Bill Description: House Bill 238 would require all public educational institutions—including K-12 public schools, colleges, and universities—to prominently display the Ten Commandments (Decalogue).
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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?
It is unclear whether House Bill 238’s mandate to display the Decalogue violates the US Constitution, but it does violate the Idaho Constitution.
The First Amendment of the US Constitution declares that “Congress shall make no law respecting an establishment of religion.” Following the ratification of the 14th Amendment in 1868, the Supreme Court has selectively incorporated portions of the Bill of Rights to apply to the states. The Establishment Clause of the First Amendment was first incorporated in Everson v. Board of Education (1947). 33 years later, the Supreme Court struck down a Kentucky law mandating the display of the Decalogue in every public school classroom for violating the establishment clause in Stone v. Graham (1980).
Recently, the Supreme Court in Kennedy v. Bremerton School District (2022) determined that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings,’” calling into question the validity of all existing establishment clause precedents, including Stone v. Graham. In 2024, Louisiana passed a similar bill to House Bill 238. Subsequently, the law was blocked in November 2024 by a Federal District Judge who determined that it is “unconstitutional on its face.” That case is currently being heard on appeal by a three-judge panel of the U.S. Court of Appeals Fifth Circuit and will likely eventually reach the United States Supreme Court. Until then, it is unclear whether House Bill 238 violates the US Constitution in light of SCOTUS’ recent decision in Bremerton, though it is arguably consistent with our nation’s “historical practice” of displaying the Decalogue on public property. In fact, a sculpture of Moses holding the Decalogue sits atop the Supreme Court building’s east side pediment.
However, House Bill 238 would violate Article IX, Section 6 of the Idaho Constitution, which states that “no sectarian or religious tenets or doctrines shall ever be taught in the public schools” and that “no books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools.” The Decalogue’s first two commandments that “I am the LORD thy God” and “Thou shalt have no other gods before me” are undeniably religious tenets. In turn, the court could reasonably construe the mandatory display of these tenets as a form of religious instruction, thus violating the provisions of Article IX, Section 6.
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Does it promote the breakdown of the traditional family or the deconstruction of societal norms? Examples include promoting or incentivizing degeneracy, violating parental rights, and compromising the innocence of children. Conversely, does it protect or uphold the structure, tenets, and traditional values of Western society?
House Bill 238 would uphold traditional Western values by mandating all public “educational institutions” to display the Decalogue, which is arguably the most important legal and moral code in the history of Western civilization. The second table of the Decalogue in particular forms the core of what is referred to in the Western tradition as the natural law. In the words of the Catholic theologian and philosopher St. Thomas Aquinas: “all the precepts of the decalogue” are obvious conclusions from the “first general principles of the natural law, (which) are self-evident to human reason” (Summa Theologica, q. 100, article 1). To this end, the display of these posters would help promote traditional morality within Idaho’s system of public education.
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