The Ten Commandments Case: Constitutional Erastianism

Guest Blogger

Arvind Kurian Abraham

When the Fifth Circuit upheld Texas's law mandating the display of the Ten Commandments in public school classrooms, most legal scholars will reach for the obvious reference points: Establishment Clause, the separation of church and state, the ghost of school prayer. The dissenting judges have dutifully explained the legal flaws of the Court's opinion. Few, however, will think about Erastianism. They probably should.

Erastianism, the 16th-century doctrine associated with the Swiss theologian Thomas Erastus, holds that the state possesses supremacy over the church in ecclesiastical affairs, including the power to determine matters of religious doctrine and belief. It is a doctrine most Americans would instinctively recoil from. And yet it is precisely what the Fifth Circuit has quietly endorsed.

Consider the precedent. Following Henry VIII's break with Rome, the English Parliament enacted the Statute of the Six Articles in 1539, prescribing the core articles of Christian faith for the Church of England. Most Catholics would have found little to dispute in the articles themselves. What was extraordinary was not the content but the act: laymen in Parliament, and not an ecclesiastical council, determining what Christianity required its faithful to believe. Henry VIII had not read Erastus, who was still a child at the time, but the instinct was the same. When the state reaches into the sanctuary and decides what doctrine says, something constitutionally and historically alarming has occurred.

The Fifth Circuit's ruling carries that same instinct into the present. Texas has selected a particular version of the Ten Commandments, a text whose numbering and content are genuinely disputed across Jewish, Catholic, and Protestant traditions, and plastered it on the walls of public school classrooms by force of law. The state has not merely accommodated religion. It has presumed to define it. That is not a constitutional novelty. It is Erastianism.

But surely we know what the Ten Commandments consist of? Not quite. There are, in fact, three versions of the Ten Commandments, also known as the Decalogue, in the Pentateuch, and they do not say the same thing. The Ten Commandments make their first appearance in Exodus 20, only to resurface with notable differences in Deuteronomy 5. More striking still is what occurs in Exodus 34, as highlighted by biblical scholar Christine Hayes. After Moses shatters the original tablets, the biblical narrative declares that God restored the very same words onto new ones. Yet what follows is nothing of the sort. The text that appears in its place concerns itself not with universal moral principles but more with ritual aspects. Biblical scholars have termed this the Ritual Decalogue, and its existence alone complicates any confident claim about what the Ten Commandments definitively are.

Though the text is referred to as the Ten Commandments, Exodus 20 consists of thirteen to fourteen statements, which are numbered as ten, with the numbering varying across Jewish and Christian denominations. The content of the text also varies among these traditions. The King James Bible identifies the second commandment as prohibiting the worship of any “graven image,” a formulation from which Catholics have historically dissented. Historically, this difference was exploited to demean Catholic students in 19th-century schools across the United States.

The petitioners argued that Texas had selected a particular Protestant rendering, constituting denominational discrimination forbidden by the Establishment Clause. The Fifth Circuit dismissed this, reasoning that adjudicating the claim would require a theological judgment beyond its competence. But this response concedes the very point it seeks to avoid: the Court acknowledged the text is religiously contested, and then used that concession as a reason to do nothing. The constitutional question was never which tradition renders the text correctly. It was whether the state has any authority to render it at all. It does not. By selecting one version for mandatory classroom display, Texas has exercised precisely the theological judgment the Establishment Clause forbids. The Court's retreat into institutional modesty was not compelled by the difficulty of the question. It was a means of evading it.

The Court also invoked Van Orden v. Perry, reasoning that the displayed text matches a Ten Commandments monument previously upheld on Texas Capitol grounds. But that monument was privately donated, stood among seventeen monuments in a public park, and had gone unchallenged for four decades. It was not a state-mandated display imposed on a captive audience. The controlling precedent is Mccreary County v ACLU, where Ten Commandments displays in Kentucky courthouses and schools, unavoidably visible to ordinary visitors, were rightly held unconstitutional because their purpose was to favor one faith over others. That is plainly what Texas set out to achieve.

The implications extend well beyond Texas. Unless the Supreme Court corrects course, this ruling effectively licenses legislatures across the country to mandate religious texts in public school classrooms. In 2015, parents in Virginia were outraged when students were assigned to copy an Arabic calligraphy of the Islamic declaration of faith. That was a classroom exercise. Under the Fifth Circuit's reasoning, a state legislature could mandate that same text on every public school wall. That is the door this ruling has opened.

The Fifth Circuit's opinion effectively sanctions the state's authority to determine the content of religious texts for mandatory display in public classrooms. The Establishment Clause, it seems, offers no resistance. Constitutional Erastianism has arrived.

Arvind Kurian Abraham is an SJD Candidate at Harvard Law School. You can reach him by e-mail at aabraham@sjd.law.harvard.edu.