Earlier this week, a federal judge permanently blocked an Arkansas law requiring copies of the Ten Commandments in six school districts. U.S. District Judge Timothy Brooks' ruling prohibits K-12 public schools in the state from displaying the posters because, he says, the law violates the Establishment Clause of the U.S. Constitution. The lawsuit, which was filed last summer on behalf of seven families in northwest Arkansas, is one of several in the country challenging Ten Commandments display laws.
John Thorlin is an assistant professor at the University of Arkansas School of Law, where he teaches constitutional and First Amendment law. He spoke with Ozarks at Large's Daniel Caruth to help break down what the ruling means and to explain the history of these Ten Commandments bills.
John Thorlin: These displays don't really go back all that far in our history. They were pretty much made famous by a confluence of two circumstances. One was there was a federal judge in Minnesota who kind of got a little boomlet of fame in the '40s and '50s alleging that there would be less truancy and less teen crime sort of things if children were more indoctrinated into the Ten Commandments. That happened at around the same time that Cecil B. DeMille was making his big Ten Commandments movie. And one of the ways he promoted the movie was to send out a lot of copies of the Ten Commandments. And with that kind of star power behind it, the movement kind of picked up steam and resulted in Ten Commandments displays showing up in a variety of places — some schools, some courthouses, the state grounds in Texas. Now it's relevant because if you're looking at, is this a tradition that goes back to the founding era or something? Is this something that the founders would have been familiar with? The answer is no. They wouldn't have been familiar with it, especially not as applied to public schools, because there really weren't public schools at the time of the founding.
And I'll fast forward a little bit to Stone v. Graham. Eventually, under what is known as the Lemon test, in Stone v. Graham, the Supreme Court struck down a statute very similar to the one at issue in Arkansas. The court held that there wasn't a secular purpose. Justifying having a secular purpose is one of the key prongs of the Lemon test. In 2022, the Supreme Court ruled in a case called Kennedy v. Bremerton that the Lemon test was not going to be used anymore. And in its place was going to be a history and tradition test, meaning that you would consult whether there was a history or tradition of the practice in question. And if there was, then it's probably not violative of the Establishment Clause. So that's the logical explanation for why all these statutes are fairly similar and are all coming about at this time. Because once Kennedy v. Bremerton got rid of the Lemon test, there was a sense that the next step in this battle over whether to have religion in public schools or not was getting Stone v. Graham overturned.
Daniel Caruth: As these things go through the courts, have we seen these types of Ten Commandments laws come up before? After Stone v. Graham and between 1980 and that 2022 period, did we see similar statutes like this come up before? Or is this really after that 2022 decision — is that when the dam really broke and these cases started to come up more?
Thorlin: So there's a really interesting discussion in Judge Brooks' decision on this. There were subsequent cases, not necessarily about the Ten Commandments, but about school-wide dissemination of religious speech — in a variety of different contexts. And those cases the Supreme Court has recently referenced, as recently as last year, in favorable terms. So after the overturning of the Lemon test and after the decision in Kennedy v. Bremerton, Judge Brooks clearly knew that he would have to anticipate this objection. And his decision addresses it in the idea that the other cases that came after Stone v. Graham are still being referenced favorably. So maybe we can infer then that Stone v. Graham is not necessarily dead letter or dead law at this point.
Caruth: I think for most of us, when we think about religion and law, what we've always been taught if you grow up in the U.S. is there's a separation of church and state. But I feel like those lines are getting blurred, or people are trying to redefine those lines through the legal system and through these laws. Are there things that, as a layperson, we don't understand about how the courts and the legal system understand religion in public spaces, in public speech, in public schools — how those things are litigated and talked about?
Thorlin: That's kind of what we're taught in school — separation of church and state. And that's honestly not an inaccurate way of describing the upshot of the religion clauses of the First Amendment. But there are kind of two separate clauses. There's an Establishment Clause and a Free Exercise Clause. The Establishment Clause is supposed to prevent establishment of a state religion, and that usually goes toward things where the government is endorsing some specific religious sect or something like that. The Free Exercise Clause is about whether an individual person can do their religious rituals, teach their children the way they want them to be taught about religion, things like that.
I think one thing that's not obvious from the outside is how much those things have been changing in recent years. The Establishment Clause has been considerably weakened, while the Free Exercise Clause has been strengthened a lot. And that generally is because liberals are more concerned about Establishment Clause violations, where the state is really pushing one religion. And conservatives generally are more concerned about Free Exercise violations, where the state's not allowing someone to do what they want to do for their religious practice. For example, during COVID-19, there were a lot of allegations that restrictions on church gatherings might be Free Exercise violations.
But the interesting thing — last year in Mahmood v. Taylor, the court said that you couldn't require a student to read LGBTQ material in school that violated their religious beliefs without giving the parents a chance to opt out. Why does that matter? Because it kind of means that this Ten Commandments issue really started as an Establishment Clause case. Stone v. Graham was an Establishment Clause case, but the Free Exercise Clause has now become so powerful that it actually might — this case, the Ten Commandments case, may now be more about the Free Exercise Clause than the Establishment Clause. It might be more about: if you send your children to school, are they being compelled to take in religious indoctrination in a religion that is not your religion? And that's both a novel thing and speaks to a broader trend about how strong the Free Exercise Clause has become — to such an extent that now it may be stronger even than conservatives might want. And that's going to be an interesting dynamic to watch play out as this case goes further up. I think it's pretty inevitable that these cases will ultimately end up at the Supreme Court in a couple of years.
Caruth: Well, take us through that. The AG's office has said they're going to appeal this. What is that chain of events? How does this case — or any one of these lawsuits — make its way up to the Supreme Court?
Thorlin: So now that Judge Brooks has reached his ruling, it's going to be appealed to the 8th Circuit Court of Appeals. It's going to be heard there by a three-judge panel. And depending on what the three-judge panel finds, the entire circuit might vote to rehear the case in what's known as en banc, meaning they all hear the case at once.
That just happened in the 5th Circuit because, basically through the luck of the draw, the Louisiana Ten Commandments case's three-judge panel voted to strike down the law. And the overall 5th Circuit is quite conservative. There was a natural sense among judicial watchers that the whole 5th Circuit might have come out with a different outcome. It was interesting to see that they didn't actually reach the merits of the question, which leaves us still wondering what the whole 5th Circuit would say about this. And now we're just delayed another year or two while Louisiana puts up the Ten Commandments posters and then gets sued.
So the reason that matters is: eventually, let's say Louisiana wins at the circuit court level — then the plaintiffs can appeal to the Supreme Court. They are more likely to vote to hear the case if there's what's known as a circuit split. So if the 5th and 8th circuits come out with different rulings on the constitutionality of these posters, then it would be more likely the Supreme Court would have to resolve the split. And if there is a group of conservative justices who want to overturn Stone v. Graham, they won't necessarily have to wait for a circuit split. It's not certain that the Supreme Court is going to take the case, but I think it's probably pretty likely. It also only takes four justices to take a case. And I suspect there are very likely at least four votes to overturn Stone v. Graham. So it's probably going to be the case that it will eventually get there in the next couple of years.
Caruth: Coming back to Arkansas and to where we stand now — obviously K-12 schools take down the posters. But at the university, you can probably walk out and look right at a poster right now. Why do some places still have them up? What does it mean for people on the ground here who are living with this and trying to comply with the law?
Thorlin: So this is a really interesting twist in this case. The permanent injunction only applies to K-12 schools because the plaintiffs were only from K-12 schools. There wasn't a plaintiff from the university. The interesting aspect of this is that usually that doesn't matter. Usually if you're not the specific plaintiffs in a lawsuit and you challenge a statute and it gets ruled facially unconstitutional — meaning it's unconstitutional in every application — then the state usually gives up on trying to enforce it against people other than the plaintiffs. So, there is a constitutional provision on the books in Arkansas that prohibits atheists from holding office. The Supreme Court has ruled that provisions like that are unconstitutional, but the provision is still on the books. In theory, Arkansas could try to enforce it, but they don't, because they understand that the logic of the ruling is so clear that it would apply.
So the question is, why does the university think that this ruling is not clear enough that they have to take down the posters? Because they've announced, I believe, that they are not taking down the posters. Now, Judge Brooks' opinion doesn't really rely on this aspect, but there's at least some argument that children in K-12 education are more susceptible to coercion — they're in a more formative stage of their education than a university student. And therefore, the university might not be subject to the exact same rationale for striking down this statute.
The interesting aspect of that is that the university also runs a preschool daycare program, and the poster is still up there also. So it's not clear how they think the ruling wouldn't apply to a preschool student if they are perhaps even more susceptible to coercion than a kindergartener. And the reason this matters is because if they keep the posters up and there was a clear implication of the ruling that it was illegal to keep them up, then they are potentially incurring liability in a future lawsuit by effectively ignoring the implications of the court's ruling.
Caruth: Going down the line — what are you looking at as this lawsuit continues and reaches its eventual conclusion? What do you think the fallout will be for us here in Arkansas?
Thorlin: On appeal, the 8th Circuit generally tilts a bit conservative. So I would say it's probably more likely than not that a conservative set of judges hears the case. It is entirely possible that they get a majority conservative judges panel and still rule to strike down the law. That's basically what happened in the 5th Circuit.
So what does it mean for Arkansas? We're in for a couple of years of unpredictability and instability, I would say. Right now there's a permanent injunction, so the posters are gone for K-12 — still up at the university. If the 8th Circuit overturns Judge Brooks' ruling, then the posters go back up. And then there's going to be another appeal level to the Supreme Court, or another rehearing en banc. So there's potentially a lot of posters going up and coming down. I think it's basically inevitable over the next couple of years that, unless every level of court decides the same way that Brooks did, you're in for a lot of back and forth. And a lot of custodial departments are going to be annoyed at how often they have to put up and take down these things.
Caruth: Lastly, for those of us out here who don't go to a public building every day, don't have kids in a public school, don't work at a university — why should we care about this law? Why does this matter? Why should we be interested in following this suit as it goes forward?
Thorlin: I would say it's probably more accurate to think about these cases less as, once the Ten Commandments are up in public schools that will be the end of it, and more as a constant push between people who want to have more religion involved in public life and less religion involved in public life. The next step will certainly be going after other precedents relating to religion in the public square, and they will keep getting more and more present in people's lives, presumably, as these decisions continue to unfold. So I would say if you don't have kids in public schools, you don't necessarily care about this specific issue. I think it's more accurate to think about this as almost the front line in an ongoing war. But it's all very dynamic and anything can change at the Supreme Court level. Also, the composition of the Supreme Court could change, and that would change the outcome. There are justices who are considering retiring. So there's just a lot of unpredictability. And it's an important enough issue that it will eventually probably impact everyone.
John Thorlin is an assistant professor at the University of Arkansas School of Law, with a special focus on the U.S. Constitution's religion clauses. He spoke with reporter Daniel Caruth on Tuesday.
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