A deeply divided federal appeals court has ruled that public schools in Texas are allowed to display Ten Commandments posters or framed copies in public school classrooms, setting up a potential landmark case in the Supreme Court’s next term.
On Tuesday, the full United State Court of Appeals for the Fifth Circuit, in a 9-8 decision in Nathan v. Alamo, held that a state law, S.B. 10, requiring the 10 Commandments classroom display does not violate the First Amendment’s Establishment Clause or Free Exercise Clause. These clauses read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Link: Read the Decision
The Fifth Circuit majority considered a Supreme Court precedent set in Stone v. Graham (1980), where a divided Court ruled that a Kentucky law requiring the Ten Commandments in public classrooms violated the Establishment Clause. Instead, the Fifth Circuit majority cited the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District as rendering the Stone precedent as obsolete. The court’s minority held that only the Supreme Court can overturn its own precedents, and the Texas law violates the “most basic First Amendment principles.”
The majority decision in Texas
The Fifth Circuit Court of Appeals was considering the Texas law in conjunction with a similar law passed in Louisiana that was contested in Roake v. Brumley. A three-judge Fifth Circuit panel considering Roake ruled that Louisiana’s 10 Commandments law was unconstitutional. The full Fifth Circuit bench vacated Roake in February 2026 as a premature challenge, but it determined that the Texas case was eligible to be heard by the full appeals bench.
In his majority opinion, Circuit Judge Stuart Kyle Duncan said the Fifth Circuit majority properly discarded the Stone precedent since it relied on a prior Supreme Court precedent, Lemon v. Kurtzman (1971). Under Lemon, the Supreme Court created a three-part test to determine if a law violated the Establishment Clause.
However, in Bremerton, Justice Neil Gorsuch established a new method to replace the Lemon test. In his majority opinion, Gorsuch cited the “shortcomings” associated the Lemon test’s “abstract, and ahistorical approach to the Establishment Clause. “
“This Court long ago abandoned Lemon and its endorsement test offshoot,” Gorsuch wrote in Bremerton. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’
“Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago,” Duncan wrote. “With Lemon extracted, there is nothing left of Stone,” Duncan wrote. Applying the Bremerton test, Duncan asked if the Texas law conflicted with the Founding-era understanding of “religious establishment.” Duncan stated that in the late 18th century, the establishment of religion “was a familiar institution: a polity’s official church or religion.” He did not see conflict with S.B. 10.
“S.B. 10 looks nothing like a historical religious establishment. It does not tell churches or synagogues or mosques what to believe or how to worship or whom to employ as priests, rabbis, or imams. It punishes no one who rejects the Ten Commandments, no matter the reason,” Duncan believed.
Duncan also disagreed with arguments that S.B. 10 conflicted with a recent Supreme Court decision, Mahmoud v. Taylor (2025), where a divided Supreme Court held that parents could opt their children out from public school instruction they believed violated their free exercise of religion rights.
“S.B. 10 authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’). No child is made to recite the Commandments, believe them, or affirm their divine origin,” Duncan concluded. He cited the Supreme Court’s pledge of allegiance precedent in West Virginia State Board of Education v. Barnette (1943), where public school students who were Jehovah’s Witnesses were permitted to not salute the flag or say the pledge as instructed by their parents.
Circuit Judge James C. Ho concurred with the majority opinion. “No challenge to either Texas or Louisiana law could possibly succeed, because neither law comes close to imposing either an establishment of religion or a prohibition on the free exercise thereof, as originally understood by the Founders or articulated by any governing Supreme Court precedent,” Ho wrote.
The dissent objects on basic grounds
In a dissent joined by six other judges, Circuit Judge Irma Carrillo Ramirez stated S.B. 10 as written clearly violates the Establishment Clause and the Free Exercise Clause. “Legislation requiring the permanent fixture of religious rules in public-school classrooms, with no ‘educational function,’ violates these most basic First Amendment principles,” she argued.
Ramirez objected to Judge Duncan’s claim that the Supreme Court has overruled the Stone precedent. “Although Kennedy abandoned Lemon and its endorsement test offshoot, it did not cite, much less purport to ‘abandon’ or overturn, Stone—despite the opportunity to do so,” she claimed. “Whatever the fate of Stone may be ‘as an inferior court,’ we must ‘adhere strictly to’ it until the Supreme Court says otherwise. And under Stone, S.B. 10 is unconstitutional.”
Ramirez also held that under Bremerton’s historical test, the Texas law was still unconstitutional. She repeatedly cited the Supreme Court’s precedent in Lee v. Weisman (1992), where a divided court ruled that including prayers from a rabbi at a public-school graduation was a subtle and indirect religious coercion because students felt compelled to stand during the recitals.
“Defendants assert that, under Kennedy, there are six identified ‘hallmarks’ of religious establishments that the Establishment Clause was adopted to prohibit, and if a challenged practice does not resemble one of these hallmarks, there is no constitutional violation,” Ramirez reasoned.
“Kennedy specifically placed coercion along the lines of that found in Lee among those ‘foremost hallmarks,’” Ramirez concluded, noting the Supreme Court’s long history of “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”
In a separate dissent, Circuit Judge Leslie H. Southwick believed parts of the Lemon test were still viable for consideration in First Amendment cases. “In my view, the [Lemon] test was disassembled, and one part discarded — but other parts of what had been fused remain usable.”
Circuit Judge Stephen A. Higginson also objected to the majority decision. “The Framers intended disestablishment of religion, above all to prevent large religious sects from using political power to impose their religion on others,” he believed. “The majority defies foundational First Amendment concepts, ignores the harms students will face, and usurps parents’ rights to determine the religious beliefs they wish to instill in their own children.”
In a statement issued after the Fifth Circuit ruling, the American Civil Liberties Union of Texas said it anticipated appealing the decision to the Supreme Court.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
