Kentucky Attorney General Russell Coleman issued an opinion last week that the Ten Commandments can be displayed in public school classrooms and on the Capitol grounds in Frankfort without violating the First Amendment — breaking from decades of legal precedent.
Coleman argued that recent federal court rulings have paved the way for the commandments to be displayed in public settings without violating the Constitution. Kentucky has statues on the books requiring such displays, but they were blocked by past U.S. Supreme Court rulings.
Dozens of current state lawmakers requested the opinion on both subjects as legislation advances in the Kentucky General Assembly requiring a Ten Commandments monument to be returned to Capitol grounds, four decades after it was removed.
Several previous court decisions — including a 1980 Supreme Court ruling on Kentucky’s statute requiring the Ten Commandments be displayed in public schools — found that requiring the display of religious symbols like the Ten Commandments in public spaces violates the First Amendment’s Establishment Clause, which prohibits the government from favoring one religion over another, until recently.
“Judicial decisions striking down previous Kentucky statutes providing for the display of the Ten Commandments were firmly grounded on the now repudiated Establishment Clause test announced in Lemon v. Kurtzman,” the Coleman opinion reads.
It was the precedent set in the 1971 Lemon decision that overturned Kentucky’s laws to promote the Ten Commandments in public spaces. The so-called “Lemon test” found that laws must meet three requirements to pass constitutional muster: they must have a secular legislative purpose, must primarily neither advance or inhibit religion and must not result in “excessive government entanglement” with religion.
Coleman argued in his opinion that the Supreme Court had abandoned the Lemon test, and that the Ten Commandments can be displayed on public property so long as it is an effort to “acknowledge the historical significance of the text,” not primarily for religious reasons.
Kentucky Attorney General opinions do not have the force of law, but the office says “public officials are expected to follow them.”
ACLU Legal Director Corey Shapiro said Coleman’s opinion is “non-binding” and fails to “defend the law as it is today.” He said public school officials would be ill-advised to act on the opinion.
“The law is clear,” Shapiro said. “As of today, that law has been overturned by the U.S. Supreme Court, and notwithstanding a non-binding opinion, lawyers typically do not advise their clients to intentionally ignore Supreme Court precedent.”
In addition to the 77 current state legislators who requested the opinion from Coleman — all but one of whom was Republican — the opinion was also requested by several former Democratic lawmakers, including former House Speakers Greg Stumbo and Jody Richards.
Claudia and Tom Riner, a married couple that each represented a Louisville House district for nearly four decades as Democrats, also requested the opinion. Claudia Riner was the lead sponsor of the 1978 law requiring a Ten Commandments plaque in each public school classroom, and both Riners were known as among the most ardent social conservatives when they served in the House.
In Schools
The statute that requires the Ten Commandments be displayed in every public classroom in the state was passed in 1978 and is still technically on the books in Kentucky, with a legislative footnote that it has been overturned in the courts.
The law specifically requires the Ten Commandments be 16 by 20 inches and the following notation in small print at the bottom: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The statute specified the “durable, permanent copy” be purchased with private donations, as funds became available.
The Kentucky Department of Education did not respond to questions on how or if they intend to act on Coleman’s opinion.
Two bills introduced in the state House of Representatives seek to reinstitute the Ten Commandments in public schools, to varying degrees. One bill, sponsored by GOP Rep. Josh Calloway from Irvington, would repeal and then reenact the existing statute, reaffirming it legislatively.
Another bill would put in place somewhat softer language, merely allowing local school boards to allow teachers to read or post the Ten Commandments in public schools, placing the religious doctrine on the same level as historical texts like the Declaration of Independence or the Mayflower Compact.
In his opinion, Coleman acknowledged the Supreme Court has not overturned the 1980 decision that ruled Kentucky’s statute unconstitutional. He argues that the statement noting the historical significance of the Ten Commandments demonstrates “the secular, educational purpose of the displays.”
Coleman cited a 2022 Supreme Court decision, Kennedy v. Bremerton School District, which found the government may not suppress an individual's religious observance for the sake of maintaining the separation of church and state. In the decision, justices argued for reference to historical practices and an “understanding of the Founding Fathers.”
The attorney general also cited a recent legal challenge in the federal courts against a new Louisiana law requiring the Ten Commandments be displayed in public schools. A federal judge blocked the law last year, but Coleman filed an amicus brief in support of Louisiana in the state’s appeal, making the same arguments that such a law using historical context complies with the Establishment Clause.
Shapiro with the ACLU said Coleman’s opinion “glosses over” several other Supreme Court cases that stop public schools from promoting religious messages to students. He said the Ten Commandments is undeniably a religious text and does not belong before a “captive audience” of school children.
“The history of this country is about people fighting to stop religious instruction in the classroom. That is the history and tradition of our commonwealth, of the people here, of minority religious views,” Shapiro said.
Capitol monument
A fraternal organization in 1971 donated a granite monument inscribed with the Ten Commandments to the state, which was displayed on the Capitol ground in Frankfort until the early 1980s, when it was moved to storage to make room for a construction project.
Still in storage by 2000, the legislature passed a joint resolution ordering it to be returned to the Capitol grounds, only to have that move blocked by the federal courts after the ACLU filed a lawsuit.
In a joint resolution introduced this year, Republican state representatives called for the permanent return of that monument, saying the legal precedent that kept the monument from being replaced “is no longer good law.”
“The Ten Commandments have undeniable historical significance in the history and heritage of the Commonwealth of Kentucky and the nation,” the resolution states.
It passed the state House easily, and now heads to the Senate.
Stumbo said the Riners were a driving force for the public display of the Ten Commandments when they served in the House, saying he agrees with Coleman’s opinion that they can be legally displayed now.
“I think that the current thinking is... it's just something to look at,” said Stumbo, who was also formerly attorney general. “It's something you read or you don't read. That's the way I would look at it if I were on the bench, or if I were attorney general.”
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
