Document Type

Article

Publication Date

11-2025

Abstract

Louisiana recently enacted a law requiring a Ten Commandments display in every public school classroom from kindergarten to college. Forty-five years ago, the U.S. Supreme Court ruled that a nearly identical attempt to introduce Christianity into the public schools violated the Establishment Clause—the clause in the U.S. Constitution’s First Amendment that requires some degree of separation between church and state.

Unfortunately, the U.S. Supreme Court has since reduced the Establishment Clause to a shadow of its former self. It replaced doctrinal tests that protected religious minorities with a history and tradition test that is easily manipulated and that presumes the constitutionality of any longstanding religious practice. It has also developed multiple strategies for dodging establishment claims such as “secular-washing”—recharacterizing an inherently religious symbol as secular.

However, the U.S. Constitution and the U.S. Supreme Court do not have a monopoly on protecting rights, including the right against establishment. As “New Judicial Federalism” highlights, our dual system of government means state constitutions and their establishment clauses provide another layer of constitutional protection. Moreover, state courts are not obliged to interpret their establishment provisions in lockstep with the Supreme Court, even in the rare cases where the text is the same.

Accordingly, state courts can and should interpret their establishment provisions independently of federal jurisprudence to provide more robust protection when confronted with laws like Louisiana’s. Although the U.S. Supreme Court has all but abandoned religious minorities, state courts need not follow in its footsteps.

Even if state courts feel bound to rely on the history and tradition approach, they do not need to ground their analysis in blind acceptance of past practices as the Supreme Court regularly does. Unquestioning reliance on historical practices overlooks that the Establishment Clause sought to break with past practices and that past practices (such as anti-Catholic Protestantism in public schools) do not always live up to constitutional ideals. Instead, state courts can invoke foundational principles such as prohibiting religious favoritism and requiring secular justifications. State-mandated Ten Commandments posters on every public schoolroom wall undermine both principles. Foisting the sacred text of one or two religions onto students of various (or no) faiths epitomizes religious favoritism, and no persuasive secular reason justifies such an imposition.

Download

Share

COinS