From the Newsletter | Squeezing More Juice out of the Lemon Test

By | Jun 20, 2024
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“If you want to respect the rule of law, you’ve got to start from the original lawgiver, which was Moses.”

These were the words spoken by Louisiana Governor Jeff Landry yesterday before he signed HB 71, a law requiring Ten Commandments posters no smaller than 11 x 14 inches to be displayed in all public school classrooms in the state, from kindergarten through college. The commandments—which, according to the account in Exodus, were dictated by God and chiseled on stone for Moses to share with the Israelites some 3,500 years ago—must be presented in a “large, easily readable font” and must be the “central focus of the poster.”

The Ten Commandments have often been a point of public wrangling.  In 2011, Moment published “10 Commandments 2.0,” in which we asked a range of scholars about the modern relevance and meaning of the Decalogue. “Although Jewish tradition counts 613 commandments in the Torah, the Ten have taken on a life of their own, inspiring millions of Jews, Christians and Muslims over the centuries and evolving into a symbol of morality that has influenced Western thinking,” we noted in the intro. “Over the past 50 years, they’ve become a contentious subject in the United States, emerging at the heart of the culture wars between conservatives and liberals who disagree over their role in American law and ethics.”

Here we are, over a decade later, and the battle continues. The American Civil Liberties Union, Freedom From Religion Foundation and other secular advocacy groups have already announced plans to sue on the grounds that the new law violates the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” They argue that it amounts to religious coercion to display the divine directives in public schools.

In 1980 Kentucky tried to enact the same law, and in that case, Stone v. Graham, the Supreme Court ruled that displaying the Ten Commandments in classrooms violated the establishment clause. However, while the Constitution hasn’t changed, the Supreme Court has. Which is why after signing the bill into law, Landry said, “I can’t wait to be sued.”

Moment readers will recall Marshall Breger’s analysis of the 2022 SCOTUS case involving a high school football coach who was leading his players in Christian prayer on the field after games. The ruling in favor of the coach essentially squeezed the juice out of the Lemon test (from Lemon v. Kurtzman, 1971), which had been used for decades to determine establishment clause violations. It required a religious law or practice to have a secular purpose that superseded any effect that advanced or inhibited religion.

Referring to Justice Neil Gorsuch, who wrote the majority opinion in the 2022 case, Breger wrote, “Gorsuch apparently believes that such public religious exercises instead model a sort of peaceable kingdom where students understand that learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society.’ The prophet Isaiah, at least, understood that this idyllic vision reflected messianic times. In our flawed (a Catholic would say sinful) world, authority figures can coerce without intending to do so.”

Defenders of Louisiana’s new law say the Ten Commandments will serve as much needed moral guidelines for public school students of all religions or none. But aside from honoring the U.S. Constitution, are the Ten Commandments even relevant as a guide for how college students, let alone kindergarteners, should behave—even think?

The tenth commandment, usually shortened to “thou shall not covet,” is peculiar, says philosopher Susan Pashman. “It bans lusting after another’s stuff—an internal crime, if it is a crime at all.” Far better, Pashman says, would be: “Thou shalt create a society where there is little reason to envy another, a society in which each is reasonably satisfied with his portion, a society ruled by fairness, based upon consent.”

It’s worth noting, however, that the Louisiana law requires a Protestant version of the Ten Commandments be hung in classrooms. The final commandment of that version reads: “Thou shalt not covet thy neighbor’s house. Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.” Curious kids will first want to know what “covet” means, but how will teachers broach the meaning of coveting Mrs. what’s-her-name next door or what a manservant or maidservant may have meant in ancient days, especially given conservatives’ hysteria over discussing slavery, aka Critical Race Theory?

As the culture wars rage and we continue to witness challenges to long-held norms and established jurisprudence, here’s a final offering—not a command but a suggestion and a diversion, which is actually on topic—a list of great films, each with a thematic connection to one of the famous commandments.

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