Most Supreme Court cases go by their official names. Some get nicknames. The nickname for Federal Communications Commission v. Pacifica Foundation is the “Seven Dirty Words Case.” It upheld the right of the FCC to regulate indecent language on the public airwaves. (Yes, in theory the FCC can turn off the firehose of obscenity on radio and television.) FCC v. Pacifica Foundation was about seven vulgarisms that a New York radio station broadcast at 2 pm in 1973, when they could be heard by children. A parent filed a complaint and the FCC told the station if it repeated that behavior, it could be sanctioned, up to losing its license.

Anybody listening to mass media today knows that, for the FCC, decency standards are a dead letter. Indeed, for many programs that language is now a badge of honor. I make that observation to comment on the potential for a “Ten Forbidden Words Case” now brewing.

When Exodus 20:1 prepares to list them, it does not say God “spoke all these ten commandments.” It says God “spoke all these words” (הַדְּבָרִ֥ים). The Commandments are described as God’s dabarim, His “words.”

Louisiana Governor Jeff Landry just signed a bill his Legislature passed mandating the display of God’s words in public classrooms. That, of course, has the usual suspects in a lather. They divide into two camps.

The first group are those who want to read the First Amendment’s protections of freedom of religion as freedom from religion. In that view, anything that has ever been associated with religion suffers a kind of anti-Midas touch, turned into something contaminated that must be removed from the public square. Never mind that the most fundamental assumptions of American law are rooted in the Ten Commandments; their guilt-by-religious-association is established.

No doubt advocates of this viewpoint will invoke Stone v. Graham, a 1980 Supreme Court decision that invalidated a Kentucky law requiring the posting of the Ten Commandments in public schools. Louisiana’s case invites the Court to revisit Stone, which was decided by a Court split 5-4. One reason Stone may be up for grabs is that it rested on a 1971 case, Lemon v. Kurtzman, in which the Supreme Court imposed its self-designed, three-pronged “Lemon” test for whether a law might run afoul of the First Amendment. In Lemon, the Court said a law was unconstitutional unless it had a “secular” purpose, did not “advance” or “inhibit” religion, and avoided “excessive government entanglement” with religion.

Over the years, the Lemon tests have been attacked, both because their  criteria in practice have proved unmanageable in the real world and in theory because it turns the First Amendment on its head. The First Amendment protects religion in public life; it does not demand religion disappear from public life. And, over the years, the Supreme Court has progressively abandoned, in practice and ever more in theory, the Lemon tests. Revisiting Stone could finally bury them, particularly when that decision was originally made by a Court split right down the middle.

The Left’s nightmare is that the Court return to the original meaning of the First Amendment, i.e., that religion is a specially protected right and that the only thing the Constitution requires is that no denomination be given a privileged, legal perch. It does not mean that “democracy” requires a state to pretend that religion does not exist or is something its citizens may practice everywhere but in public life. As Richard John Neuhaus used to put it, “democracy” does not require a “naked public square” where citizens must strip off their religious identities as the price of admission to public life and discourse. That also means citizens must not pretend that the Ten Commandments were tangential to forming the moral profile of our society or its laws, or that the Ten Commandments are historically no more significant than Confucius’s Analects or some Koranic excerpts.

The first group wants a secularized society and sees cases like this a threat to that vision. The second group avoids the full-blown secular agenda but gets there just the same. A great example is the free-speech absolutist and erstwhile conservative journalist who always invokes his “evangelical Christian” credentials, David French. On June 20, he opined in The New York Times (here) that Louisiana should not post the Ten Commandments. French’s laundry list for why Louisiana should refrain from posting the Ten Commandments were: it violates Supreme Court precedent; it treats the Ten Commandments as magic; and it will have no practical effect in kids’ lives. I’ve criticized his arguments at length on this blog (here). Why not give the Supreme Court the chance to fix a 45-year error by a divided court? Why imagine the Ten Commandments are magical when, in fact, their real affinity is to the natural law written on everyman’s heart? And why believe that, no matter how blasé a kid may be today, the ideas you put before his eyes day after day won’t take root in his mind?

But my issue with French here is precisely over his free-speech creds. Why does free-speech absolutist French insist conservatives should accept, in the name of “free speech,” drag queen story hours aimed at minors but suddenly develop an allergy when Louisiana proposes to speak the “words” found in Exodus 20? Why should Louisiana not speak those words? Does he think the state should continue to cling to an arguably warped reading of the First Amendment requiring it to pretend that religion and ideas with religious provenance do not exist? Why is that speech clearly limited in society? Why must a community, arguably formed of a majority of persons with roots in the religious and/or cultural milieu that shares the Ten Commandments, suddenly become mute when it comes to expressing their presence in public life?

It’s always been a dirty little secret of the secularizers and others that, somehow, the Judeo-Christian tradition — regardless of its central formative role in our culture — suffers particular disabilities when it comes to expressing its public presence. In that sense, Louisiana has done us a favor by trying to speak “Ephphatha!” — Be opened!