by Michael Barbella
Legal conflicts are developing across the nation over the First Amendment’s Establishment Clause, as some states push for expanding the role of religion in public schools by incorporating the Ten Commandments or the Bible into state curriculum.
The Establishment Clause is contained, along with the Free Exercise Clause, in the U.S. Constitution’s First Amendment, which is the cornerstone of the nation’s right to freedom of religion. The First Amendment states: “Congress shall make no law respecting an establishment of religion (Establishment Clause), or prohibiting the free exercise thereof; (Free Exercise Clause)…”
The Establishment Clause prohibits the government from establishing a national religion or favoring one religion over another. The clause was interpreted by Thomas Jefferson in an 1802 letter as a “wall of separation between the church and state.” The Free Exercise Clause protects a person’s right to practice the religion of their choice or to practice no religion. A 2023 Pew Research study revealed that 28% of Americans do not identify with a particular religion.
The U.S. Supreme Court has ruled on many First Amendment cases dealing with religion in public schools. For example, in Engel v. Vitale (1962) the Board of Regents of New York proposed that children in public schools should start their day with a non-denominational prayer, which read: “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.”
In a 6 to 1 decision (two justices did not participate), the U.S. Supreme Court ruled that the prayer violated the First Amendment’s Establishment Clause. In the Court’s majority opinion, Justice Hugo Black wrote that a government-written prayer “breached the wall of separation between church and state” even though the prayer was non-denominational.
“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” Justice Black wrote.
The U.S. Supreme Court upheld Engel v. Vitale with its 1963 decision in Abington School District v. Schempp. In that case, the Court ruled that mandatory Bible readings in public school are unconstitutional.
Displaying the Ten Commandments
In June 2024, Louisiana passed a law requiring that public schools—from elementary schools to colleges—display posters of the Ten Commandments in all classrooms. The law mandates that the posters measure at least 11 inches by 14 inches and that the “text of the Ten Commandments shall be the central focus of the poster.” In addition, according to the law, a specific version of the Commandments, associated with Protestant beliefs, must be used. The poster must also include a four-paragraph context statement explaining the Ten Commandments “three-century history in American education.”
Soon after Louisiana Governor Jeff Landry signed the measure into law, several civil rights organizations filed a lawsuit on behalf of a multi-faith group of nine Louisiana families with children in public schools. The lawsuit alleges the law violates the First Amendment’s Establishment Clause and Free Exercise Clause.
One of the plaintiffs in the case, Rev. Jeff Sims, a Presbyterian pastor and father of three school-age children, told The Washington Post, “I want my children to understand scripture in the context of our faith, which honors God’s diversity and preaches all people are equal. This law interferes with my religious freedom—it tramples on it. We have a separation of church and state in this country to prevent just this kind of government overreach. As a pastor and father, I can’t sit by silent while our political representatives usurp God’s authority for themselves.”
The lawsuit states: “Permanently posting the Ten Commandments in every Louisiana public school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration [worship], and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that the law requires schools to display, do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences.”
In November 2024, a federal district court ruled in favor of the families. In a 177-page ruling, Judge John W. deGravelles, a U.S. district court judge for the Middle District of Louisiana, determined the Ten Commandments law “runs afoul” of legal precedent, is not neutral toward religion, and violates the U.S. Constitution’s Establishment Clause.
In the court’s decision, Judge deGravelles wrote that the Louisiana law is “coercive to students, and, for all practical purposes, they cannot opt out of viewing the Ten Commandments when they are displayed in every classroom, every day of the year, every year of their education.”
Dr. David W. Opderbeck, a professor at Seton Hall University Law School who serves in its Department of Religion, explains that the court described students as a “captive audience.” In other words, attendance at school is mandatory and the law requires the Ten Commandments to be displayed in every classroom so there is no way to ignore them.
The Louisiana court applied a test used in another 1980 case—Stone v. Graham—that also involved displaying the Ten Commandments, this time in Kentucky. The U.S. Supreme decided in Stone v. Graham that displays of the Ten Commandments were “plainly religious in nature” and violated the Establishment Clause. The Stone case relied on a 1971 case—Lemon v. Kurtzman—which came up with a test to detect religious coercion.
“Whether this kind of ‘coercion’ is unconstitutional may depend on what test the court applies,” Dr. Opderbeck explains. “Under the ‘Lemon test,’ such coercion could indicate that the law improperly promoted religion to create an excessive entanglement between church and state.”
Dr. Opderbeck notes that the Lemon test was abandoned with the 2022 Kennedy v. Bremerton School District case, where the U.S. Supreme Court upheld the right of a high school football coach to pray on the field after games. Because the Court abandoned the test, Dr. Opderbeck says, “It is not clear then, that this portion of the Louisiana opinion applied the correct legal test.”
Louisiana Attorney General Liz Murrill appealed Judge deGravelles’ ruling to the U.S. Court of Appeals for the Fifth Circuit. Murrill asked the appeals court to allow the law to take effect as scheduled in the 68 state parishes (the equivalent of counties in other states) not identified in the lawsuit. A federal appellate panel granted Murrill’s request. The law took effect January 1, 2025 in those 68 districts, but not in the five parishes outlined in the lawsuit—East Baton Rouge, Livingston, St. Tammany, Orleans and Vernon.
The Fifth Circuit heard oral arguments on Louisiana’s Ten Commandments law in January 2025. At press time, it had not issued a decision.
Teaching the Bible
In June 2024, Oklahoma State Superintendent of Public Instruction Ryan Walters ordered all public schools to incorporate the Bible into lessons for grades 5 through 12. In July 2024, Walters issued guidance on the classroom Bible instruction, requiring schools to provide teachers with physical copies of the Bible, along with the U.S. Constitution, and the Declaration of Independence. According to the guidance, teachers are to educate students about the Bible’s literary significance, its influence on Western civilization, its impact on American history, and its effect on the arts.
In a statement, Walters, who is a former public school teacher, said, “The simple fact is that understanding how the Bible has impacted our nation, in its proper historical context, was the norm in America until the 1960s and its removal has coincided with a precipitous decline in American schools.”
Teachers can incorporate the Bible into lessons several ways, according to the guidance: through textual analysis, comparative studies, critical thinking discussions, and historical documents/speeches.
“I think there’s a strong case to be made that biblical literacy is an important component of a broader religious literacy that is itself an essential component of cultural literacy, and that a broad religious literacy is essential in a religiously diverse democracy,” Mark A. Chancey, a professor of religious studies at Southern Methodist University, told Education Week. “But it’s hard to avoid the conclusion that Walters is trying to promote his own particular religious views over those of everyone else.”
In October 2024, several civil rights groups, representing more than 30 plaintiffs that include public school teachers, parents, and clergy, brought a lawsuit that seeks to stop Walters’ directive from going into effect. The lawsuit claims that the mandate violates the separation of church and state, and promotes one religion over others, thereby denying children their right to religious freedom. The mandate also violates the Oklahoma Administrative Procedures Act, according to the lawsuit, and other state statutes because officials failed to follow required rules for implementing new policies and for spending public money.
Dr. Opderbeck questions whether Walters’ directive truly represents a violation of religious freedom. The U.S. Supreme Court has ruled in the past that academic lessons that include the Bible are permissible under the First Amendment if they are secular in nature and not devotional.
“As I read the guidance issued by the Oklahoma Superintendent, the Bible is to be taught as an influential historical text from a variety of literary, artistic, ethical, and critical perspectives without promoting or favoring any specific religious belief. If that guidance is taken at face value, it seems to me acceptable under current and past Supreme Court precedents,” Dr. Opderbeck says. “Of course, it remains to be seen whether the policy is implemented in this neutral manner. And good arguments can be made in favor of also requiring other influential religious texts, such as Confucian, Buddhist, Hindu, or Islamic texts, alongside the Bible. Perhaps favoring the Bible over these other texts could present some Establishment Clause problems.”
Religious charter school
While the above cases have not yet reached the U.S. Supreme Court, in January 2025 the Court agreed to hear another Establishment Clause case—St. Isidore of Seville Catholic Virtual School v. Drummond. Also from Oklahoma, the case deals with a publicly funded religious charter school. In June 2024, the Oklahoma State Supreme Court ruled that the charter school violated “Oklahoma statutes, the Oklahoma Constitution and the Establishment Clause.”
Oklahoma Supreme Court Justice James Winchester wrote in the court’s opinion that public school “must be nonsectarian.” The opinion stated: “St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State.”
In January 2025, the U.S. Supreme Court agreed to hear the case. At press time, oral arguments in St. Isidore of Seville Catholic Virtual School v. Drummond were scheduled for April 30, 2025. A ruling is expected in June or July 2025—the end of the Court’s current term.
Discussion Questions
- Why do you think the Founding Fathers included the Establishment Clause and the Free Exercise Clause in the First Amendment of the U.S. Constitution?
- Do you think only learning about the Bible and not about other religious texts is fair? Why or why not?
- How could learning about the Bible in public school potentially affect the learning environment for students who do not believe in Christianity? Explain your answer.
Glossary Words
appealed— when a decision from a lower court is reviewed by a higher court.
evangelize—to seek to convert to Christianity.
majority opinion— a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
nonsectarian— not associated with any formal religious denomination.
plaintiff— person or persons bringing a civil lawsuit against another person or entity.
precedent— a legal case that will serve as a model for any future case dealing with the same issues.
secular— not sacred or concerned with religion.
statutory— based on legislative enactment.
upheld— supported; kept the same.
This article originally appeared in the spring 2025 issue of The Legal Eagle.