BISMARCK — A proposal to allow displays of the Ten Commandments in North Dakota classrooms is likely unconstitutional and could prompt federal lawsuits, according to legal experts.
Pitching Senate Bill 2308 on Wednesday, March 24, Sen. Janne Myrdal, R-Edinburgh, listed a litany of social ills — sex trafficking, child sex abuse and crowded jails — that she said could be remedied with displays of the Ten Commandments in North Dakota schools. She encouraged her colleagues to move the measure forward despite arguments that displays of the religious texts could offend those outside the Christian or Jewish traditions.
"I would think murder is more offensive than, 'Thou shall not kill.' I would think theft is more offensive to all of us sitting here than, ‘Thou shall not steal,'" she said.
Still, a legislative committee amended Myrdal's bill following warnings of lawsuits by attorneys and education groups to require displays be accompanied by other historical documents, a provision to quell concerns about legal challenges. The committee gave the amended bill an 11-3 "do pass" recommendation.
But two law professors say the legal precedent on displays of the Ten Commandments is cut and dry, and passing the bill could spur federal lawsuits.
Professor Erwin Chemerinsky, the dean of the University of California, Berkeley School of Law pointed to the 2005 case of a McCreary County (Ky.) courthouse that was sued for its display of the Ten Commandments. After an initial legal challenge, the courthouse beefed up its display with other documents, but the Supreme Court still ruled against the county, arguing the display was clearly created to advance religion.
“In McCreary County, it was clear what they wanted to do was have the Ten Commandments there,”’ said Chemerinsky. “Putting (up) the other displays was just their way of getting the Ten Commandments there. That sounds a lot like the North Dakota (bill).”
Debates over displays of the Judeo-Christion text in public schools are not new to North Dakota. A federal judge struck down a North Dakota law requiring schools to post the Ten Commandments back in 1979.
“I remember that case very well because I lost it,” testified Murray Sagsveen, a former North Dakota Assistant Attorney General who defended the state in that lawsuit. Sagsveen added today's bill is likely to result in a repeat of the 1979 loss: "a school board will yield to the pressure, the school board will be sued and will certainly lose."
But backers of Myrdal's bill noted it merely authorizes, not requires, schools to post the Ten Commandments.
The North Dakota School Boards Association, which opposed the bill on Wednesday, warned the distinction would simply shift liability from the state to local school districts who take advantage of the law. However, another legal expert interviewed by The Forum said the state would still be on the hook for federal lawsuits.
Stephen Wermiel, a professor of Constitutional law at American University in Washington, D.C., noted the Supreme Court precedent established by the 1980 case Stone v. Graham, which still stands today, drew a clear line. The court ruled at the time that the Ten Commandments are "undeniably a sacred text" and that no legislative assurances "of a supposed secular purpose can blind us to that fact."
Regardless of whether the North Dakota bill requires or allows schools to post the Ten Commandments, Wermiel said, the state could face federal lawsuits for "fostering" religion in the classroom.
“If I were strategizing about it, I might want to sue the state board of education or the governor, if he signed the bill, over the law itself rather than picking a fight with my local school,” said Wermiel, since a local legal fight could come with local tension and drama.
Still, both Chemerinsky and Wermiel noted one big caveat: with today's conservative-controlled Supreme Court, the Ten Commandments precedent could go out the window if a North Dakota case ever reached the high court.
For her part, Myrdal readily acknowledged that lawsuits may follow the bill and called on her colleagues not to shy away in the face of possible legal challenges.
“We do that all the time. We back off of good, solid cultural principles because we’re scared to death of lawsuits,” she said. “But I would suggest to all of us that we’re lawmakers, and we have the ability and the opportunity and responsibility to challenge what is lawful or not.”
Myrdal's bill advanced from the Senate chamber earlier this session and still needs approval from the full House.
Readers can reach reporter Adam Willis, a Report for America corps member, at email@example.com.