases decided by the Supreme Court in 2005, the justices allowed a large stone monument of the Ten Commandments to remain on the Texas capitol grounds, but struck down a new display of Ten Commandments in a Kentucky court house. Although the distinction was subtle, the court then strongly implied that a new, ideologically motivated display must be treated differently from an old monument that no one much noticed.
If that precedent is taken as a guide to history and tradition, then the Texas law would be unconstitutional. It’s a new law creating a new practice. And it’s mandatory, not optional — another deviation from past U.S. practice on religious symbols in public places.
On the other hand, history and tradition could be used to uphold the Texas bill. The Ten Commandments have sometimes appeared in the iconography of American public spaces. On the rear face of the Supreme Court building itself, Moses can be seen at the apex of the pediment — holding the two tablets of the law on which the commandments were written according to the Bible. True, the text of the commandments doesn’t appear. And Moses is just one of many lawmakers depicted in the court building, including Hammurabi, Solon, Confucius and Muhammad. But there the tablets are.
Into the 20th century, many public schools started the day with Bible-reading and prayer. These practices, ruled unconstitutional in the 1960s and ’70s, are part of the American history and tradition, as is their striking down.
A genuine, historically attuned account of the original meaning of the establishment clause would conclude that it was initially focused on prohibiting state funding of religion and state coercion of religious practice. In my own book on the subject I summed up this history with the slogan, “No money and no coercion.”
The Ten Commandments displays do cost some taxpayer money to put up, and so would’ve violated the original meaning of the establishment clause. Their presence in every classroom is also arguably coercive.
But the justices might treat the expenditure as de minimis and the symbol as non-coercive. The conservative justices have not shown themselves to be careful in applying originalism in the church-state area.
Ultimately, the Texas bill, whether it passes or not, marks the Supreme Court’s conservative judicial revolution in action. The justices have sent the message to the country that the establishment clause can now be violated at will. It will be up to them to put on the brakes.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
