Religious freedom on the ballot, in the courts and affecting your community

When constitutional standards shift, so do the tactics required to maintain a vision of faith freedom for all. The Religion Clauses of the First Amendment protect the free exercise of religion for everyone and against its establishment by the government, creating conditions for us to live with deep differences and come together for common purposes. But, the experience of religious liberty depends on all our efforts — not just in the courts, but in legislatures, state agencies, conversations and compromises in communities.

Recent developments concerning religion and education across the country illustrate how challenges are arising today, what is at stake, and how an all-hands-on-deck approach is needed.

It has been more than two decades since the U.S. Supreme Court narrowly upheld a Cleveland, Ohio, school voucher program against a federal constitutional challenge in Zelman v. Simmons-Harris (2002), and it has been much longer since advocates began pushing for taxpayer-support for private schools, including religious schools. But the Court in Zelman did not suggest that vouchers were a good idea, nor did it immediately usher in voucher programs across the country. Other legal barriers existed, such as state constitutional provisions that are more stringent against such funding. Plus, vouchers tend to be controversial and lack widespread support.

Progress by proponents of “school choice” (another term for voucher programs) has been aided by more recent decisions of the Court, but vouchers remain unpopular in many states for reasons concerning costs, effectiveness and fairness, as well as raising religious concerns. Public funds should support public schools, and several states are making clear that is what they want as they reject voucher schemes at the ballot box. (Read about three states rejecting vouchers in the “latest news” section of our website.)

Changes in legal standards for deciding cases by the U.S. Supreme Court also have encouraged misguided efforts to inject religion into public schools in problematic ways, such as through school curriculum with Christian nationalism themes and required postings of legislature-selected Scripture on classroom walls.

Fortunately, in a preliminary but thoroughly explained (177 page) decision, a federal district judge in Louisiana held that the state’s new law (H.B. 71) requiring the posting of the Ten Commandments in every public school classroom is unconstitutional on its face and unconstitutional in all applications. In other words, the constitutional flaws are abundant, violating both the federal Establishment Clause and Free Exercise Clause. The court found that the facts and circumstances were similar to those reviewed and found unconstitutional by the Supreme Court in Stone v. Graham, a 1980 decision striking a similar law in Kentucky. As the plaintiffs argued — and Louisiana could not refute at this point — Stone was squarely on point and settled the matter.

The decision includes the stories of the nine families from various religious and non-religious traditions who challenged the law. A part of the opinion that may be particularly helpful for future conversations in your community shows how the act is not a simple nod to moral encouragement but damaging to religious freedom. The court stated: “In short, the Act 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. As the Supreme Court recognized in Stone, ‘[i]f the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments[,]’ and this is particularly true considering the ‘heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.’”

The litigation is not entirely over, but for now, Louisiana is prohibited from requiring that the Ten Commandments be posted in every public school classroom. There is more to this decision, including references to a report by Professor Steven K. Green, a law professor and legal historian, that refutes the claim that the Ten Commandments are the basis of the American legal system.

This decision is a big win for religious freedom and the importance of protecting individual students’ rights, and it is a warning of what may be ahead in other states, especially if the U.S. Supreme Court continues to water-down constitutional protections. It also demonstrates the importance of opposing such efforts and showing why they are harmful to communities.

Holly Hollman is general counsel of BJC.

This article originally appeared in the winter 2024 edition of Report from the Capital. You can view it as a PDF or read a digital flip-through edition.