Legislative attorney: SCOTUS might not strike down allowing the Ten Commandments in AZ classrooms

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The U.S. Supreme Court might strike down a Republican-proposed bill that would allow the display of the Ten Commandments in public school classrooms — but there’s also a chance that it might not.

At least that’s what a legislative attorney told the Arizona state House Rules Committee on Monday.

Glendale Republican Sen. Anthony Kern, a member of the far-right Arizona Freedom Caucus, sponsored Senate Bill 1151, which would give public school teachers and administrators the option to display and teach the Ten Commandments.

Similar bills have been proposed in several other states this year, including Utah, where a watered-down version was recently signed into law, and in Oklahoma.

Kern, along with legislators in other states who introduced similar bills, has argued that the entire system of government in the United States is based on the Ten Commandments. Many historians and experts don’t agree with him on that.

Several Democrats, along with at least one Republican in the Legislature, say they feel strongly that this bill violates the Establishment Clause of the U.S. Constitution, which prohibits the government from creating any law “respecting an establishment of religion.”

But on Monday, House Rules Attorney Jennifer Holder told lawmakers that, although the Supreme Court struck down a similar Kentucky law in 1980 because it violated the Establishment Clause, that law required the display of the Ten Commandments instead of just allowing it. And since then, the court has changed the test it uses to determine what violates the clause.

“We can find support in the law that posting the Ten Commandments in public classrooms violates the Establishment Clause to the U.S. Constitution, but given the recent trajectory of the case law in this area, we also find support for the possibility that it could be upheld,” Holder said.

When the U.S. Supreme Court struck down the Kentucky law in Stone v. Graham, the court used the “Lemon” test, which asks three questions to determine if a law or practice violates the Establishment Clause:

• Is the primary purpose secular?

• Does the primary effect inhibit or enhance religion?

• Does it cause excessive entanglement between the government and religion?

The court found that the Kentucky law failed on the first question. But the court has since then started using a different method to decide if a law violates the Establishment Clause.

“Since then, the Lemon test has been watered down in favor of other approaches,” Holder said. “And over the last 20 years, particularly, the court has interpreted the Establishment Clause ‘by reference to historical practices and understandings.’”

In a 2022 SCOTUS decision, which Kern previously advised lawmakers to reference when deciding how to vote on the bill, the court decided that a public high school football coach had been wrongly terminated for praying with players after games.

In that decision, Kennedy v. Bremerton School District, the court said that it had abandoned the Lemon test to replace it with “analysis of original meaning and historical practices,” Holder said.

However, the Supreme Court found that the coach in this case didn’t violate the Establishment Clause because he prayed with players after games had ended, during their free time — not during class.

“We think the shift in the analysis makes room for courts to revisit the propriety of Ten Commandments in a public classroom, and to examine the historical practice and use of the Ten Commandments,” Holder said.

But while Holder said there’s a chance that the Supreme Court would uphold this law, there’s reason to believe it wouldn’t.

“On the other hand, the court has examined the use and placement of the text itself and suggested that Establishment Clause considerations are particularly strong in public classrooms, where children are ‘impressionable’ and would be ‘confronted with the religious text on a daily basis,’” she said.

The bill passed through the Rules Committee by a vote of 6-3, with only Republicans voting to clear it for floor debate.

The bill has already passed through the Senate and will next head to the full House for consideration, but Rep. David Cook, R-Globe, already told Kern he wasn’t sure how he would vote on the bill and that he would look to the rules attorneys for guidance.

But even if the bill makes it through a vote in the House, Democratic Gov. Katie Hobbs is likely to veto it.

This story was published earlier by the Arizona Mirror, an affiliate of the nonprofit States Newsroom network, which includes the Florida Phoenix.

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