Lawyers for a group of Texas families with children in the state’s public schools came to the Supreme Court on Monday, asking the justices to weigh in on the constitutionality of a 2025 law that requires each classroom in that state to display a copy of the Ten Commandments. Asking the justices to review a ruling by the U.S. Court of Appeals for the 5th Circuit that upheld the law, the challengers told the justices that the lower court “flouted this Court’s binding precedents and gutted the religious-freedom rights of public-school children and parents.”
The justices have considered a similar law before. In 1980, in Stone v. Graham, the court ruled that a Kentucky law requiring public schools to display a framed copy of the Ten Commandments in classrooms violated the Constitution. In an unsigned opinion, the court wrote that “[i]f 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. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause,” which prohibits the government from favoring one religion over another.
In the 46 years since the Stone decision was handed down, both the court’s make-up and its religious-freedom jurisprudence have changed significantly. In particular, the court’s ruling in Stone rested on its conclusion that the Kentucky law failed the “Lemon test” – a three-part test, outlined in the 1971 case Lemon v. Kurtzman, to determine whether a law violates the Constitution’s establishment clause. Under that test, a statute had to be found to have a secular purpose, the statute could not promote or restrict religious beliefs or practices, and the statute could not foster excessive church-state entanglement. In 2022’s Kennedy v. Bremerton School District, in which the court ruled in favor of a high school football coach who lost his job after leading post-game prayers on the field, Justice Neil Gorsuch’s opinion for the six-justice majority indicated that Lemon had been “long ago abandoned.” Instead, Gorsuch wrote, courts should look at history and the understanding of the drafters of the Constitution to determine whether a law or practice violates the establishment clause.
Three years after the court’s decision in Kennedy, Texas passed S.B. 10, the law at the center of the dispute now before the court. It requires public elementary and secondary schools to display the Ten Commandments in a conspicuous place in each classroom. Moreover, the law prescribes the specific text – drawn from the King James Bible – of the Ten Commandments that must be used.
The challengers are public-school families from an array of religious (including Christianity, Judaism, and Hinduism) and nonreligious backgrounds. They went to federal court, where they argued that the law violated both the establishment clause and their right to freely exercise their religion.
By a vote of 9-8, the full 5th Circuit upheld the law in April. In the majority’s view, the court’s decision in Stone rested on its ruling in Lemon, which had been “jettisoned” in Kennedy. “With Lemon extracted, there is nothing left of Stone,” the majority emphasized. Instead, the majority said, whether S.B. 10 violated the establishment clause hinged on whether it “resemble[s] a founding-era religious establishment.”
The answer to that question, the majority concluded, was no, because the law does not do any of the “kinds of things ‘establishments of religion’ did at the Founding.” S.B. 10, the majority said, “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.”
The majority also rejected the families’ effort to rely on Mahmoud v. Taylor, a 2025 decision in which the Supreme Court agreed that a Maryland school board violated the rights of parents to freely exercise their religion when it refused to allow them to opt their children out of instruction that included LGBTQ+ themes. S.B. 10, the majority stressed, “authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’).”
In the petition for review that they filed on Monday, the challengers urged the justices to take up their case. They argued that the 5th Circuit “believes that Stone was somehow overruled by Kennedy, even though Kennedy does not mention Stone. But only this Court can overrule its own decisions, and it does not do so silently.”
The challengers also contended that the 5th Circuit’s decision “contravene[s] this Court’s recent ruling in Mahmoud and destabilize[s] free-exercise law. If the permanent, unavoidable imposition of biblical scripture in public-school classrooms does not interfere with, or threaten to undermine, parents’ ability to direct their children’s religious education and to instill particular religious beliefs and practices, it is difficult to imagine what would.”
