Louisiana’s decision to force public schools to display the Ten Commandments is the latest fallout from a spate of controversial rulings from the rightwing supermajority of the US supreme court which has opened up a Pandora’s box that is fueling efforts to turn America into a theocratic state.
The new law, signed on Wednesday by the hard-right governor, Jeff Landry, puts Louisiana in the vanguard of a decades-long movement to obliterate the foundational US separation of church and state. It puts wind in the sails of those who want the US to be reinvented as an overtly Christian nation, and comes in the wake of two highly contentious opinions from the highest court.
Both rulings, delivered within six days of each other in 2022, were backed by the six ultra-conservative justices who now have a stranglehold on the country’s most powerful court. The supermajority is one of the main legacies of Donald Trump, who placed three of the justices on the bench.
The 2022 decisions chipped away at the bedrock principle that has guided the US since its inception. Enshrined in the first amendment of the US constitution, it stipulates that all faiths should be free to worship, yet none enjoy priority status as an established state religion.
“There’s no question that Christian nationalists are capitalizing on the recent supreme court cases. They are hopeful that the court is beyond repair and will undo years of precedent about religion in public schools,” said Annie Laurie Gaylor, co-president of the Freedom from Religion Foundation which is part of a coalition of groups challenging the new Louisiana law in the courts.
The first of the supreme court’s radical rulings, Carson v Makin, was delivered on 21 June 2022. In it, the conservative justices required the state of Maine to fund religious instruction in rural areas lacking a public high school – a command that flew in the face of the specific edict of James Madison, the main author of the first amendment, against taxpayers funding religious activity including education.
In a dissenting opinion, the liberal justice Sonia Sotomayor bluntly accused her rightwing peers of dismantling “the wall of separation between church and state that the framers fought to build”.
The second ruling, issued less than a week later on 27 June 2022, landed an even greater punch on the settled law relating to church-state relations. The decision, Kennedy v Bremerton, in effect overturned more than 40 years of supreme court precedent – it was as audacious and extreme a measure in the field of religion as the Dobbs ruling, which overturned Roe v Wade in that of abortion.
The Kennedy case concerned a football coach, Joe Kennedy, who had been placed on administrative leave by his public school outside Seattle after he repeatedly ignored instructions and held prayer sessions with student players after games on the 50-yard line. Kennedy falsely claimed the prayers were “personal” and “private”, when in fact he had a long track record of leading student athletes in prayer stretching back years.
The supreme court opinion, in siding with Kennedy, scrapped what has become known as the Lemon test, which since its elucidation in 1971 has clarified for judges how they should view whether government actions touching upon religion are constitutional. The test said that the courts had to consider whether such action had a “secular legislative purpose” – it should neither advance nor inhibit religion, and must avoid fostering “an excessive government entanglement with religion”.
The Kennedy ruling, written by one of Trump’s appointees, Neil Gorsuch, threw out that tried and tested formula and replaced it with a far more vague prescription based on “history of tradition”. Such woolly definitions are proving popular among the all-powerful rightwingers – they applied exactly the same recipe to the regulation of guns in their 2021 Bruen ruling, with similarly explosive results.
Sotomayor’s response to Kennedy v Bremerton was even more visceral than her previous outburst. She wrote a 35-page dissenting opinion that was longer than Gorsuch’s majority ruling.
It was certainly more angry. Sotomayor said the decision put the constitutional right to the free exercise of faith ahead of the establishment clause which prohibits government from forming an established religion. She pointed out that legal precedent demanded that those two potentially conflicting precepts should be ranked equally.
“This decision does a disservice to schools and the young citizens they serve, as well as to our nation’s longstanding commitment to the separation of church and state,” the justice wrote. Then she gave a chilling prediction: “In doing so, the court sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance.”
Louisiana’s governor must have been paying attention. By signing the new Ten Commandments law he has fulfilled Sotomayor’s warning.
He is taking the US down a perilous path that is all but certain to lead to the supreme court. The same supreme court that opened this Pandora’s box, and that shows no desire to close it.
