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The Supreme Court will soon consider whether to review the U.S. Court of Appeals for the 5th Circuit’s full panel decision upholding a Texas law requiring a poster of the Ten Commandments to hang in public school classrooms (as well as a somewhat similar case in Louisiana). The Supreme Court need not take this case, but it was rightly decided. The 5th Circuit used the correct “historical practices and understandings” test to analyze this establishment clause challenge and reached the right result that the Texas law is constitutional. I want to focus on one part of its ruling in particular: That a text with religious origins can over time develop an additional nonreligious message which public schools can acknowledge with passive displays in classrooms. Here, Texas’ decision to hang the Ten Commandments in its classrooms does not promote religion but acknowledges its foundational role in American law.
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In its 2022 decision of Kennedy v. Bremerton School District, the Supreme Court announced a new test for the establishment clause. There, the majority discarded what is known as the “Lemon Test” (named for the 1971 decision of Lemon v. Kurtzman) to determine whether state action violates the establishment clause, which had asked courts to consider whether such action had a “secular purpose”; whether it had the “principal or primary effect” of “advanc[ing]” religion; and whether the action contributed to “excessive government entanglement” with religion. In Kennedy, the court replaced this convoluted test with a more originalist one that looked at “the historical practices and understandings” of what established churches actually did under law as governmental entities.
The 5th Circuit applied that new test in the challenge to S.B. 10, the Texas law enacted in June 2025, requiring public elementary and secondary schools to display in each classroom a “durable poster or framed copy of the Ten Commandments.” The display must be at least 16×20 inches, easily readable, displayed in a conspicuous place, and must only include the text of the Ten Commandments and nothing else. The schools can acquire these displays either by accepting compliant, privately donated displays, or purchasing compliant displays using district funds.
Shortly after its passage, numerous parents of varying religious backgrounds sued several Texas school districts claiming S.B. 10 violated the establishment clause and the free exercise clause of the First Amendment. In Nathan v. Alamo Heights Independent School District, the 5th Circuit, sitting en banc, upheld Texas’ law. Specifically, the 5th Circuit found that S.B. 10 did not violate the establishment clause because it punishes no one who rejects the Ten Commandments, requires no religious exercise or observance, and neither catechizes students on the Ten Commandments nor encourages them to adopt them. The 5th Circuit reasoned that, while “[p]laintiffs have sincere religious disagreement with its content . . . that does not transform the poster into a summons to prayer.”
In upholding the Texas law, the 5th Circuit considered the Supreme Court’s 1980 decision in Stone v. Graham, where the high court ruled unconstitutional a Kentucky law that required posting of the Ten Commandments in public schools. Because Stone relied on the Lemon test to rule against the Ten Commandments in the Kentucky classrooms, the 5th Circuit followed the Supreme Court's later directive in Kennedy that it was abandoning the Lemon test and its progeny. “With Lemon extracted, there is nothing left of Stone,” the 5th Circuit concluded.
The Nathan court’s opinion demonstrates how to adhere to the Supreme Court’s ruling in Kennedy, which asks courts to “reference … historical practices and understandings” in order to interpret the establishment clause so as to “faithfully reflect[] the understanding of the Founding Fathers.” As the 5th Circuit recognized, this requires asking “a question rooted in the past: does the law at issue resemble a founding-era religious establishment?”
When Congress and the state legislatures enacted the First Amendment’s establishment clause in 1791, people generally understood what an established church did given their presence in many of the states and European countries. At its core, the establishment clause forbade Congress (and later the states, with the passage of the 14th Amendment in 1868) from enacting laws that formally coerced people to participate in the activities of a particular church.
Those challenging the Texas law argue that the religious origins of the Ten Commandments mean it is unconstitutional to place them in a public school that impressionable youth are required by state law to attend, and doing so thus at least implicitly “coerces” these students into religious participation.
This argument has several flaws (as pointed out by the 5th Circuit), but I believe its most fundamental error is to assume that the Ten Commandments can only have one meaning and that meaning is always religious. Indeed, this flies in the face of the Supreme Court’s own statement that a religious symbol like the Ten Commandments can acquire over time an additional nonreligious meaning.
In the 2019 case of American Legion v. American Atheist Association (which was brought by the First Liberty Institute), the court considered whether Maryland violated the establishment clause by maintaining a memorial to deceased World War I veterans that was in the shape of a cross. Obviously, a cross signifies the crucifixion of Jesus Christ. Nevertheless, the court, in an opinion by Justice Samuel Alito, decided that the memorial could stand, as over time the cross had gained additional nonreligious meanings of marking where someone had died in battle so as to honor their ultimate sacrifice in war. The mothers who erected the cross did not do so to promote Christianity, but to honor those from Prince George’s County, Maryland, who died while serving in World War I.
To bolster its ruling, the Supreme Court pointed to the Ten Commandments as another example of a religious symbol that has acquired an additional nonreligious meaning over time:
[A]s time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Take the example of Ten Commandments monuments, … For believing Jews and Christians, the Ten Commandments are the word of God handed down to Moses on Mount Sinai, but the image of the Ten Commandments has also been used to convey other meanings. They have historical significance as one of the foundations of our legal system, and for largely that reason, they are depicted in the marble frieze in our courtroom and in other prominent public buildings in our Nation's capital.
As the court recognized, its very courtroom has a huge carved figure of Moses holding the Ten Commandments, with brass latticed screens on both sides of the courtroom filled with small imprints of the Ten Commandments. This is not because the Supreme Court desires to promote (or coerce others into adopting) the religious message of the Ten Commandments; rather, this is to acknowledge that the Ten Commandments serve as a foundation for the Anglo-American legal system.
Others have long echoed Alito’s words that the Ten Commandments “have historical significance as one of the foundations of our legal system.” John Quincy Adams wrote to his son that “[t]he law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes adapted to that time only, … but many others were of universal application—laws essential to the existence of men in society, and most of which have been enacted by every nation which ever professed any code of laws.” William Blackstone wrote in his Commentaries on the Laws of England that “all human laws” depend on “natural law and divine law.” Blackstone defined divine law to be precepts “found only in the holy scriptures.” He then gave as an example “the case of murder” which he said “is expressly forbidden by the divine.”
In 1997, the Senate and the House of Representatives passed concurrent resolutions that stated in part that “the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization.” And during oral argument in the American Legion case, even Monica Miller, the attorney for the American Humanist Association challenging the World War I memorial, conceded that “the Ten Commandments … [is] basically shorthand for law itself,” because of its “dual secular meaning.”
Those challenging the Ten Commandments posters in the classrooms assume that the religious content of the Ten Commandments renders them constitutionally toxic, while refusing to recognize their additional nonreligious message.
Nor is such a dual message uncommon in public schools. Think of a public school teaching a unit on the Civil War. A teacher hangs on the wall Abraham Lincoln’s famous words, “a house divided against itself cannot stand.” But wait! Lincoln was quoting the words of Jesus from Mark 3:25. Also during that Civil War unit, say the teacher hangs the lyrics of the Battle Hymn of the Republic, adopted by Union supporters and opponents of slavery as their rallying song. It started as a Christian hymn: “Mine eyes have seen the glory of the coming of the Lord.” It would be constitutional overkill for a court to order a public school studying the Civil War to remove from the walls Lincoln’s quote and the Battle Hymn of the Republic just because they have religious origins.
Of course, that is not all. If religious materials in public schools inherently violate the establishment clause because it is irrelevant that they have an additional meaning, how could teachers ever have students study the anti-slavery speeches of Frederick Douglass, or Martin Luther King Jr.’s Letter from the Birmingham Jail, or view Renaissance art, or sing African-American spirituals or Handel’s Messiah? It would also be questionable for the school to hang posters on the classroom walls telling students to love their enemies, or to go the extra mile to help someone, or to do unto others as you would have them do unto you, all words expressed by Jesus in the Bible.
In the cross case, the Supreme Court gave another example of words that began with religious meaning and over time added a nonreligious meaning: the names of U.S. cities, like Bethlehem, Pennsylvania; Las Cruces, New Mexico; Providence, Rhode Island; Corpus Christi, Texas, etc. As the Supreme Court made clear, those city names do not violate the establishment clause – and it would be absurd to think otherwise. But under the establishment clause theory of those challenging the Ten Commandments law, it is hard to see how one could draw a line here and hang the name of their school district in classrooms without violating the First Amendment. Either words can have two meanings, or else the St. Paul (Minnesota) Public Schools better start sandblasting its name from the schoolhouse walls.
One common reaction might be that the Ten Commandments not only address universal moral principles but also certain tenets more specific to Judaism and Christianity, such as having no other gods before the one God or a prohibition of graven images of Him. But those commandments do not cancel out the fact that the Ten Commandments collectively have served as a foundation for the Western legal tradition. Texas also designed its law so that public schools cannot use the posters to proselytize or coerce students to believe them, or to punish those who do not. A Hindu student, for example, could read the Ten Commandments and conclude that her family lives in a nation where most people believe in monotheism, not the polytheism of her family, and also realize that the Founding Fathers’ religious beliefs helped form a Constitution that protects all Americans, including her. That Constitution forbids any religious tests for people seeking public office, prohibits a state church that compels belief or punishes dissent, and protects everyone’s right to freedom of speech, belief, and conscience.
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All of this is to say, passive displays with religious origins have not historically been viewed as establishment clause violations, especially when the display has a second, nonreligious meaning. The same can be said about S.B. 10.
