Expert: Louisiana’s Ten Commandments Law Is Grounded in History and the Constitution

Following the recent passage of a bill in Louisiana that requires the Ten Commandments to be displayed in every public school classroom, the American Civil Liberties Union (ACLU) and other left-wing legal groups filed suit in federal court on Monday to block the measure. But legal experts say that the new Louisiana law should withstand legal challenges in light of American history and constitutional law.

The following is a transcript of “Washington Watch” guest host Jody Hice’s interview with Mat Staver, founder and chairman of Liberty Counsel. It has been edited for length and grammar.

HICE: When it comes to constitutional law and our country’s founders, it’s well documented. They had a good understanding of the Ten Commandments being the basis for our laws and our legal system. So with that backdrop, why would someone oppose public school students from gaining a better understanding and appreciation of the foundational documents that our states and our national government really relies upon when it comes to legal matters and how we stand?

STAVER: The ACLU and groups like Freedom From Religion Foundation, they have an agenda, and that is to wipe away anything that has a Judeo-Christian heritage or history. And certainly the Ten Commandments predate America. I wrote a booklet called “The Ten Commandments in American Law and Government” going through all 10 of the commandments, and I did this based on litigation, where we were defending the Ten Commandments displays all the way up to the United States Supreme Court. Since 2005, when the Supreme Court issued some decisions on this issue, we’ve never lost a Ten Commandments case, whether it’s a standalone case or it’s a case in the context of other legal documents like the Declaration of Independence, the Constitution, the Magna Carta, and so forth.

If you go back to the Ten Commandments prior to even the founding of America, they have for thousands of years influenced law and government societies and certainly had a big influence in Europe. That influence carried over here in the United States. And that’s why when you go to the United States Supreme Court, the most prominent display of any symbol in this court, inside and outside, is the Ten Commandments, which appears around 50 times both inside and outside the U.S. Supreme Court. Amazingly, the actual official seal of the Ninth Circuit Court of Appeals — which has been infamously known to be a very activist court — that particular seal has the Ten Commandments as part of it. It is prominent all over the United States. Why? Because it is critically important and influential in American law and government.

In fact, if you go back to many of our early states and in our judiciary laws and many, many court decisions, they actually referenced the Ten Commandments, when we are referring to laws such as theft, murder, being truthful under oath, and so forth. All 10 of the Ten Commandments have been cited as bases for law, like, for example, blasphemy laws [having to do with] libel or defamation in the context of this would be referring to some of the first four of the Ten Commandments — very influential.

What we have seen, however, is back in the 1970s there was an activist Supreme Court. [Monday] we celebrate[d] the overturning of Roe v. Wade from 1973. Well, two years ago this month, the court also overturned the 1971 decision Lemon v. Kurtzman from that liberal ’70s. And it was that decision that caused all kinds of chaos and havoc. But even under that decision of Lemon v. Kurtzman — which distorted the First Amendment, Free Exercise, Establishment Clause, and free speech clauses — even under that, we won time after time after time Ten Commandment cases. Now, with Lemon being overturned as of two years ago, the Supreme Court says we need to go back to a historical approach to the Establishment Clause. And when you do that with the Ten Commandments, that’s exactly why Louisiana took this opportunity to pass this law. They are on very good legal standing.

HICE: So you feel good with the language that they’ve put into this? As I understand, they’re referencing some U.S. Supreme Court rulings, as you just mentioned, in the language that they have. Why is this case going to be so important?

STAVER: Well, I think it’s very important because it’s one of the first cases post the overturning of Lemon v. Kurtzman in 2022 that actually addresses a religious symbol. Now, we’ve had other cases involving free speech. Our case that was part of overturning Lemon was the Shurtleff v. City of Boston, where they used Lemon to censor private Christian viewpoints. The other case was the Coach [Joe] Kennedy case. Those two combined together, they used Lemon to censor private viewpoints. But Lemon is gone, it’s over. It can no longer be cited. It was cited or referenced 7,000 times in law review articles, and now it’s history. Now we go back to a historical approach. And what the Tennessee legislature did is they actually cited cases such as the Van Orden v. Perry case that came out of Texas that upheld that standalone monument.

But even greater than that is this new sea change. We certainly remember that Roe was overturned two years ago [Monday], which was a huge change in 51 years of bad Supreme Court precedent. And now we’re focused on a historical approach to the First Amendment that is huge, not only for the Ten Commandments in public schools or the Ten Commandments in public places, but nativity scenes and other kinds of expression of religious, particularly Christian, viewpoints, whether they’re Bible clubs or churches. We have more freedom now than we had two years ago, and we need to exercise that freedom. And that’s what we’re seeing in this law. I think we will see many states follow the lead of this particular development.

HICE: We hear a lot about the “Lemon test.” Can you explain what is meant by that phrase, but also just how huge this whole reversal of Lemon is. Let’s begin with what’s meant by the Lemon test.

STAVER: Yeah, it comes from a 1971 case called Lemon v. Kurtzman. And in that case, the Supreme Court developed three tests to determine whether something violates the First Amendment Establishment Clause. And in doing so, they distorted and twisted the First Amendment. So this is the beginning of the ’70s activism. You have ’71 on Lemon. You have ’73 on abortion. You have ’77 with regard to protection for people of faith in the workplace, and that was overturned one year ago. Then you had ’78 the affirmative action admissions to colleges and universities, all from the ’70s activist court because they didn’t like faith, they didn’t like Christianity, they were pro-death. And they had a very liberal activist bent.

So Lemon v. Kurtzman was a case that was used to develop a three-part test. And that test was used to allow a lot of subjectivity. For example, a nativity scene could be constitutional if it was set up by the government, like if the city wanted to have their own nativity display, but it depended upon how many other secular symbols of the holiday were in that display. And it also depended upon how close they were. Was Santa Claus close enough to the nativity scene? Was a Christmas tree secular, or was it sacred? Was it close in proximity to the nativity scene? And sometimes you’d have to get out your measuring stick to decide whether or not this is constitutional. It is really nonsensical. So it allowed a lot of judges to wield autocratic authority based upon their own ideology, to strike down a religious display or to uphold it. I remember a situation where the Ten Commandments was literally etched on the courthouse wall in Philadelphia, and during a lower court decision which struck it down, they covered it while it was up on appeal. And thank God, the Court of Appeals reversed it. But they were going to literally chisel that off the outside of this courthouse where it had been there for decades and decades if the Court of Appeals went the wrong way. So that’s the kind of nonsense that we face now.

Thank goodness we’re looking at the First Amendment from its historical meaning and purpose. And when you look at that in context, the Ten Commandments, more than any other document through thousands of years, but certainly in America, have influenced our American law and government. We don’t have our laws that we have now absent the Ten Commandments. They clearly grew out of the Ten Commandments and were shaped by the Ten Commandments. So no wonder why it would be an appropriate display in schools as well as in public places. And that’s why we’ve seen it in so many different locations.

But they would rather keep the Ten Commandments — about not murdering, not stealing, honoring God, honoring your parents — they’d rather keep that from their view while they indoctrinate them and make people protesters and anti-American. I think this is a great move by Louisiana, and I think it will be upheld. Certainly we will file an amicus brief in support. We have lots and lots and lots of research. I was amazed when we delved into it back in the early 2000 as to how much the Ten Commandments literally have shaped our American law and government. We would not be the same country without the Ten Commandments.

HICE: I’m sure the ACLU’s argument will be you can’t be cramming your morality down the minds of these children. But this is more than that. They are cramming their immorality down the minds of our children with their LGBT ideology. But you bring up the whole historical role of the Ten Commandments and how they have played such an enormous role in the founding of our country and our legal system.

STAVER: Yeah, they really have. It is really surprising when you go into the United States Supreme Court. When you walk in up the big steps to go into the Supreme Court, every fifth symbol is the profile of Moses with the Ten Commandments. When you walk in the double doors, the Ten Commandments are etched on both double doors — a lot of times you don’t see it because the doors are open when you walk in. When you sit in the pew and you exit, the Ten Commandments are at eye level on each pew, both to the right and to the left. The Ten Commandments is the only document that actually is written inside the Supreme Court, and on the outside of the Supreme Court in the back of the building, Moses occupies the very central seat holding the Ten Commandments, with all the other lawgivers looking up to him. And that is because the Supreme Court building was created in the 1930s. But when you go through our country, to places like the Ninth Circuit Court of Appeals, which is 100+ years old. And that’s why it’s there on the seal. It’s a court of law, and the shorthand of that is the Ten Commandments.

In fact, if you go on a Google search for different kinds of research and you type in “Ten Commandments of” and an ellipsis, it’ll pull up tens of thousands of documents that will say something like “the Ten Commandments of gardening,” “the Ten Commandments of building a better house,” “the Ten Commandments of fixing your roof.” Why is that? Because the Ten Commandments have been shorthand for a rule of law. So we use it in a practical sense, but we’ve used it in a government sense and in a legal sense. It literally has shaped everything about our legal and governmental system in the United States, and not just in the United States, but throughout Europe and throughout millennia of human history.

HICE: Mat Staver, founder and chairman of Liberty Counsel, I can’t thank you enough. Liberty Counsel has done so much on this issue and so many other issues as well. We all just say thank you for your leadership and the incredible work of Liberty Counsel as well.