Who’s Afraid of the Ten Commandments?

The full, 17-judge United States Court of Appeals for the Fifth Circuit recently heard consolidated oral arguments in a crucial case that is all but guaranteed to make it to the Supreme Court. The predictable controversy surrounding the litigation, which involves similar but distinct mandatory Ten Commandments display laws arising out of Texas and Louisiana, is telling as to just how far America has fallen from its Founders’ vision.In 2024, Governor Jeff Landry of Louisiana signed into law a bill requiring that the Ten Commandments be displayed in every public school classroom — from kindergarten through the university level — throughout the state. As Mr. Landry explained at the time, “If you want to respect the rule of law, you gotta start from the original lawgiver, which was Moses.” Last year, the Lone Star State followed by passing a nearly identical statute. Governor Greg Abbott, who as Texas’ attorney general in 2005 successfully defended a Ten Commandments monument on the Texas State Capitol grounds before the Supreme Court, echoed Mr. Landry in signing Texas’s bill: “Faith and freedom are the foundation of our nation.”Aggrieved liberals and secularists immediately filed First Amendment lawsuits, and district court judges promptly enjoined enforcement in both states. The question now pending before the New Orleans-based Fifth Circuit, where I once served as a law clerk, is whether the Ten Commandments laws may once again be enforced so that the Decalogue can hang on all classroom walls throughout Texas and Louisiana.Let’s start with first principles. The first clause of the First Amendment, widely known as the Establishment Clause, reads, “Congress shall make no law respecting an establishment of religion.” The two relevant words in the Establishment Clause are “Congress” and “establishment.”Jean Leon Gerome Ferris: ‘Writing the Declaration of Independence, 1776,’ detail. Via Wikimedia CommonsThe word “Congress” is relevant because the Establishment Clause was unambiguously intended only to apply to Congress — and, by extension, the federal government at large. As Justice Clarence Thomas and others have persuasively argued, the original understanding of the clause was to prohibit Congress from establishing a national religion so that the states may do so themselves — consistent, of course, with prevailing free exercise protections and the No Religious Test Clause of Article VI of the Constitution. From the Founders’ perspective, the Establishment Clause was a necessary federalism provision for a fledgling, religiously pluralistic republic.The word “establishment” is relevant because it can only mean what the Founders meant: a literal national established church, such as the Church of England. Generations of Americans have been taught that the First Amendment secures the “separation of church and state,” but that pernicious phrase is nowhere to be found in the amendment’s actual text. Instead, the notion of a “wall of separation between Church & State” has its origins in a pithy 1802 letter Thomas Jefferson sent to the Danbury Baptist Association in Connecticut. As Justice William Rehnquist explained in his dissent in Wallace v. Jaffree (1985), “Thomas Jefferson was … in France at the time … the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.”A sculptural frieze within the chamber of the Supreme Court at Washington, D.C., depicts Moses holding the Ten Commandments. Via Wikimedia CommonsIn reality, Jefferson’s “separation” language didn’t take hold until a terrible 1947 Supreme Court decision called Everson v. Board of Education, which for the first time undermined both “Congress” and “establishment” by adopting Jefferson’s insidious language and then “incorporating” it to the states as well. The result has been nearly eight decades of destructive constitutional inversion and a prolonged moral assault on America’s biblical inheritance throughout our public squares. In a law review article published last summer, my coauthors and I called for the court to formally overturn Everson and end our failed national experiment in “separationism.”None of this is even necessary to decide the Fifth Circuit case. The United States was founded on ecumenical biblical principles, and the Ten Commandments — the wellspring of so much of Western morality — embody that ecumenicism. Introduced to the world by Judaism and spread throughout the world by Christianity, the Ten Commandments are the shared inheritance of Jews and Christians of all stripes — Protestants, Catholics and Orthodox alike. The Supreme Court itself famously features a frieze of Moses carrying the Ten Commandments tablets. It would be the height of hypocrisy for the court to deny to Texas and Louisiana the ability to do that which it does itself. Sectarian public displays perhaps raise other concerns, but the Ten Commandments simply do not.On the very same day in 2005 that Mr. Abbott and Texas’ solicitor general at the time, Senator Ted Cruz, successfully defended the Texas State Capitol grounds Ten Commandments monument, the court decided a very similar case out of Kentucky that inexplicably went the other way. For decades, the Court has made a muddled hash of the First Amendment’s Establishment Clause. It’s been trending in the right direction in recent years, and the justices should eventually have an opportunity here for a landmark, clarifying ruling. For now, the Fifth Circuit must do the right thing and side with Texas and Louisiana.Creators.com

Who’s Afraid of the Ten Commandments?

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