Indiana Gets New Chance to Erect Ten Commandments Monument

Indiana may get to place a Ten Commandments monument on its statehouse lawn despite a 25-year old ruling that it likely was unconstitutional.

Judge Sara Evans Barker on Thursday lifted an injunction that had prevented the state from following through with the plan initiated by former Gov. Frank O’Bannon (D) in 2000. The state successfully argued that it should get a chance to reassert its claim that erecting the monument wouldn’t violate the US Constitution’s establishment clause since the precedent on which the earlier decision was based is no longer good law, the US District Court for the Southern District of Indiana judge said.

The state brought its request to vacate the injunction under federal civil procedure rule 60(b)(5), which permits vacatur if warranted by a significant change in the law. It’s become a favorite tool of conservatives who’ve recently convinced the US Supreme Court to overturn some major precedents, such as Roe v. Wade.

The Indiana Civil Liberties Union and others sued after O’Bannon announced a plan to build a seven-foot tall limestone monument containing the Ten Commandments, the Bill of Rights, and the Preamble to the Indiana Constitution. The district court, using a test set out by the US Supreme Court in 1971 in Lemon v. Kurtzman, said it likely violated the establishment clause and halted the plan.

The parties settled the case, agreeing that the state could reopen it if there was a change in precedent.

The ICLU argued that the state’s vacatur request didn’t comply with Rule 60(b)(5) because it wasn’t made within “a reasonable time.” Barker disagreed, saying it couldn’t have been filed any earlier because the justices didn’t make clear Lemon was no longer good law until the 2022 ruling Kennedy v. Bremerton School District, and Gov. Mike Braun (R), who is defending the plan, didn’t take office until 2025.

Barker stopped short of declaring the plan constitutional, saying there wasn’t enough evidence in the record to reach that conclusion. Courts that reached varying result on the establishment clause question did so based on extensive factual records, including expert testimony and historical sources addressing whether the plan historically would have been understood as an establishment of religion, she said.

Barker cleared the way for the case to go to trial but stayed her decision for 45 days to give the plaintiffs time to decide if they want to proceed with the litigation.

The case is Indiana Civil Liberties Union v. Braun, S.D. Ind., No. 00-cv-811, 5/28/26.