A lively oral argument filled the en banc courtroom of the U.S. Court of Appeals for the Fifth Circuit on Tuesday afternoon in New Orleans, to address this simple question: may states require the posting of the Ten Commandments in public school classrooms? Louisiana, Texas, and Arkansas have enacted new laws requiring this, which had been banned throughout the United States since 1980.

That was when a 5-4 Supreme Court held, in Stone v. Graham, that state legislatures could not require the posting of the Ten Commandments in public school classrooms, even if privately funded. That decision was based on a judicial finding of a religious purpose, which the Court held rendered it in violation of the Establishment Clause.

The Supreme Court has since repudiated the use of a religious purpose test to evaluate state legislation under the Establishment Clause. The entire Lemon test, which was promulgated in 1971 by the Supreme Court in Lemon v. Kurtzman, is no longer good law.

The ACLU argues that a Ten Commandments display in every classroom would have a coercive effect on students. It objects to the use of the King James Version of the Ten Commandments, as found in the Book of Exodus Chapter 20, rather than Jewish or Catholic translations.

Judges........

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