Court Poised to Restore Common Sense on Ten Commandment Displays in Schools

Tuesday afternoon, the U.S. Court of Appeals for the Fifth Circuit sitting en banc heard consolidated challenges to Louisiana and Texas laws requiring display of a nonsectarian version of the Ten Commandments in public school classrooms. The cases represent a critical juncture in First Amendment jurisprudence, one that will likely chart the course for Supreme Court review. Despite claims by ACLU–represented families that these laws violate both the Establishment Clause and the Free Exercise Clause, the constitutional objections lack historical and legal foundation. These laws should be upheld.

The Establishment Clause prohibits the government from establishing an official religion or coercing religious practice. It does not, however, create a strict wall of separation requiring the scrubbing of all religious references from public life. The Supreme Court has long recognized that acknowledgment of religion’s role in American history and culture does not constitute establishment.

The Ten Commandments occupy a unique position in this landscape. They represent not merely religious doctrine but foundational principles that influenced Western legal systems and American civic values. Prohibitions against murder, theft, and perjury form the bedrock of our criminal and civil law. The Commandments’ historical significance transcends any single faith tradition, which is precisely why these state laws specify a nonsectarian version.

Importantly, the Louisiana and Texas laws avoid coercive elements. Students are not required to recite, memorize, or affirm belief in the Commandments. Teachers need not provide religious instruction about them. The displays are simply present.

Tuesday’s consolidated oral argument ran over an hour and forty minutes and ranged across the challengers’ claims while repeatedly returning to a central question: whether the Fifth Circuit would consistently apply the Supreme Court’s direction in Kennedy v. Bremerton School District or retreat to discredited Lemon-era reasoning.

Judge Kyle Duncan set the tone early, making clear the court understood that Lemon no longer guides Establishment Clause analysis. This included the purpose prong that formed the basis for Stone v. Graham, the 1980 decision striking down Kentucky’s Ten Commandments display law. When ACLU counsel argued the Louisiana and Texas laws were unconstitutional because they attempt to “advance religion,” Duncan noted this relied on Lemon’s abandoned second prong. The exchange revealed the challengers’ fundamental difficulty: Their constitutional theory depends on a precedent the Supreme Court has expressly rejected.

Judge Edith Jones pressed the attack when addressing claims that the laws impose a Protestant version of the Commandments. She cited writings by the late Justice Ruth Bader Ginsburg acknowledging the Ten Commandments’ significance in American law and asked ACLU counsel whether Justice Ginsburg had limited her observation to a Torah version. The question exposed the weakness of treating different faith traditions’ versions of the same foundational text as constitutionally distinct. Jones, Duncan, and Judge James Ho also pushed back against counsel’s suggestion that the religious source of the Ten Commandments somehow distinguished them from the Declaration of Independence, Martin Luther King Jr.’s Letter from Birmingham Jail, or recitation of the Pledge of Allegiance — all containing expressly religious language and existing in educational settings without constitutional problem.

Judge Priscilla Richman raised intriguing questions about how the Kennedy framework’s emphasis on history and tradition at the time of the founding is impacted by the incorporation doctrine, whereby the Bill of Rights was made applicable to the states decades after ratification. This technical but important point could shape how courts assess historical practices when evaluating state laws under the Establishment Clause.

Perhaps most revealing was the collapse of the challengers’ coercion argument. The ACLU counsel attempted to distinguish his clients from mere “offended observers” by arguing that the “commanding” nature of the Ten Commandments renders even passive display coercive. The ACLU’s invocation of Mahmoud v. Taylor proved equally unavailing. In that case, the Supreme Court found that Montgomery County schools violated parents’ free exercise rights by requiring elementary students to receive instruction using ideologically charged materials at odds with traditional religious belief. The ACLU counsel tried to distinguish Mahmoud by claiming it didn’t involve “scripture” — but this distinction highlighted rather than resolved the problem. Mahmoud involved actual coercion: mandatory instruction that families could not opt out of. The Ten Commandments displays involve no such compulsion.

When pressed on the traditional hallmarks of an Establishment Clause violation, the challengers could point to none present in these displays. No coercion. No preference for one faith over another. No government funding of religious instruction. Just passive acknowledgment of a historical text’s influence on American law and culture.

When this issue reaches the Supreme Court, as it almost certainly will, the Court will benefit from the appellate analysis developed in these proceedings. The Fifth Circuit’s eventual ruling should provide essential guidance on how to reconcile historical practice with modern Establishment Clause doctrine.

The Court’s recent decision in Kennedy emphasized that the Establishment Clause must be interpreted according to historical practices and understandings rather than through the ahistorical test created in Lemon and its progeny, such as Stone.

The challengers cannot identify any actual coercion or establishment resulting from these displays. Students of all faiths and none remain free to believe as they choose. No preference exists for adherents of one faith over another. What exists is merely acknowledgment that the Ten Commandments influenced American legal development and civic values — an indisputable historical fact.

As I've written previously in National Review, faith is not an intruder in American public life; it’s part of our civic DNA. The Founding generation never envisioned scrubbing religious influence from public life.

The Constitution protects religious liberty; it does not mandate historical amnesia. States seeking to recognize the role of the Ten Commandments in shaping American law and culture act within constitutional bounds when they require passive classroom displays of a nonsectarian version. The Fifth Circuit should uphold these laws, providing a clear roadmap for the Supreme Court to do likewise. Striking down these measured acknowledgments of our legal heritage would set a troubling precedent, one that mistakes neutrality toward religion for hostility toward it. The oral arguments this week suggest the Fifth Circuit understands what’s at stake.