The fight over new laws in Texas and Louisiana requiring public school classrooms to display the Ten Commandments continued this month as the 5th Circuit Court of Appeals took up a pair of cases challenging these measures.
On January 20, the 5th Circuit sat en banc to hear oral arguments in these two cases, meaning that all of the court’s seventeen judges participated in the proceedings as opposed to a significantly smaller select panel.
Families pushing back against the laws have alleged in their complaints that the measures represent violations of the First Amendment’s Establishment and Free Exercise clauses.
The state government, however, has argued that the requirements are permissible, citing Supreme Court precedent and the Ten Commandment’s historical relevancy.
Some analysts have suggested that regardless of how the 5th Circuit rules, the disfavored parties are likely to appeal the decision to the United States Supreme Court.
Dr. Patrick Flavin, Baylor University’s Political Science Chair, indicated in an interview with KWTX that should this happen, the Justices would be likely to take up the case as it would “allow them to revisit a ruling back in 1980 which basically said schools posting the ten commandments is unconstitutional.”
Here, Flavin appears to refer to the case of Stone v. Graham, in which the Supreme Court issued a 5-4 ruling declaring that, in this case, the state’s law requiring public school classrooms to display the Ten Commandment was unconstitutional, as the document “had no secular legislative purpose” and was “plainly religious in nature.”
These disqualifying factors came from the three-pronged test established by the Court in the 8-1 ruling in the 1971 case of Lemon v. Kurtzman. In 2021, the Court “abandoned” this test in their ruling for the case of Kennedy v. Bremerton School District, replacing it was a consideration of “historical practices and understandings.”
This case centered on Joseph Kennedy, a high school football coach who prayed with many of his players during and after games. He was asked by the district to discontinue the practice, arguing that it violated the Constitution’s Establishment Clause. Kennedy went on to sue the district for violating his First Amendment rights, as well as his rights under Title VII of the Civil Rights Act of 1964.
Because in their ruling for this case the Justices “abandoned” the three part Lemon test — which played a key role in the Court’s 1980 ruling concerning the displays of the Ten Commandments in public school classrooms — there now appears to be an open question regarding whether or not the ruling in Stone remains applicable to the pending cases out of Louisiana and Texas.
[RELATED: Louisiana Faces Lawsuit Over Requirement to Display Ten Commandments in Public School Classrooms]
In their 2024 complaint, the Louisiana families allege that this requirement that the display of “scriptural dictates” in which this law would result “simply cannot be reconciled with the fundamental religious-freedom principles that animated the founding of our nation.”
“Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture,” the complaint states.
“It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences,” they argue. “And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.”
[RELATED: Texas Blocked from Displaying the Ten Commandments in Certain Public School Classrooms]
In Texas, Attorney General Ken Paxton shared a much different perspective on the topic in a statement shared this past summer after a lower court judge temporarily blocked enforcement of the state’s new law.
“The Ten Commandments are a cornerstone of our moral and legal heritage, and their presence in classrooms serves as a reminder of the values that guide responsible citizenship,” Attorney General Paxton said.
“From the beginning, the Ten Commandments have been irrevocably intertwined with America’s legal, moral, and historical heritage,” Paxton also said at the time.
“The woke radicals seeking to erase our nation’s history will be defeated,” he continued. “I will not back down from defending the virtues and values that built this country.”
The 5th Circuit Court of Appeals has not announced when rulings in these cases can be expected.
