In June, Louisiana Governor Jeff Landry signed a bill into law mandating that the Ten Commandments be posted in every classroom in the state, declaring at a press event that, “If you want to respect the rule of law, you’ve got to start from the original law giver, which was Moses.” Opponents say that the new law flies in the face of longstanding United States Supreme Court precedents, including its 1980 decision in Stone v. Graham declaring a similar Kentucky law an unconstitutional violation of the First Amendment’s Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion.”
The anticipated legal challenge arrived within hours — “I can’t wait to be sued,” Landry reportedly told attendees of a subsequent Republican fundraising event — in the form of a lawsuit filed by a group of parents represented by the American Civil Liberties Union of Louisiana. However the federal district court rules, the case is likely to end up before the U.S. Court of Appeals for the Fifth Circuit, widely viewed among the most conservative of the nation’s 13 federal appeals courts. From there, it could be appealed to the nation’s highest court, which since its landmark 2014 decision in Burwell v. Hobby Lobby Stores, has issued a series of decisions supporting — and some say, expanding — the free exercise of religion.
Constitutional law scholar Sanford Levinson, a professor at the University of Texas Law School and a regular visiting professor at Harvard Law, believes that, because a majority of justices on the current Court often feel free to dispense with past precedents both new and old, it is impossible to predict how they might rule. In an interview with Harvard Law Today, Levinson suggested that the case might present Justice Clarence Thomas with an opportunity to revisit and possibly reject elements of the incorporation doctrine, under which the Court has for decades held that First Amendment guarantees and restrictions — including the Establishment Clause — apply equally to states as well as the federal government. “That,” he said, “would allow the states to do what they want on government support for religion.”
Harvard Law Today: Didn’t the Supreme Court decide in 1980, in the case Stone v. Graham, that posting the Ten Commandments on the schoolhouse walls violates the Establishment Clause?
Sanford Levinson: Yes, but I’m not sure that kind of longstanding precedent means much anymore. There are two other cases that we need to look at, both decided on the same day in 2005. In the first, McCreary County v. ACLU of Kentucky, the justices ruled 5-4 that the state couldn’t hang the Ten Commandments in the Kentucky statehouse, even when they surrounded it with secular documents like the Declaration of Independence, because they had a religious motive for doing so. In the other, Van Orden v. Perry, the Court decided 5-4 that Texas could keep a stone monument inscribed with the 10 Commandments on the grounds of the state capital.
Interestingly, Stephen Breyer provided the fifth vote in the two contradictory decisions. In the Kentucky statehouse case, he joined the majority in applying the Lemon Test [a three-part religious neutrality test the Court developed in its 1971 majority opinion in Lemon v. Kurtzman]. In the Texas case, he took a more pragmatic approach, agreeing with the majority result but not its reasoning, and issuing a separate, narrower opinion in which he tried to assess the context of the monument, how long it had stood uncontested, and the faith-based divisiveness that he feared removing it might have.
HLT: So, what do those various precedents tell us about how federal courts, or the Supreme Court, might rule?
Levinson: It is hard to say, because with this Court, nothing is settled. Even recent decisions are up for grabs. Just look at the Court’s decision this past term in the Rahimi case [United States v. Rahimi], in which every justice but Clarence Thomas voted to uphold state laws banning people subject to domestic violence orders from purchasing firearms. That ruling seems to conflict with the decision the Court issued just two years before in [New York State Rifle & Pistol Association v. Bruen], in which Thomas wrote in the majority opinion that gun laws are unconstitutional if they don’t have historical parallels from the time the Second Amendment was approved. Has there ever been a decision in our history where the author of an opinion for the Court two years before ends up as a lone dissenter on the same issue? Or where the other justices say, “Well, the Fifth Circuit misunderstood the Bruen decision. We’re not backtracking. Rather, the Fifth Circuit misunderstood it.” And in his dissent, Thomas said, “No, they didn’t misunderstand it at all.” So, what do you do with this?
“With this Court, nothing is settled. Even recent decisions are up for grabs.”
HLT: Whatever your views on gun rights, those two very different decisions — Bruen and Rahimi — coming only two years apart sound a little disjointed. What, if anything, should Court watchers take from that?
Levinson: Right now, the right thing to do is just hold on to your wallet because there’s no telling what might happen. If it were up to Thomas, I think he would likely overrule the incorporation doctrine [a legal doctrine adopted after passage of the 14th Amendment under which certain parts of the Bill of Rights, including the First Amendment, are held to apply to states as well as the federal government], maybe of everything, but certainly of the Establishment Clause. That would allow the states to do what they want on government support for religion. And his theory wouldn’t be stupid, because you can view the First Amendment as safeguarding states from interference by the national government when they decide to establish a religion, or for that matter, not to establish a religion — that the national government has nothing to do with that state-level decision. The Supreme Court has said since 1947 that the Establishment Clause applies across the board, and that it protects all of us against establishment of [a state-supported] religion. And although 80 years seems like a long time, you can say that 1947 is fairly recent in terms of our overall 240-year history. So, I think the only honest answer is that predicting what the Court will say on the Ten Commandments case is all a guessing game. If they feel bound by precedent, it’s an easy case. But this is not a Court that feels bound by precedent.
HLT: If precedent is no longer the factor it was, does it come down to how the individual justices feel about the First Amendment and religion, and how willing they are to compromise with one another?
Levinson: Justice Antonin Scalia once spoke at a faculty lunch here at the University of Texas, and I asked him a question, based on a newspaper article on then-Seventh Circuit Judge Richard Posner. He had said that you have to realize that multi-member courts are like arranged marriages. You’re going to have to spend your life with these people. And you’re going to have to adjust and compromise. Did Scalia agree? No. Scalia had no use for that. He was not a compromiser. And I think that’s also true, certainly, of Thomas and [Samuel] Alito, and I think it’s probably true of [Neil] Gorsuch in very real ways. As for [Amy Coney] Barrett and [Brett] Kavanaugh, I think it’s like the apocryphal story of Zhao En-lai’s response to Henry Kissinger’s question about the impact of the French Revolution: “It’s too early to tell.” I don’t think we have any firm ideas about Barrett and Kavanaugh on religion, and how far they’re willing to go.
I would predict that the Fifth Circuit will uphold what Louisiana wants to do. They will say, on substance, that this isn’t coercive — because the test now is coercion — and this isn’t coercive. They’ll say that they are no longer bound by the Lemon Test [which was effectively overturned by the Court on a 5-3 vote in 2022 in Kennedy v. Bremerton School District]. And they’ll say that the purpose of posting the Ten Commandments is not to promote religion; it is to instill reverence for law. And they’ll say that’s a legitimate public purpose. And if the Fifth Circuit could say that, who can say there aren’t five votes for that position on the Supreme Court?
HLT: In his dissent in Stone v. Graham, Justice William Rehnquist wrote, and I’m going to quote him here, that “the Ten Commandments have a significant impact on development of secular legal code in the western world.” Is that an accurate statement about either Civil Law, which is derived from Roman law and the Justinianic Code and used in most of continental Europe, or English Common Law?
Levinson: Never trust the Supreme Court — on any side — when they make historical generalizations. They’re not trained to do it. Sometimes, they get it right. But sometimes not. Is it the case that the Ten Commandments have had some influence on some people in legitimizing the notion of law? Sure. It would be astounding if that weren’t the case. Did the Ten Commandments have a lot of influence? You mentioned English Common Law — did the Ten Commandments have more influence than Magna Carta? And with Magna Carta, you can get into very interesting debates about how much Magna Carta is simply a myth and symbol, and how much it actually had influence.
HLT: Is there an argument that the Ten Commandments include at least a few common sense, commonly accepted legal precepts that are, in fact, incorporated into federal and state law? Don’t steal. Don’t lie. Don’t covet various goods or people. What’s so wrong with posting those?
Levinson: I think the Ten Commandments include several admonitions that you can get to through right reason, or through utilitarian analysis, without needing to refer to religion. Every kid should be taught you shouldn’t steal, etc. Now, as the comedian John Oliver suggested on his show recently, it’s not clear what a kindergartener would get out of being told you shouldn’t covet your neighbor’s wife. But Louisiana wants all 10, some of which have nothing to do ethics and everything to do with theology.
HLT: It seems like this Court’s previous decisions about religion, such as Burwell v. Hobby Lobby and Bremerton, were mostly about the Free Exercise Clause — that the government shouldn’t make someone do something that violates their religious beliefs or prevent them from practicing. And this is about the Establishment Clause — whether a government can force all children to view a religious text. Is there a tension between the two?
Levinson: I think you’re right. Free exercise raises issues of individual accommodation, that you don’t want to get a vaccine, for instance, because of your religious views. And the question is, “Well, should I honor those views, even if it means you get a pass on doing what other people have to do?” And we can argue about that all day. The issue I’m most interested in could be called collective free exercise or collective establishment — the idea that we as a society are in a covenant with God, in which we have pledged as a society to obey God’s law. To supporters of this view, that’s what it means to be under God. Your society has to walk the straight and narrow. And if it doesn’t, there will be divine wrath. And so, what Samuel Alito wants is not free exercise accommodation. He wants a society that is living under God, with all that comes with that.
HLT: Nodding to the rise of originalism, Justice Elena Kagan once quipped that “we’re all originalists now,” although I think she later walked that back a bit. But in the context of a Court majority that professes to be guided by originalism, is there an originalist argument for this on either side?
Levinson: Well, Massachusetts had an established church up to 1833. So, that is an originalist argument for allowing a state to establish a religion. But on the other hand, you find people like Thomas Jefferson and others who thought the state should get out of the religion business. And the problem with originalism always is, which friends do you look at?
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