Colonel John Eidsmoe: Ten Commandments and Religious Liberty

Colonel John Eidsmoe, Professor of Constitutional Law for Oak Brook College of Law and Senior Counsel & Resident Scholar for the Foundation for Moral Law, joined ALCAP President Greg Davis recently on Priority Talk Radio to discuss the 10 Commandments and religious liberty. COL Eidsmoe began by giving an overview of what the 10 Commandments are, namely a summary of Jewish law. Eventually, they became the foundation of Western law that undergirds the United States and they provide a biblical framework for legislation.

“The 10 Commandments have been foundational for law all throughout history, and they remain foundational for law today,” Eidsmoe said.

Responding to Greg’s question about whether we can “legislate morality,” Eidsmoe responded, “You can’t legislate anything except morality. All law ultimately has a moral base.”

According to COL Eidsmoe, the legislative influence of the 10 Commandments began to wane in America in the 1940s and 50s with the radical interpretation of the phrase “separation of church and state.” The political left took the phrase to mean the removal of religious influence from the government sphere. This errant view was further enforced by federal courts through cases such as Lemon v. Kurtzman (1971), from which the three-pronged “Lemon test” originated that, in implementation over the next 5 decades, actively harmed religious expression in America. One of the strongest examples of this was the Stone v. Graham decision in 1980, where the Supreme Court decided in a 5-4 vote to use the Lemon test to strike down a Kentucky law as unconstitutional that would have required public schools to post the 10 Commandments in their classrooms.

They then moved the conversation to a 2001 case in Alabama when then-Chief Justice of the Alabama Supreme Court Roy Moore placed a 10 Commandments monument in the state’s judicial building. A lawsuit was filed, and eventually Moore was defeated in court through the use of the Lemon test and the monument was removed.

The Lemon test, however, is no longer in use due to the recent Kennedy v. Bremerton School District 6-3 ruling from the Supreme Court (2022). Coach Joe Kennedy, a head coach of a high school football team, would pray after games on the field. His example led many others, even opposing teams, to come pray with him after games. Eventually, after several years of praying with no issues, this habit came under fire by his school district and lawyers. He was told to stop, and so he stopped praying with anyone else. He would simply pray by himself on the football field. However, even this was not good enough and he was told that he would be suspended until he complied with the school district’s policy of not praying in public. He took a bold stand, and the resulting legal case made its way to the Supreme Court. He won and the Lemon test was finally overruled.

Greg Davis and Colonel John Eidsmoe then discussed a current case (Roake v. Brumley) that is making its way potentially to the Supreme Court from Louisiana. This state statute, like the Kentucky one, would require public schools to post the 10 Commandments in their classrooms. With the Lemon test gone, however, the end result may be more promising.

They concluded their conversation by returning to the importance of the 10 Commandments in society. To listen to their entire conversation, click here.