Court Okays Ten Commandments in Classrooms & Unequal Justice

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1:31This is Bloomberg Law with June Grosso from Bloomberg Radio. President Trump cheered laws requiring the Ten Commandments to be displayed in schools while speaking to a group of evangelical Christians as he campaigned in 2024. Who likes the Ten Commandments, by the way, going up in the schools?

1:57They think it's such a bad thing. I said, has anyone read the thou shalt not steal? I mean, has anybody read this incredible stuff? It's just incredible. They don't want it to go up. And now in a significant win for conservatives who've been trying to incorporate more religion into classrooms, the Fifth Circuit Court of Appeals has ruled that Texas can force public schools to display the Ten Commandments in classrooms. In a 9-8 vote, the full appellate court, considered the most conservative circuit in the country, ruled that the Texas law doesn't violate the separation of church and state. The challengers say they'll most likely appeal the case to the Supreme Court, a court that has expanded religious rights time after time.

2:47My guest is an expert on the First Amendment, Caroline Malikorban, a professor at the University of Miami Law School. Caroline, tell us how the Fifth Circuit reached this decision. So in order to understand the Fifth Circuit's decision, you first need to understand what the Texas law required and what the Supreme Court precedent was. So the Texas law is pretty straightforward. It basically required that in every single public school classroom, there had to be a Ten Commandments poster. It had to be sufficiently large, easy to read, easy to see. There couldn't be anything else around it. And they dictated the particular version of the Ten Commandments.

3:34Now, it's not surprising that this mandatory scripture on the wall triggered an Establishment Clause violation. The Establishment Clause, of course, is that part of the First Amendment of the U.S. Constitution, which requires some separation between church and state. Believe it or not, Texas was not the first state to mandate Ten Commandments in the public schools. Kentucky had tried the same thing about 45 years ago, and the Supreme Court had already made a decision about it in a case known as Stone v. Graham. the Supreme Court held this is a blatant violation of the Establishment Clause. There is no secular purpose for mandating biblical texts on schoolroom walls when you're not even incorporating it into any kind of secular education.

4:24It is unconstitutional. So there is a case directly on point that holds this kind of law violates the Establishment Clause. Unfortunately, the precedent doesn't stop there because the Roberts court has been very busy trying to dismantle protections of the Establishment Clause. And one way it's been doing that is by rejecting earlier tests that the Supreme Court has relied on. And the doctrine that was part of the decision in the earlier Ten Commandments case was something known as the Lemon Test. And the Lemon Test said, listen, You're violating the Establishment Clause if your law doesn't have a primarily secular purpose or it doesn't have a primarily secular effect.

5:11And the Roberts Court has said this is no longer the test we're going to use in the Establishment Clause. Instead, the touchstone for an Establishment Clause analysis is to look to history and original understandings. And so this is what faced the Fifth Circuit Court of Appeals. Now, the courts below had said, listen, there's still a Supreme Court case that's directly on point. It has not been explicitly overruled, and therefore it still controls. And therefore, this is not a difficult case. The Fifth Circuit, on the other hand, argued the precedent depended on a test that has since been rejected.

6:01And not only did it reject Stonely Graham as controlling precedent, it interpreted the Supreme Court guidance to look to history and understanding in a very narrow way. It basically adapted a concurrence from Gorsuch that said, and this was the Fifth Circuit's new rule for establishment clause challenges, is if this does not resemble something the original founders would consider a religious establishment, then it doesn't violate the establishment clause. And there was a short list of things it considered. It said these are the things that the founders thought was a religious establishment, and this does not resemble any of them, and therefore it doesn't violate the Establishment Clause.

6:54So that's what it held. It rejected the Supreme Court's existing precedent. It interpreted the Supreme Court's turn to history in a very particular narrow way and said this does not resemble a historical establishment, something that was an establishment at the time of our country's origins. And therefore, no problem whatsoever to have a Protestant version of the Ten Commandments on every single classroom in every single public school in Texas, regardless of whether it's the science lab or the library or the music room or your English class. So once again, we have to go back in time and discover what the founders thought.

7:40According to the Fifth Circuit, nothing violates the Establishment Clause unless it would be akin to, unless it would resemble what the founders would think was a religious establishment. And on their list of things that were considered a religious establishment is compelling people to go to church. And their argument is the Ten Commandments posters has absolutely nothing to do with compelling people to attend church. But you could easily make the argument that they are very analogous, right? Because what's really going on with mandatory church attendant? It's the state is compelling attendance at a church with forced exposure to someone else's religious tenants.

8:30That's the same thing here. The state is compelling attendance at school with forced exposure to someone else's religious tenants. So even under their own test, you could easily make an argument that mandatory Ten Commandment posters in every single public school classroom does resemble one of those religious establishment dating to the founding. And again, that just goes to show how manipulable these tests are, how much discretion there is in their application. In other words, it almost doesn't matter what test the court uses. If it's determined to uphold them, they will find a way to uphold them.

9:19But looking at history, can we tell what the founders thought about this? And has there ever been a time in our history when it was considered okay to force schools to put up the Ten Commandments in classrooms. I mean, there are always tons of problems with relying on history as guidance for constitutional rights. One is, why should our rights today turn on what people 250 years ago thought? They're not known for protecting people on the margins, right? It's ridiculous to tie our protections today to a time that was notoriously unsympathetic. That's just the most problematic aspect. Another problem, as we might see in this case, is there were no public schools at the time of the founding.

10:11So public schools came rather later. They came in the mid 19th century. So it's like, who knows what they might have thought? Like any attempt to apply an original understanding of what you could do in public schools is necessarily going to be a matter of interpretation and discretion. Which brings me to another problem with relying on history is it's endlessly manipulable. There's just so many ways you can interpret history. You can easily pluck out your most favorable historical compartments and say, this is it. Or you can just ignore what doesn't suit you. You could define what you're looking at at a completely different level of generality.

10:55In any case, we don't know what the founders would have thought about what should be allowed in public schools because there were no public schools at the time. And even at the start of the public schools, there was actually a lot of hostility toward Catholics. So there was sort of Protestantism in the public schools. That was a problem. And it is a problem the Supreme Court itself has recognized. So the actual practices at a particular historical era don't always reflect our constitutional ideals. And the Supreme Court itself has said we reject what they did to the Catholics. This message is brought to you by Apple Card.

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14:22So the one time the court has actually understood that maybe history should not be the perfect guide to our constitutional rights today. I mean, I could go on and on, but basically they insisted on this veronar test. And again, lots of reasons why history should not be a guide, but even if it is a guide, it's not necessarily what the Supreme Court decisions require in terms of relying on history. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Caroline Malikorbin. You might remember the Supreme Court case where religious parents were given the right to opt their children out of class when books with LGBTQ characters were being read?

15:07How did the Fifth Circuit reconcile its decision with that Supreme Court case? I'm June Grosso, and you're listening to Bloomberg. A divided Fifth Circuit Court of Appeals has ruled that Texas can enforce a law requiring that the Ten Commandments be displayed in public school classrooms. In a 9-8 decision, the majority came up with a new test, whether the law resembles establishment of religion as it was understood at the time of the nation's founding, and said the Texas law looks nothing like a historical religious establishment. Eight judges dissented, with some arguing that the Supreme Court's precedent in Stone v.

15:54Graham was still good law and that the Texas law violates the First Amendment. I've been talking to First Amendment law expert Caroline Malacorbin, a professor at the University of Miami Law School. Caroline, what also struck me about this decision is that there was that Supreme Court case, Mahmoud, which you and I discussed at the time, saying that parents could opt their children out of LGBTQ material that contradicted their religious beliefs. And here, the Fifth Circuit said, the measure doesn't restrict parents' right to direct their children's religious upbringing. I mean, how do they possibly distinguish that case?

16:34So this is the case that we discussed earlier, which is a case involving picture books with LGBT characters in them that were part of the English curriculum in some public schools. And some conservative religious folks claimed that having their children hear these stories about same-sex marriage when that same-sex marriage was not condemned violated their religious rights. And therefore, they had a free exercise right to opt their children out of hearing their stories. And the Supreme Court, always sympathetic to very conservative Christian concerns, said, absolutely, it's a violation of your free exercise rights for your child to be exposed to same-sex marriages in a positive way because that's contrary to your anti-same-sex marriage beliefs, and you are allowed to opt out.

17:31answer your question is a very good one is, isn't this even worse, right? Isn't this an even more direct affront to non-inherence beliefs to be presented with the Ten Commandments everywhere they turned, which is contrary to their own beliefs, like it clashes, just like the same-sex marriage clashes with my beliefs, the Ten Commandments clashes even more directly because they're religious. And surely the Mahmood case would support the approach to the Ten Commandments as something problematic and something that should not be allowed. The Fifth Circuit distinguished it in two ways. First, they exaggerated the harm to the parents in Mahmood, and they ignored the harms to the parents who opposed the Ten Commandments.

18:25And so they claimed in Mahmoud that the teachers were taught to shame the children for feeling what they believed, that it was a direct assault, and that there's no way the children could avoid having their beliefs challenged by authority figures. So they slightly mischaracterized what was actually going on in the case involving storybooks with LGBT characters. And then in this case, they downplay any of the consequences of the Ten Commandments because they said no one is forced to recite them. No one is forced to affirm them. They're just there. But obviously, the two are exactly analogous, If you're going to argue that exposure to something contrary to your beliefs is coercive, then clearly exposure to the Ten Commandments everywhere you turn, contrary to your beliefs, should also be coercive indeed.

19:35It's like you made the argument that the school was endorsing same-sex marriage. Obviously, the school is endorsing the Ten Commandments. Otherwise, it wouldn't be in every single classroom. And again, you'd think the Ten Commandments everywhere your child turned would be a more direct challenge to a non-adherence religious liberty than a story with an LGBT character. But that was not how the Fifth Spirit played it out. Again, it overstated, it mischaracterized what was going on in Mahmood, and it ignored what was actually going on with the Ten Commandments law. And if you look at what Texas officials said in celebrating this Fifth Circuit ruling, the Texas Attorney General said that it's important that students learn from them the Ten Commandments every single day.

20:27And the bill's sponsor said it's incumbent upon all of us to follow God's law. And I think we would all be better off if we did. So doesn't the intent of the law seem pretty obvious? I mean, there's so many aspects of this case that they ignored. They mentioned nowhere the obvious intent behind the lawmakers. The other thing, as one of the dissent points out that they completely ignore, is that the Supreme Court has historically been very mindful of the Establishment Clause in the public school context for several reasons. Right. One, the state requires children to be there. So they're already using coercion and requiring their attendance.

21:16Second, these are young children. These are impressionable children. And they're very influenced by what happens in school. They're very influenced by their teachers, by their peers. There's a lot of pressure on them to conform. And third, this whole idea is parents are trusting them to schools on the understanding that they're not going to try and inculcate them in a religion not their own. And so even when the Supreme Court was moving away from more protection under the Establishment Clause, it has historically been especially careful when it comes to children in public schools. And there was zero mention of that in the majority's opinion.

22:01Although the Supreme Court has allowed a high school football coach to pray on the 50-yard line right after games, saying his players wouldn't feel coerced to pray alongside him. So not if, but when this gets to the Supreme Court, how do you think they'll rule? I have little confidence in a principled decision from the current Supreme Court when it comes especially to issues involving the rights of conservative Christians and doing what they want. I think it's a white Christian nationalist court. I think they'll decide whatever is favorable to white Christian nationalists. So I think that they would probably end up upholding this law.

22:45Now, there are a lot of different tactics that they might use to do it. They might not do what the Fifth Circuit did. They might try and dodge it by not finding standing. They might do it by something I call secular washing. What they might try to argue is that the Ten Commandments is not ultimately a religious doctrine, but a secular item. It's not about inculcating particular religious beliefs. It's about explaining or showing the role of religion in our nation's history, trying to make clear the origins of our political structure or law. None of that's true. But one thing the Supreme Court has done in other cases where there is some object that's obviously inherently religious and therefore should be problematic under the Establishment Clause is the court has said, no, no, no, this is not actually religious like you think.

23:47so it's not a problem like you think and one particular case that comes to mind is a challenge to the very large latin cross monument in the middle of the highway and you think that's the preeminent symbol of christianity and the court was like no no no no no it's not you know you don't understand it's actually just a symbol of world war one and therefore there's no problem with it. And they've done that with the Ten Commandments as well. They've already laid the groundwork for arguing that the Ten Commandments is not religious scripture. It's not trying to proselytize. It's an educational document about our country's history and the origins of our law and government.

24:33So how about this? There are six Catholics on the Supreme Court. And here, Texas is putting up Protestant versions of the Ten Commandments. Isn't that showing favoritism to Protestants over Catholics? What about that? Right. So another rather astonishing move in the Fifth Circuit decision is if the established clause means anything, it means the state can't favor some religions over others. It can't say, you know, Catholics are our favorites or Protestantism is the true Christianity as opposed to the others. And the other thing people need to know is there are many different versions of the Ten Commandments.

25:15The Protestant version is different from the Catholic version, which is different from the Jewish version. They all have slightly different emphases and wording. And the one that's mandated here is the Protestant version. So how does the Fifth Circuit deal with the fact that this is clearly preferring one denomination over the other, it says, yeah, we know that you're not supposed to favor some denominations over others. Like you can't give money to Protestants, Catholics, but that just doesn't apply to symbols. That's their argument. It doesn't apply to symbols because if it applied to symbols, then we couldn't have government sponsored religious symbols.

25:59You know, there's another conclusion to draw, which is that maybe there shouldn't be government-sponsored religious symbols, right? Maybe that's what the Establishment Clause requires rather than a rule that says the Establishment Clause doesn't care about government religious symbols. So that's what the Fifth Circuit said about it. It was fine. They just said, well, obviously, it can't apply because the Supreme Court has once upheld the Ten Commandments with this exact language, even though the Supreme Court had done a very detailed contextual analysis of the Ten Commandments in that particular situation.

26:35It was not a Ten Commandments all on its own on classroom walls in public schools that children had to attend and look at all day long. That's not there. They just said it doesn't apply to symbols. But yeah, you would think, again, there are so many ways this is such an easy case because even the current Supreme Court would agree that the government cannot favor one religion over others. and this Ten Commandments not only favors Christianity over all other religions, it favors some Christian denominations over others, and you would think that would be problematic. So that's a good question. I don't know what the Catholic Supreme Court justices would make of the Protestant version.

27:22And we may have to wait quite a while to find out the answer. Thanks so much, Caroline. It's always a pleasure to have you on. That's Professor Caroline Malacorban of the University of Miami Law School. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios. One of these tools is called Generated Assets. It allows you to turn your ideas into investable indexes. So let's say you're interested in something specific like biotech companies with high R &D spend, small cap stocks with improving operating margins, or the S &P 500 minus high debt companies.

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