Eugene Kontorovich Displaying, Not Establishing On the Ten Commandments case in Louisiana
https://www.city-journal.org/article/displaying-not-establishing
In June, Louisiana passed a law mandating the display of the Ten Commandments in schools, as part of an educational framework about certain fundamental historical texts, including the Declaration of Independence and the Northwest Ordinance. A group of parents, represented by the American Civil Liberties Union, filed a lawsuit to block the law’s implementation, contending that it violates the First Amendment’s Establishment Clause forbidding the government establishment of religion. A federal judge has since ruled that this law is “unconstitutional on its face.” The state is appealing the decision, with arguments scheduled before the Fifth U.S. Circuit Court of Appeals in January; in the meantime, state officials have been ordered not to enforce the display requirement.
Such displays were not uncommon in schools until the Supreme Court invalidated them in 1980—the apex of the Court’s hostility to religion in public spaces. More recently, the Court has returned to a narrower approach to Establishment Clause issues, closer to the Founders’ intentions. The Ten Commandments case provides a welcome opportunity for the courts to clarify that children have no more right to a public square scrubbed of religious content than adults do—and that being upset by such a display is not sufficient to warrant courts’ protection against it.
In 2005, the Supreme Court held in Van Orden v. Perry that government buildings may display the Ten Commandments because “religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” The Ten Commandments, in fact, feature among other historic iconography in the premises of the Court itself. “Religious acknowledgment” does not amount to prohibited “Establishment,” the Court said. Put differently, the Constitution’s specific ban on providing government support to particular denominations should not be confused with France’s policy of laïcité, a compulsory public secularism that often bars religious symbols and messages from public spaces. One can understand the litigation campaigns against religious displays in the U.S. that began in the 1960s as an effort to project the radical French Revolutionary understanding of religion in the public square onto the more temperate American one.
Yet on the same day that the Court decided Van Orden, it nixed a different stand-alone Ten Commandments display in McCreary County v. American Civil Liberties Union of Kentucky, thus leaving the rules muddled. And the Court in Van Orden suggested that rules about displays in public schools might be stricter. This argument is strange: surely, if Ten Commandments displays are legal in ordinary public spaces, then excluding them from schools—where, after all, much basic education about our civic and constitutional system takes place—would only miseducate students into believing that religion is banned from public places. Indeed, the Ten Commandments display that Louisiana law requires includes a lengthy “context statement,” describing the role of the Decalogue in American public school textbooks and classrooms for some 300 years.
The plaintiffs contend that the law “forcibly subjects” their children to the Decalogue, simply by virtue of their seeing it. But a mere display is passive; it does not do anything to people, except perhaps offend their sensibilities. And the Supreme Court has emphasized that “plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action” lack standing to sue. The simple test for standing is whether the government is doing anything to the plaintiffs, or whether the plaintiffs just have a different view from others about a general government action. This limitation on standing is designed to ensure that disputes concerning everyone get decided by everyone—that is, in elections. For too long, the Court had turned a blind eye to this limitation in Establishment Clause cases.
The principal injury that the Establishment Clause protects against is not being exposed to religious messages, but rather having one’s taxes spent to subsidize a particular religion. An established church is not just government-approved but also paid for by government. The Louisiana law deliberately avoids this problem by requiring that displays be erected only with donated funds.
The plaintiffs also claim (a novel argument) that Louisiana’s Ten Commandments displays are particularly objectionable because the statute—seeking to adhere closely to the legislative model from Van Orden—specifies the wording of the Decalogue display. Different denominations have slightly varying versions of the text, which is hardly surprising, since the actual Ten Commandments are in Hebrew. But the idea that picking a specific version constitutes an Establishment violation is absurd; such disagreements are ubiquitous.
Take Christmas Day, an uncontroversial and beloved national holiday since 1870. December 25 was chosen despite a four-way disagreement among Christian denominations on the correct date, with some Eastern Orthodox believers celebrating it as late as January 19. When states began making Christmas an official holiday in the 1830s, the choice was not without sectarian overtones. Congregationalists generally resisted such celebrations, a hostility that dated back to the Puritans’ opposition to any Christmas celebrations. Massachusetts relented only in 1856.
Or consider the menorah on the White House lawn. The shape of the menorah is the heart of a 1,000-year-old rabbinic dispute between curving and straight branches. The White House menorah is sponsored by the Chabad Chasidic movement, passionate advocates of the straight side of that debate.
Nor are different “versions” limited to matters of faith. The challenged Louisiana law also prescribes display of the Mayflower Compact, of which there are three different textual versions. No one thinks that displaying one version or another in a school constitutes making some historical-philological claim about the “authentic” one. One need not agree on everything to agree on something.
The lawsuit’s argument about the imposition of a standard text reflects a broader theme of secular liberalism: that the existence of liminal phenomena demonstrates the inability to say anything concretely about objective reality. For example, a small minority of people are born with various chromosomal displacements, resulting in various forms of hermaphroditism. Progressives cite this to argue that biological sex doesn’t exist. Some people are raised by their grandparents; thus, the nuclear family must be an artificial construct. And so on.
It may be hard to define the Ten Commandments, but we know them when we see them.
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