Did the Fifth Circuit just tee up the next school‑religion showdown at SCOTUS?
A year ago, Texas passed a law telling every public school classroom to post a copy of the Ten Commandments. At the time, it looked like legislation with a destination — built to invite a Supreme Court fight over religion in public schools. A lot has happened since, and we’ll walk through the main lawsuits, the key rulings, and the contentious Fifth Circuit decision handed down this week.
This fight appears headed straight for the U.S. Supreme Court.
Texas Commands the Ten Commandments
In June 2025, Texas adopted S.B. 10, a statute requiring every public elementary and secondary school to display a durable poster or framed copy of a specific state‑selected version of the Ten Commandments in each classroom. The law, codified at Texas Education Code § 1.0041, dictates the size of the display (at least 16 inches wide and 20 inches tall) in an easily readable typeface and requires it to be hung in a “conspicuous” place where students can read it from anywhere in the room.
S.B. 10 also fixes the exact biblical text, using a King James–style wording that begins, “I AM the LORD thy God” and continues through prohibitions on graven images, adultery, and coveting a neighbor’s wife, “manservant,” and “maidservant,” with no other material allowed on the poster. Schools must accept any privately donated copy that complies with these requirements and may purchase compliant displays with district funds, so once the law is fully implemented, students in Texas public schools will encounter the same state‑approved religious text in every classroom they attend.
Unlike some earlier display laws, S.B. 10 does not permit schools to add surrounding historical documents or contextual explanations, nor does it authorize them to supplement this text with other religious or secular materials on the same poster. Having one uniform, state‑chosen scriptural text, mandated in every classroom and insulated from contextual balancing, is the reason S.B. 10 is an ideal vehicle for broader Establishment Clause and Free Exercise challenges.
Parents Push Back on Posters
Not long after the law was passed, a multifaith group of Texas parents and clergy filed the main challenge to S.B. 10 in federal court. The group includes Jewish, Christian, Unitarian Universalist, Hindu, atheist, agnostic, and non‑religious families with children in public schools across the state. They argue that forcing every classroom to display a state‑selected version of the Ten Commandments amounts to the government picking an official religious message and privileging one Christian interpretation over other faith traditions and nonbelief.
They allege that forcing every classroom to display the state’s chosen Ten Commandments text adopts an official religious message, privileges one Christian‑leaning interpretation of the Decalogue over other traditions, and stigmatizes dissenting beliefs and nonbelief. Many Jewish and Christian parents object that Texas’s version omits covenant language central to their theology, uses patriarchal and slavery‑tinged phrasing such as references to “manservant” and “maidservant,” and introduces concepts like adultery and idolatry in ways that conflict with how they want to teach their children about religion.
Atheists, agnostics, devotees of other religions, and unaffiliated families likewise argue that the permanent, compulsory display tells their children they are outsiders in their own schools unless they accept the state’s preferred religious text, burdening both the Establishment Clause and their Free Exercise right to direct their children’s religious or non‑religious upbringing.
District Court Says No to the Tablets
Last August, Judge Fred Biery of the Western District of Texas granted a preliminary injunction blocking S.B. 10 and denied the school districts’ motion to dismiss, preventing the Ten Commandments mandate from taking effect. He concluded that the law likely violates the Establishment Clause under Stone v. Graham, the 1980 Supreme Court case that struck down a Kentucky law requiring posted copies of the Ten Commandments in every public school classroom because it had no genuine secular purpose and was primarily religious in nature.
The judge also found a likely Free Exercise violation, reasoning that the mandatory displays would interfere with parents’ ability to direct their children’s religious upbringing, stigmatize students who do not share the state‑favored beliefs, and pressure children toward the state’s chosen religious message.
The school districts appealed, and the U.S. Court of Appeals for the Fifth Circuit took the case en banc. The court heard the Texas case alongside Roake v. Brumley, a similar case challenging a Louisiana Ten Commandments statute. The court later dismissed the Louisiana case as unripe because that statute left key implementation details to local officials, but it kept the Texas case, Nathan v. Alamo Heights Independent School District.
A Razor‑Thin Win for S.B. 10
After all 17 judges of the Fifth Circuit heard the case en banc, a slim 9–8 majority held that S.B. 10 does not, on its face, violate either the Establishment Clause or the Free Exercise Clause.
On the Establishment Clause, the majority said Stone v. Graham no longer controls because it was built on the now‑abandoned Lemon test. Named for the 1971 case Lemon v. Kurtzman, that test asked whether a law had a secular purpose, a primarily neutral effect on religion, and no excessive church‑state entanglement. But the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District instructed lower courts to stop using Lemon and instead look to “historical practices and understandings.”
Now, courts must instead ask whether a law resembles a founding‑era religious establishment. Looking to that history, the court emphasized that classic establishments included state control over church doctrine and personnel, mandatory church attendance backed by penalties, religious taxes, punishment of dissenters, and the use of churches to perform civil functions — features the judges said S.B. 10 does not share.
The Fifth Circuit majority rejected the parents’ argument that the law is inherently coercive. It reasoned that S.B. 10 “puts a poster on a classroom wall” but does not make students pray, recite, or profess belief, authorize teachers to catechize, or impose any penalty for disagreement. Because it saw no government‑mandated worship or comparable pressure, the court concluded the Ten Commandments requirement is not the kind of coercion that marked historical establishments of religion.
On the Free Exercise side, the court treated the Supreme Court’s decision last year in Mahmoud v. Taylor as the high‑water mark for when school policies substantially burden religious exercise. It contrasted Mahmoud’s opt‑out‑free curriculum (explicitly designed to “disrupt” children’s religious views on sexuality and to tell them their parents were wrong) with S.B. 10. The majority pointed out that the latter authorizes no religious instruction, gives teachers no license to contradict families’ beliefs, and does not require students to affirm or renounce anything. In their view, “merely exposing children to religious language,” without more, is not a substantial burden on parents’ or students’ religious exercise. So, they said, the Free Exercise claims had to be dismissed.
Of course, not everyone saw it that way.
Eight Justices Say ‘Thou Shalt Not’
Several judges on the en banc court broke sharply with the majority. Judge Irma Carrillo Ramirez penned the principal dissent, joined by six other judges, warning that S.B. 10 crosses the same constitutional lines that earlier school‑prayer and Ten Commandments cases drew.
They argued that Stone v. Graham still controls laws like S.B. 10, because it involved nearly identical Ten Commandments postings in public school classrooms and rejected them as lacking a genuine secular purpose. Stone already held that “the Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths,” that “[t]he pre‑eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature,” and that “[p]osting of religious texts on the wall serves no such educational function.” So, they argue, a law like S.B. 10 clearly violates the Establishment Clause.
The dissenters also rejected the majority’s narrow view of coercion. They emphasized that “if the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” They highlighted that “students in such institutions are impressionable and their attendance is involuntary,” that “the State exerts great authority and coercive power through mandatory attendance requirements,” and that the kind of “permanent fixture of religious rules in public‑school classrooms, with no educational function, violates these most basic First Amendment principles.”
In their view, this sort of state‑sponsored religious messaging in schools “ordains that…government…prefer one religion over another” and intrudes on “the traditional interest of parents with respect to the religious upbringing of their children,” precisely the harms the Establishment Clause and Free Exercise Clause are supposed to prevent.
Judge Leslie Southwick wrote a separate dissent that uses narrower legal reasoning, avoids broad doctrinal declarations, and focuses on practical concerns about government overstepping in matters of conscience–while still concluding that S.B. 10 is unconstitutional in public schools. He emphasized that, in his view, religion belongs to conscience rather than the state, writing that “religion . . . is a matter of the mind and the heart” and that faith “cannot flourish when it is forced.”
Southwick closed by invoking a Stephen Crane poem to illustrate the difference between genuine belief and state‑mandated displays. He warned that a permanent, state‑authored Ten Commandments poster in every classroom “edges precariously close to creating a religious orthodoxy in the classroom,” a result he understood the First Amendment to forbid.
Awaiting a Higher Power
In all, nearly half of the Fifth Circuit dissented from the majority. It should be no surprise, then, that attention has already turned to what happens next.
Normally, the Supreme Court steps in when different federal circuits issue conflicting rulings on the same kind of law. But so far, no other federal appeals court has issued a published merits decision going the opposite way on a comparable, statewide classroom‑posting mandate.
Even without a traditional circuit split, the combination of a 9–8 en banc divide and the apparent clash with Stone v. Graham could itself be enough to draw the Supreme Court into deciding how far states may go in mandating religious messages in public schools.
One way or another, it looks like the final word on these Ten Commandments will be handed down by nine.
Related Resources
- Freedom of Religion (FindLaw’s Learn About the Law)
- SCOTUS Snubs Kentucky Clerk Who Denied Gay Couples Marriage Licences (FindLaw's Federal Courts)
- Fifth Circuit Orders New Look at Implied Miranda Waiver (FindLaw's Federal Courts)
