Ten Commandments Cases: Learning from Reformation Coercion

The Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and marginalize religious minorities. By recovering this history, this Essay demonstrates that classroom religious displays violate not just modern sensibilities but an historical understanding of religious freedom that refugees carried to American shores.

Introduction

In May 1562, Protestant attempts to seize control of Toulouse, France, erupted into religious violence that left over 200 people dead and triggered persecution by local authorities.¹See M. Greengrass, The Anatomy of a Religious Riot in Toulouse in May 1562, 34 J. Ecclesiastical Hist. 367, 367 (1983). In the aftermath, the government mandated commemorative Catholic processions and required public displays of Catholic conformity.²See Philip Benedict, Divided Memories? Historical Calendars, Commemorative Processions and the Recollection of the Wars of Religion During the Ancien Régime, 22 French Hist. 381, 395–96 (2008); Samuel Smiles, The Huguenots in France After the Revocation of the Edict of Nantes: With a Visit to the Country of the Vaudois 13 (1874) (explaining that Huguenots “were compelled to hang out flags from their houses on the days of Catholic processions; but they were forbidden, under a heavy penalty, to look out of their windows when the Corpus Domini was borne along the streets”). This transformed a religious ritual into a legally enforced test of faith. As historian Natalie Zemon Davis explains, these events became flashpoints when Protestants who refused to kneel or decorate their homes for the passing procession faced mob violence, fines, and imprisonment.³See Natalie Zemon Davis, The Rites of Violence: Religious Riot in Sixteenth-Century France, Past & Present, May 1973, at 51, 73; Benjamin J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe 80 (2007) (explaining that “refusal of Calvinists to doff their hats and kneel when a eucharistic procession passed them . . . was a specially sore point in France”); Elizabeth C. Tingle, Authority and Society in Nantes During the French Wars of Religion, 1558–98, at 76 (2006) (“During Corpus Christi 1564 five notables of the Reformed community were fined and imprisoned for refusing to decorate their houses with tapestries for the annual procession of the Host.”); Henry White, The Massacre of St. Bartholomew: Preceded by a History of the Religious Wars in the Reign of Charles IX, at 179–80 (1871) (describing an incident in 1562 where Huguenots were fined and imprisoned for their refusal to decorate their homes for the Eucharistic procession); id. at 212 (“Because the fronts of certain houses had not been decorated with hangings during the procession of Corpus Christi, some of the inhabitants were drowned, others imprisoned, and in every case the houses were thoroughly gutted.”); Erika Supria Honisch, Hearing the Body of Christ in Early Modern Prague, 38 Early Music Hist. 51, 54 (2019) (describing “public processions that disrupted the locations of weekly markets and forced bystanders, regardless of their confessional persuasion, to doff their hats and genuflect, and it was communicated forcefully in music”). This manufactured dilemma forced religious dissenters to publicly declare their private beliefs under threat of violence or prosecution,⁴Davis, supra note 3, at 73–74 (“Corpus Christi Day was the chance for a procession to turn into an assault on and slaughter of those who had so offended the Catholic faith, its participants shouting, as in Lyon in 1561, ‘For the flesh of God, we must kill all the Huguenots’.”). a form of religious coercion that drove religious refugees to America.⁵See Marilyn C. Baseler, “Asylum for Mankind”: America, 1607–1800, at 3 (1998). Today, when states mandate Ten Commandments displays in public school classrooms,⁶Public school Ten Commandments mandates have recently been enacted in Arkansas, S.B. 433, 95th Gen. Assemb., Reg. Sess. (Ark. 2025); Louisiana, H.B. 71, 2024 Leg., Reg. Sess. (La. 2024); and Texas, S.B. 10, 89th Leg., Reg. Sess. (Tex. 2025). they replay that coercive dynamic: Students must either accept a state-endorsed religious message or publicly identify themselves as dissenters.

The current Supreme Court would likely miss this parallel. In Kennedy v. Bremerton School District, the Court announced that Establishment Clause challenges must be decided based on “historical practices and understandings.”⁷Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022). Yet, the Court’s historical method focuses on Anglo-American practices from the colonies and early states, creating a blind spot for European religious persecution that shaped the Founders’ understanding of religious establishment.⁸Professor Steven Green has critiqued the Supreme Court’s historical method with great insight. See generally Steven K. Green, The Supreme Court’s Ahistorical Religion Clause Historicism, 73 Baylor L. Rev. 505 (2021). In that article, he reviews the historical analysis in the Supreme Court’s Establishment Clause cases from 1947 to 2020, which focuses on English and American sources. See id. at 513–38. This myopia ignores coercive practices that, while absent from the early American republic, traveled to America in refugee narratives and Protestant literature.⁹See Jon Butler, The Huguenots in America: A Refugee People in New World Society 71–73 (1983) (discussing the awareness in seventeenth-century New England of religious persecution experienced by French Calvinists); David D. Hall, Toward a History of Popular Religion in Early New England, 41 Wm. & Mary Q. 49, 49 (1984) (noting the influence among Puritans in New England of Foxe’s Book of Martyrs, which recounted experiences of religious persecution in Europe during the Reformation).

In defending their Ten Commandments mandates, states leverage this myopic focus. In the 1980 decision Stone v. Graham, the Supreme Court held that displaying the Ten Commandments in public schools violates the Establishment Clause.¹⁰Stone v. Graham, 449 U.S. 39, 42–43 (1980). Relying on Kennedy, states argue that Stone is inconsistent with constitutional history and tradition and should be overruled.¹¹See Appellants’ Opening Brief at 49–53, Roake v. Brumley, 141 F.4th 614 (5th Cir. 2025) (No. 24-30706). In doing so, the states offer an unduly narrow version of that history.

This Essay argues that a principled historical approach to the Establishment Clause must examine the European religious conflicts that the Founders’ ancestors fled. The Catholic processions of the Reformation era provide a particularly relevant analogy: Like modern classroom religious displays, they forced captive audiences to make visible choices about religious belief, marking themselves for persecution. By examining this historical parallel, we can better understand why state-mandated Ten Commandments displays in public schools violate a historical understanding of the Establishment Clause—even if no state at that time had attempted such displays.

I. The Court’s Historical Tunnel Vision

To properly analyze state mandates for Ten Commandments displays, we must first understand how the Supreme Court’s new historical test operates and what it misses. While the command to interpret the Establishment Clause through “historical practices and understandings” sounds comprehensive, in practice, the Court considers only practices that existed in early America while ignoring European religious persecution.¹²See supra note 8. The Court has also been inconsistent in its resort to history, as can be seen in its first twenty years of engagement with the Establishment Clause. In Everson v. Board of Education, 330 U.S. 1 (1947), the Court briefly noted the European influence on the drafters of the Establishment Clause, id. at 8–9, but then discussed only English and early American History in its analysis. Id. at 9–16. In its next two cases, the Court did not discuss history but instead applied the “wall of separation” metaphor mentioned in Everson. See Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 210–12 (1948) (holding that the state violated the Establishment Clause by allowing private religious instruction in public school buildings); Zorach v. Clauson, 343 U.S. 306, 312–15 (1952) (upholding a state law that permitted public schools to release students for private religious instruction). The Court returned to history in holding that prayer in public school violated the Establishment Clause, discussing the English controversies over the Anglican Book of Common Prayer and later experiences in the colonies. See Engel v. Vitale, 370 U.S. 421, 425–33 (1962). The next year, the Court engaged in a briefer discussion of early American history when it struck down a state practice of Bible readings in public schools. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 213–14, 223 (1963). While the Court’s consideration of history ebbed and flowed, one thing was consistent: the only history consulted was from England and early America. While this approach captures what the Founders chose to permit, it misses what they deliberately rejected: the coercive religious practices that drove generations of refugees to North America. We cannot understand why certain religious establishments did not appear in early America without reviewing the European precedents that made them unthinkable to the founding generation.

The Supreme Court has not always interpreted the Religion Clauses exclusively through the lens of history. Until recently, it also analyzed many Establishment Clause issues under a three-part test established in Lemon v. Kurtzman.¹³Lemon v. Kurtzman, 403 U.S. 602 (1971). To survive the Lemon test, the challenged government action must have a secular purpose, neither advance nor inhibit religion, and avoid excessive entanglement with religion. Id. at 612–13. While Lemon claimed to adopt a single, comprehensive test for Establishment Clause cases, the Court soon abandoned that claim in the 1983 case Marsh v. Chambers, 463 U.S. 783 (1983), when it ignored the Lemon test and applied an historical analysis to uphold the practice of opening a state legislative session with a religious prayer. See id. at 786, 795 (resting its decision on “[t]he unbroken practice for two centuries in the National Congress, for more than a century in Nebraska and in many other states”). For decades, the Lemon test was criticized as unprincipled and incoherent,¹⁴Scott W. Gaylord, When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum, 79 U. Cin. L. Rev. 1017, 1033 n.71 (2011). leading to modifications to the test and arguably inconsistent outcomes.¹⁵See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 533–36 (2022). Finally, in Kennedy, the Court officially abandoned the Lemon test in favor of a single historical approach.¹⁶Id. at 535. The Court announced that the Establishment Clause must be applied in light of “historical practices and understandings,” and interpreted in “accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.”¹⁷Id. at 535–36 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576, 577 (2014)).

But this renewed commitment to a historical test, as applied by the Court, suffers its own flaw—it examines only a narrow portion of relevant history. Repeatedly, the Court has reviewed only practices in the American colonies and early states, with occasional reference to English law.¹⁸See supra note 12. For example, in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171 (2012), in interpreting the Religion Clauses of the First Amendment to bar employment lawsuits by a minister against their church, the Court discussed exclusively English experiences before turning to history in the American colonies and early states. See id. at 181–85; see also Town of Greece v. Galloway, 572 U.S. 565, 578–80 (2014) (discussing only the American history of legislative prayer); Marsh, 463 U.S. at 786–92 (discussing the history of legislative prayer in the American federal and state governments). Practices and experiences in Reformation Europe are mentioned only obliquely.¹⁹For example, in Everson v. Board of Education, 330 U.S. 1 (1947), the Court made this general indirect reference to experiences in Reformation Europe:

The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.

Id. at 8–9. When applying the Establishment Clause to the law in that case (state reimbursement of transportation costs to parents of schoolchildren in secular and religious private schools), the Court limited its discussion to specific American sources and practices. See id. at 7–16. In doing so, the Court treats the Founders’ religious worldview as if it emerged fully formed from Anglo-American experiences; a form of historical tunnel vision that overlooks the broader context that influenced the Founders’ thinking. This approach is mistaken: The First Amendment’s Framers were descendants of European settlers whose understanding of religious establishment was shaped by religious persecution throughout Europe.²⁰See Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1048 (1996) (“The Reformation is important to American constitutional law because it was salient recent history to those who wrote our Religion Clauses, and because for most Americans who learned anything about religion in their history courses, the problem of religious liberty is typified by the persecutions that drove Pilgrims, Puritans, Quakers, and Catholics to found colonies in Plymouth, Massachusetts Bay, Pennsylvania, and Maryland.”).

This narrow focus has distorted constitutional interpretation. For example, Justice Gorsuch’s opinion for the Court in Kennedy dismissed concerns about a public high school football coach’s highly visible prayer as mere “offense” that “does not equate to coercion,”²¹Kennedy, 597 U.S. at 538–39 (quoting Town of Greece, 572 U.S. at 589). and characterized the argument that the prayer was coercive as itself hostile to religion.²²Id. at 540–41. By contrasting offense with coercion, Gorsuch determined what counts as harm under the Establishment Clause. Had the coach coerced students to pray, the students would have suffered harm at the hands of a government actor. If students were merely offended by the coach’s prayer, however, their offense would be attributable to the students’ particular sensitivities rather than government conduct.²³Justice Gorsuch has made a similar argument in the context of Article III standing. In an Establishment Clause case that involved a thirty-two-foot tall Latin Cross displayed on public property, he argued that a person who was merely offended by a religious display on government property had not suffered a concrete injury that would support Article III standing to sue in federal court. See Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 79–85 (2019) (Gorsuch, J., concurring); City of Ocala v. Rojas, 143 S. Ct. 764, 765 (2023) (opinion of Justice Gorsuch respecting denial of certiorari). He noted that this form of standing had been used by litigants challenging Ten Commandments displays. See Am. Legion, 588 U.S. at 87–88. Justice Thomas has made a similar argument, denigrating someone who objects to a religious display as having mere “hurt feelings.” See City of Ocala, 143 S. Ct. at 767 (Thomas, J., dissenting from denial of certiorari). Without explanation, Gorsuch categorized the students’ experience of the coach’s prayer as offense rather than coercion. As discussed below, this arbitrary characterization denies the real impact of government action and thus the existence of constitutional harm.²⁴See infra Part III.

Justice Gorsuch’s framing of the coach’s prayer ignores centuries of European precedent showing how public religious displays and practices can coerce. The Founders’ generation understood establishment through stories of Protestant martyrs and family memories of religious persecution.²⁵The founding generation included direct descendants of Huguenots who fled religious persecution in France and shared their family’s refugee experiences. See Joyce D. Goodfriend, The Last of the Huguenots: John Pintard and the Memory of the Diaspora in the Early American Republic, 78 J. Presbyterian Hist. 181, 182 (2000) (describing how even before concerted efforts to retrieve the history of Huguenot refugees began, “an image of the refugees was taking shape, as family lore was transmitted across the generations and, in a few cases, put into print”); Helen Boudinot Stryker, Elias Boudinot, 3 Pa. Mag. Hist. & Biography 191, 191 (1879) (noting the Huguenot ancestors of Alexander Hamilton and Elias Boudinot). For example, John Jay, author of five Federalist Papers, Harry A. Blackmun, John Jay and the Federalist Papers, 8 Pace L. Rev. 237, 238 (1988), was the son of a Huguenot refugee who was deeply affected by his family’s religious persecution history. See Patricia U. Bonomi, John Jay, Religion, and the State, 81 N.Y. Hist. 9, 11–12 (2000) (describing “Jay’s passionate recollection of the Huguenots’ persecution at the hands of French Catholics”). And former Massachusetts Governor James Bowdoin, who was president of the 1780 Constitutional Convention, was the grandson of a Huguenot refugee. See Francis G. Walett, James Bowdoin, Patriot Propagandist, 23 New Eng. Q. 320, 320 (1950) (noting that Bowdoin was “the grandson of Pierre Baudouin, a Huguenot immigrant of the late seventeenth century”). As James Madison warned in his Memorial and Remonstrance, the same government that can establish Christianity over other religions can establish one Christian sect over others—a fear derived from European experience, not American practice.²⁶See James Madison, Memorial and Remonstrance Against Religious Assessments, in 8 The Papers of James Madison 295, 300 (Robert A. Rutland, William M. E. Rachal, Barbara D. Ripel & Fredrika J. Teute eds., 1973) (“Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”).

These geographical blinders become especially problematic when evaluating government religious displays. No American state in 1791 had mandated classroom religious texts because public education itself was nascent.²⁷See Expert Report of Steven K. Green, J.D., Ph.D. ¶¶ 34–36, Roake v. Brumley, 756 F. Supp. 3d 93 (M.D. La. 2024) (No. 3:24-cv-00517-JWD-SDJ). But the absence of a specific practice does not mean the Founders lacked relevant principles or historical reference points. Indeed, Reformation-era European precedents demonstrate that such public religious practices can create a coercive dilemma, not merely an offense. To understand these principles, we next examine a form of religious coercion the Founders knew from European history.

II. Catholic Processions as a Model of Coercion

Catholic Eucharistic processions in Reformation Europe illustrate the coercive power of public religious displays. In sixteenth- and seventeenth-century Europe, after endorsement by the Council of Trent,²⁸The Council of Trent was a gathering of Roman Catholic bishops, called by Pope Paul III, that met from 1545 to 1563. See John W. O’Malley, Trent: What Happened at the Council 1–2, 13 (2013). The Council convened amid the ongoing controversies raised by Martin Luther’s writings, though many of the issues discussed predated Luther’s work. See Diarmaid MacCulloch, The Reformation: A History 97–105 (2003) (discussing Desiderius Erasmus’s early sixteenth-century critiques of the Catholic Church); John W. O’Malley, Trent and All That: Renaming Catholicism in the Early Modern Era 16–18 (2000). The Council’s decisions settled and reaffirmed questions of theology and church governance and are seen as ending any realistic opportunity for reconciliation between the Roman Catholic Church and emerging Protestant dissenters. MacCulloch, supra, at 235 (explaining the Council’s decrees defined Catholic doctrine in a manner that made it “virtually impossible . . . [for] many reformers [to] stay in the Church”); id. at 236 (explaining that Emperor Charles V was “displeased with the Council’s proceedings, which closed any . . . possibility of a deal with the Lutherans”). Catholic authorities conducted processions in which priests carried in an ornate container the consecrated communion bread, known as the Host, through city streets—accompanied by bells, incense, and crowds of believers.²⁹See Council of Trent, Decree Concerning the Most Holy Sacrament of the Eucharist, sess. 13 (Oct. 11, 1551) (providing that the Eucharist “be borne reverently and with honour in processions through the streets, and public places”); O’Malley, Trent: What Happened at the Council, supra note 28, at 1, 130, 191. The marchers paraded through mixed-religion neighborhoods, often where Roman Catholicism was the official religion and public worship by Protestants was suppressed.³⁰Legal prohibition of public worship for another religion could be the best-case scenario, as some governments enacted penal laws that criminalized failure to attend worship for the official religion. See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2144–46 (2003). The extent of de facto toleration also varied greatly among nations and regions depending on the interests and political circumstances of the local authorities. See Kaplan, supra note 3, at 79–82; see also Evan Haefeli, Accidental Pluralism: America and the Religious Politics of English Expansion, 1497–1662, at 116 (2021) (discussing how the loose conformity under James I was transplanted to England’s North American colonies). As the procession passed, assembled Catholic onlookers engaged in visible reverence to the Host, including kneeling and removing hats, and expected the same of others.³¹See Kaplan, supra note 3, at 80. The Catholic Church expected that heretics would, at the sight of the holy procession, “either pine away weakened and broken; or, touched with shame and confounded, at length repent.”³²Council of Trent, supra note 29, at 79.

At a distance of over 500 years, these events may seem to fit Justice Gorsuch’s model of an innocent religious ceremony that others should tolerate. In context, however, the processions were carefully orchestrated tests of religious conformity that weaponized the theological divide between Catholics and Protestants.³³See Davis, supra note 3, at 88 (“[T]he crowds of Catholics and Protestants, including those bent on deadly tasks, were not an inchoate mass, but showed many signs of organization. Even with riots that had little or no planning behind them, the event was given some structure by the situation of worship or the procession that was the occasion for many disturbances.”). The Catholic doctrine of transubstantiation holds that the Host is the actual presence of Jesus Christ, requiring a visible show of reverence; Protestant denominations rejected this doctrine.³⁴See MacCulloch, supra note 28, at 129–30, 248–53, 352 (discussing sixteenth-century debates over the nature of the Eucharist). This theological difference was a basis for inter-religious violence throughout the Reformation.³⁵Id. at 248–53.

Catholic Eucharistic processions through Protestant neighborhoods became a direct provocation in which the simple act of kneeling—or not—was a public declaration of religious identity. Protestant observers faced a dilemma: They could kneel and betray their conscience, risking ostracism within their community, or remain standing and identify themselves as heretics, subject to legal punishment or mob violence.³⁶See Davis, supra note 3, at 66 (“Catholic priests seem to have been in quite a few disturbances, as in Rouen in 1560, when priests and parishioners in a Corpus Christi parade broke into the houses of Protestants who had refused to do the procession honour.”); Kaplan, supra note 3, at 79–82 (explaining that either action or inaction by dissenters faced with Catholic processions could result in violence). The consequences of this choice extended beyond individual conscience to community standing and personal safety.

Two things made the processions an especially effective form of persecution. First, they compelled visible, physical responses—such as kneeling or not kneeling—that publicly revealed private beliefs. Unlike private worship or belief, which authorities could not easily detect, public processions created evidence of heresy.³⁷See Kaplan, supra note 3, at 97. Second, they occurred in public spaces with crowds present, facilitating both immediate mob violence and later systematic persecution.³⁸See id. at 97–98. Processions and other public religious rituals “forced witnesses to respond in an equally public manner, making evasion or neutrality well nigh impossible,” which “left the crowd to choose between attacking the Calvinist and condoning his blatant disrespect toward their God.”³⁹Id. at 97. These features of the Eucharistic processions served a specific purpose: to publicly assert the social, legal, and political dominance of the Roman Catholic religion in the area.⁴⁰See Davis, supra note 3, at 55 (noting that religious violence had “a goal akin to preaching: the defence of true doctrine and the refutation of false doctrine through dramatic challenges and tests”); Robert A. Schneider, Mortification on Parade: Penitential Processions in Sixteenth- and Seventeenth-Century France, 22 Renaissance and Reformation 123, 125 (1986) (“The procession was a great instrument for the Counter-Reformation, displaying a Church militant, unified, numerous and purified.”). The clear message was that non-Catholics should conform or leave.⁴¹See Davis, supra note 3, at 81–82 (noting that violence was “intended to purify the religious community and humiliate the enemy and thus make him less harmful”). One scholar notes that Catholics viewed heresy as a contagious disease, with removal from the community needed to prevent infection. Kaplan, supra note 3, at 77. At the extreme, Catholic violence would try to purge the community of heretical influences through the murder of heretics. Davis, supra note 3, at 77. Professor Davis explains: “In bloodshed, the Catholics are the champions . . . . I think this is due . . . to their stronger sense of the persons of heretics as sources of danger and defilement. Thus, injury and murder were a preferred mode of purifying the body social.” Id. (emphasis omitted). Thus, processions were a crucial way to communicate and enforce religious orthodoxy.

The religious significance and coercive nature of these processions were so well recognized that contemporary government actions acknowledged them. For example, the 1598 Edict of Nantes, which secured a measure of religious freedom for Huguenots (French Calvinists),⁴²See Kaplan, supra note 3, at 220. Issued by King Henry IV of France, The Edict of Nantes “confirmed the Huguenots’ right . . . to worship wherever they had a church as of 1577 or 1596–1597.” Id. After the Thirty Years War, the Peace of Westphalia extended this right to Calvinists, Lutherans, and Catholics throughout the Holy Roman Empire as of 1624. Id. gave Catholics the right to decorate any house—Protestant or Catholic—along a religious procession route.⁴³Id. at 85. While Catholics were to do so at their own expense, they “tried to force Huguenots to hang tapestries and light candles themselves.”⁴⁴Id. These experiences reflect an important point: Public religious displays inherently coerce when imposed on captive audiences of different faiths.

III. From the Streets of Europe to the Classrooms of America

The current wave of state laws mandating displays of the Ten Commandments in public schools echoes the coercive dynamic of the Eucharistic processions. Like Protestant residents who could not avoid processions through their neighborhoods, students cannot escape daily confrontation with state-mandated religious texts.⁴⁵See Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (discussing state-mandated instruction in creationism in public primary and secondary schools, the Court noted that “[s]tudents in such institutions are impressionable, and their attendance is involuntary”). This captivity transforms what might otherwise be mere exposure into a confrontation with conscience. To see this parallel, consider how the Ten Commandments mandates match each feature of the processions.

First, as with the processions, choosing a text of the Ten Commandments endorses one side of a sectarian divide.⁴⁶See Paul Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 Fordham L. Rev. 1477, 1481–1500 (2005) (describing in detail the various theological claims that any choice of a Ten Commandments text implies). For example, the Louisiana law mandates posting the version of the Commandments derived from the King James Bible,⁴⁷See Expert Report of Steven K. Green, J.D., Ph.D., supra note 27, ¶¶ 51–53 (explaining that the stricture and the content of the text of the Ten Commandments mandated by Louisiana law derive from the King James Bible). The King James Bible is the translation commissioned by King James I of England in 1604 in response to Puritan theological grievances raised. See MacCulloch, supra note 28, at 514. The translation became the “Authorized Version” of the Bible for the Church of England, id., and was the most widely published version in mid-nineteenth-century America. See Mark A. Noll, America’s Book: The Rise and Decline of a Bible Civilization, 1794–1911, at 312–16 (2022). The close identification of the King James Bible with Protestantism was a factor in the 1844 Philadelphia bible riots that erupted when Catholics objected to the mandatory readings from that version in the local public schools. Id. at 316–22; Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict 78–79 (1975). the translation used by certain Protestant denominations, which includes “Thou shalt not make to thyself any graven images.”⁴⁸Roake v. Brumley, 141 F.4th 614, 626, 630 (5th Cir. 2025). This commandment, which is absent from the Catholic version, is rooted in Protestant rejection of Catholic “idolatry” of saints and venerated objects.⁴⁹See MacCulloch, supra note 28, at 145–46. Historically, Protestants relied on this scriptural difference to justify the destruction of Catholic churches’ statues and artwork during the Reformation.⁵⁰See Davis, supra note 3, at 77 (noting that Protestant “crowds . . . come out as the champions in the destruction of religious property” because “the Protestants sensed much more danger and defilement in the wrongful use of material objects”) (emphasis omitted); Greengrass, supra note 1, at 384 (discussing Protestant destruction and defiling of Catholic religious images); MacCulloch, supra note 28, at 558–59 (explaining the theological basis for removal or destruction of statues and images). Knowledgeable Catholic students, parents, teachers, and community members would understand the religious significance of the state’s choice of sacred text.

Second, any claim that these inherently religious displays serve a secular purpose is mere pretense. For example, Louisiana’s claim that Ten Commandments displays serve a “secular” historical purpose is belied by evidence that the mandate was intended to ensure “our children learn what God says is right,” and that opponents of the requirement were “waging an ‘attack on Christianity.’ ”⁵¹Roake, 141 F.4th at 642, 644. This legislative history echoes the rhetoric surrounding the Catholic processions, which also claimed civic purposes while meant to establish religious dominance.⁵²See Kaplan, supra note 3, at 99–103 (explaining the view among European rulers that punishment and exclusion of heretics was necessary to preserve social order and public peace).

Third, a Catholic student viewing the Protestant version of the Ten Commandments faces the same dilemma as their Reformation-era forebears: acquiesce to theological error or speak up and mark themselves as different. Like the refusal to kneel before the procession, the classroom display may provoke a visible reaction, whether a student takes action in the classroom or voices their objection to a teacher or school authorities. And like public parades, public schools are a place where students and adults gather—any incident that occurs at school can be communicated to school officials and families throughout the community, facilitating retaliation. While modern dissenters are more likely to face social ostracism and harassment than physical violence, the dynamic of creating in-groups and out-groups remains the same.⁵³Professor Douglas Laycock provides a stark example of this threat of intimidation and ostracism when he writes about why he declined an invitation to serve as an amicus in a Ten Commandments case arising in Austin, Texas: “I was not afraid of retaliation against me, but I was afraid of retaliation against the University I had served for 23 years at that point.” Douglas Laycock, Government-Sponsored Religious Displays: Transparent Rationalizations and Expedient Post-Modernism, 61 Case W. Rsrv. L. Rev. 1211, 1225 (2011). As lower court cases have shown, students and families who object to religious practices in public schools have faced threats, harassment, and abuse.⁵⁴For example, in a Supreme Court case that challenged religious prayer before public high school football games, the families objecting to the practice were allowed to proceed anonymously due to threats of harassment by the community’s religious majority. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 n.1 (2000) (describing efforts by “District or school administration, officials, counsellors, teachers, employees or servants of the School District, parents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright ‘snooping’ ”); see also Douglas Laycock, Voting with Your Feet is No Substitute for Constitutional Rights, 32 Harv. J. L. & Pub. Pol’y 29, 39 (2009) (“The trial judge permitted the Santa Fe plaintiffs to litigate anonymously and felt obliged to threaten ‘contempt sanctions’ and ‘criminal liability’ to deter continuing investigations to learn their identity and to deter ‘intimidation or harassment.’ ”). And in a related case, a Jewish student who objected to repeated Christian displays was threatened, abused, and harassed by classmates. See What’s with Santa Fe? Small Town Is Sulled by Hate, Hou. Chron. (May 1, 2005), https://www.chron.com/opinion/editorials/article/What-s-with-Santa-Fe-Small-town-is-sulled-by-hate-1918105.php [https://perma.cc/3P38-HBGT] (noting that the school district’s “lone Jewish student . . . alleged that classmates had bullied him and threatened to hang him. School authorities called his complaints overblown; Nevelow’s parents contended the mistreatment flowed naturally from the current of bigotry coursing through the debate and litigation over public prayer”). Thus, a similar dynamic converts private conscience into public performance, resulting in religious persecution.

To suggest that a student merely avert their eyes misunderstands the nature of religious conscience and makes theological judgments on students’ behalf. For some sincere believers, religious texts are not mere visual clutter, like classroom announcements or decorations, but rather truth claims that demand a response.⁵⁵See Laycock, supra note 54, at 38 (“The sense of violation of individual conscience in these cases can be very strong for some believers of minority faiths and for some nonbelievers.”). For the Catholic student discussed above, the Protestant version misrepresents God’s commandments. For a Native American student, the monotheistic Commandment, “I AM the LORD thy God. Thou shalt have no other gods before me,”⁵⁶Roake, 141 F.4th at 626 (quoting the Ten Commandments text mandated by Louisianna law). may evoke the history of Christian missionaries who denounced their ancestors as worshipping false gods and who subjected their communities to forced conversion.⁵⁷See Catherine L. Albanese, America: Religion and Religions 174–77 (3d ed. 1999) (discussing efforts by Catholic and Protestant colonists in North America to convert Native Americans to Christianity); Alfred A. Cave, New England Puritan Misperceptions of Native American Shamanism, 67 Int’l Soc. Sci. Rev. 15, 16–18 (1992) (discussing Puritan misconceptions about Native American religious beliefs and practices); William S. Simmons, Cultural Bias in the New England Puritans’ Perception of Indians, 38 Wm. & Mary Q. 56, 61 (1981). For example, the charter of the Massachusetts Bay Colony included the charge to “wynn and incite the Natives of Country, to the Knowledg and Obedience of the onlie true God and Saulor of Mankinde, and the Christian Fayth.” The Charter of Massachusetts Bay : 1629, The Avalon Project, https://avalon.law.yale.edu/17th_century/mass03.asp [https://perma.cc/YJ47-T77M]. In a concurring opinion in Haaland v. Brackeen, 599 U.S. 255 (2023), Justice Neil Gorsuch discussed the United States government’s oversight of and participation in boarding schools intended to destroy Native American culture, many of which were operated by Christian denominations. Id. at 298–99 (Gorsuch, J., concurring). See Nancy Marie Spears, New Archive Sheds Light on Indian Boarding Schools Run by the Catholic Church, The Imprint (June 8, 2023), https://imprintnews.org/top-stories/new-archive-sheds-light-on-indian-boarding-schools-run-by-the-catholic-church/242011 [https://perma.cc/ZP7N-7FCP]. Such students sincerely view the display as communicating religious error, not merely disagreeable information or background noise. Thus, suggesting students merely “look away” asks them to affirm a false teaching that the government has presented as religious truth.

That some students may comfortably choose to avert their gaze does not change the constitutional analysis. The Establishment Clause protects the most scrupulous believer, not merely the religious moderate.⁵⁸See Lee v. Weisman, 505 U.S. 577, 591–92 (1992) (“What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”). As the Court stated in Thomas v. Review Board, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”⁵⁹Thomas v. Rev. Bd. of Ind. Empl. Sec. Div., 450 U.S. 707, 714 (1981). The sincerity of religious belief, not its popularity or perceived rationality, triggers constitutional protection.⁶⁰See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014) (“Arrogating the authority to provide a binding national answer to [a] religious and philosophical question, [the government] and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.”).

This explains why Justice Gorsuch errs in characterizing a person’s religious objection as mere “offense” rather than sincere religious harm.⁶¹See supra Part I. Offense suggests a subjective emotional reaction that may be an idiosyncratic matter of personal sensitivity.⁶²Illustrating the subjective connotation of the word “offense,” Merriam-Webster includes the definitions “the act of displeasing or affronting” and “the state of being insulted or morally outraged,” along with the usage example “takes offense at the slightest criticism.” Offense, Merriam-Webster, https://www.merriam-webster.com/dictionary/offense [https://perma.cc/PP9A-CZ5Y]. Religious coercion involves the government placing its authority behind particular religious propositions, which pressures citizens to conform, remain silent, or mark themselves as outsiders. When a student sincerely objects to a Ten Commandments display, they are not simply objecting to an aesthetically displeasing poster or a problematic political message. Instead, they confront a government message that endorses particular religious teachings as worthy of permanent display. Every day they enter the schoolhouse, they must choose between their religious conscience and full participation in the classroom.

And the harm extends beyond violation of conscience. Students who object may feel compelled to voice dissent, marking themselves as different and potentially inviting social ostracism.⁶³See Lee, 505 U.S. at 593 (“Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.”). Alternatively, they may remain silent despite religious convictions calling them to witness their faith, experiencing the spiritual harm of perceived renunciation of their beliefs.⁶⁴Id. (“What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.”). Still others may gradually internalize the displayed messages through daily government-mandated exposure.⁶⁵See Engel v. Vitale, 370 U.S. 421, 430–01 (1962) (responding to the argument that the New York public school prayer was voluntary, the Court noted: “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”). To disregard these harms as “offense” is to deny religious dissenters and nonbelievers the same solicitude that the Court extends to religious believers who seek accommodations from neutral, generally applicable laws—deference to the impact those beliefs have on their conscience.⁶⁶See supra notes 58–60 and accompanying text. Recognizing this reality requires adjusting our constitutional methodology.

IV. Widening the Historical Lens

As the Supreme Court turns to history and tradition to interpret the Establishment Clause, it must not ignore the European persecution that shaped the Founders’ understanding of religious establishment. An expanded historical focus is appropriate because the collective memories of the Founders’ generation included European religious persecution passed on through family histories and influential Protestant literature.⁶⁷See Engel, 370 U.S. at 434 (“[C]aused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.”); Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (“A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.”). After King Louis the XIV revoked the Edict of Nantes and violently imposed religious uniformity, about 160,000 Huguenots fled France to escape religious persecution, with those arriving in America constituting “the first major continental European refugee group to arrive in the colonies after 1650.”⁶⁸See Butler, supra note 9, at 1, 6; Jon Butler, Religion in Colonial America 55 (2000); Edwin S. Gaustad & Leigh E. Schmidt, The Religious History of America: The Heart of the American Story from Colonial Times to Today 103–04 (rev. ed. 2002). While small in number and quickly assimilated into other faiths, the Huguenot stories of persecution in France had an outsized impact in the New World.⁶⁹See Paul McGraw, The Memory of the Huguenots in North America: Protestant History and Polemic, in The Huguenots: History and Memory in Transnational Context 285, 285 (David J. B. Trim ed., 2011) (“American historians, preachers and politicians from the early seventeenth century to the present have found the study of Huguenots an important element in their polemics.”). For example, Benjamin Franklin was influenced by the writings of New England preacher Cotton Mather,⁷⁰Mather was a Puritan preacher in early eighteenth-century New England who has been described as “arguably [one of] the most influential Christian ministers and thinkers in British North America.” Ryan P. Hoselton, Cotton Mather, Jonathan Edwards, and the Quest for Evangelical Enlightenment: Scripture and Experimental Religion 2–3 (2023). Franklin noted this influence in a letter to Cotton Mather’s son Samuel. See Benjamin Franklin to Samuel Mather, 12 May 1784, reprinted in Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Franklin/01-42-02-0150 [https://perma.cc/F9ZQ-8VXM] (explaining that Cotton Mather’s “Essays to do Good” had “an Influence on my Conduct thro’ Life”). who referenced Huguenot persecution when warning his followers about the fragility of religious freedom.⁷¹See Butler, supra note 9, at 1–2, 73. And John Jay—the first Chief Justice of the United States,⁷²Blackmun, supra note 25, at 247. delegate to the New York ratifying convention, and author of five of the Federalist Papers—was deeply affected by the Catholic persecution of his Huguenot ancestors.⁷³Bonomi, supra note 25 at 12, 16 (describing “Jay’s passionate recollection of the Huguenots’ persecution at the hands of French Catholics”); Goodfriend, supra note 25, at 182 (explaining that “John Jay’s memoir . . . reveals that the distinguished Revolutionary leader, diplomat, and chief justice of the United States had a keen interest in his family’s history and, more generally, in the history of French Protestants,” including “the travails of his ancestors”). These memories likely prompted his proposals to include provisions in the New York State Constitution that would restrict Catholic voting and officeholding.⁷⁴See Bonomi, supra note 25, at 15–16; Religious Toleration and the New York State Constitution [Editorial Note], Nat’l Archives: Founders Online, https://founders.archives.gov/documents/Jay/01-01-02-0216 [https://perma.cc/DMT7-2FM2] (attributing Jay’s support for provisions restricting Catholic voting and office holding to “persecution of Jay’s Huguenot ancestors by the Catholic Church and his adherence to traditional Whig views identifying Protestantism with liberty and Catholicism with oppression, foreign influence, and sedition”). Such dissemination of Huguenot experiences makes them relevant to understanding the Founders’ worldview.

To object that European history has no place in American constitutional interpretation would miss the point. While this argument may apply to contemporary international law,⁷⁵See generally Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication, 25 Emory Int’l L. Rev. 197 (2011). originalists cannot coherently insist on a historical methodology while ignoring the historical experiences that shaped the Framers’ worldview.⁷⁶Cf. Green, supra note 8, at 523–43 (discussing how the Supreme Court’s recent selective view of history determines the outcomes of contemporary Religion Clause cases). To do so privileges form over substance.

This broader historical view has immediate implications. When states argue that Stone v. Graham⁷⁷Stone v. Graham, 449 U.S. 39 (1980). wrongly invalidated classroom Ten Commandments displays because no Founding-era law specifically prohibited such practices,⁷⁸See Appellants’ Opening Brief, supra note 11, at 43 (arguing that the challenger has the burden to show that people at the time of the Founding considered display of the Ten Commandments to be an establishment of religion). courts should recognize the fallacy. The Founders prohibited religious establishment based on principles learned from European experience, not a mere list of then-existing practices. They understood that government power to mandate religious expression—whether through processions or classroom displays—inherently coerces conscience.

The Court’s most recent Second Amendment decision supports looking beyond specific historical practices to underlying principles. In United States v. Rahimi, the Court held that the Amendment did not bar states from disarming people against whom a court had imposed a domestic violence restraining order.⁷⁹United States v. Rahimi, 602 U.S. 680, 693 (2024). The Court did not look for a relevant Founding-era practice concerning firearm possession and domestic violence restraining orders, which did not exist because the very notion of domestic violence is of recent origin. Instead, the Court found an analogy in the general historical principle of disarming violent persons, which would include the modern practice of keeping firearms from someone found to pose a threat of violence to their domestic partner.⁸⁰Id. at 700 (“Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.”). When applying the Establishment Clause, the Court should similarly shift its gaze from specific practices to general principles.

Courts reviewing state Ten Commandments mandates should therefore ask whether the challenged law shares the coercive structure of historical religious establishments: Does it confront a captive audience? Does someone claim that their sincere religious beliefs compel them to respond in a manner that reveals those beliefs? Does it occur in a setting where social consequences might attach to dissent? If so, history and tradition condemn the practice, regardless of whether any early American government had tried that exact method of establishment.

Conclusion

States arguing for the reversal of Stone v. Graham do so under the banner of historical authenticity, claiming that classroom Ten Commandments displays are consistent with our nation’s history and traditions. This Essay demonstrates that precisely the opposite is true. The Founders’ generation, deeply informed by the European experience with religious coercion, understood that government-mandated religious displays could be tools of persecution. The Eucharistic processions of the Reformation provided a clear and well-understood model of how a seemingly benign religious observance could be weaponized to identify and marginalize dissenters. The principle articulated in Stone—that a state may not mandate the placement of a sacred text in public schools—is not a remnant of the abandoned Lemon test, but an application of the history of religious establishments. Thus, overruling Stone would not correct a historical error but commit one.

* James L. Koley ’54 Professor of Constitutional Law, Creighton University School of Law. This Essay is part of a larger work in progress that discusses religious practices from Reformation-Era Europe that shed light on the meaning of the Establishment and Free Exercise Clauses. My thanks to Leigh Ellis and Yvonnda Summers for their feedback on drafts of this Essay.