I have a short piece up at SCOTUSblog on the status of the "Lemon Test" and the recent enactments in a few states requiring the display of the Ten Commandments in public-school classrooms. Here is a bit:
Millions of American kids are returning to school this month, and to classrooms decorated with carefully curated displays, images, pictures, and posters. This décor is as much a part of teachers’ plans and aims as textbooks, worksheets, and lesson plans. It is meant to send messages – about history and values, about role models and recycling.
Over the past 15 months, legislatures in several states have called for particular additions to the communicative content of classroom walls. Specifically, in Louisiana, and then in Arkansas and Texas, laws have been enacted that mandate displays of the Ten Commandments. A wrinkle, though – a possible bump in the legal road for these messaging moves – is the fact that the Supreme Court, in a 1980 case called Stone v. Graham, struck down just such a requirement in Kentucky, concluding that it violated the First Amendment’s prohibition on establishments of religion because it had “no secular legislative purpose” and “serve[d] no [] educational function.”
Perhaps not surprisingly, then, a federal trial court blocked the Louisiana law, relying on Stone, and in late June a federal appeals court agreed. The Arkansas law was similarly enjoined earlier this month, and legal challenges to the Texas law are pending.
What is going on? Why did these states, in a kind of “blast from the past,” enact a demand that seems so clearly to conflict with settled and familiar court precedent? Answering these questions first takes us back to a 1971 case called Lemon v. Kurtzman and then forward to the court’s closely watched and much anticipated 2022 ruling in Kennedy v. Bremerton School District. . . .
. . . What does it mean for a law’s purpose, or for a law, or for a government action, or indeed for anything, to be “secular”? Sure, the Ten Commandments are “religious,” but they are also displayed in Spanish marble in the “secular” courtroom where the justices sit. The word is often thought to mean “anti-religious,” but that’s not right (even if anti-clericalism and hostility to religious belief and actors often travel with ideological secularism). The Catholic Church has had “secular” priests – that is, priests who do not belong to religious orders – for centuries. If we connect the term to its Latin origins, it simply denotes the things of this world, or age, as opposed to those of the next. Religion, though, is very much a part of this age, even as it concerns also and anticipates, in many cases, the next.
Government action that protects religious freedom relates to religion, and yet it still has a “secular” purpose; in our tradition, legally protected religious liberty is seen as conducive to human flourishing and healthy communities in this world. Government decisions to cooperate with, and to support financially and otherwise, the this-worldly work of religious agencies, schools, and hospitals has a “secular” purpose. Teaching children, even in state schools, what they need to know to intelligently read Augustine and Milton, Lincoln and King, has a “secular” purpose. Does posting the Ten Commandments, in one form or another, on the wall of a state-school classroom? We will find out soon.