Texas’s law requiring public schools to have a copy of the Ten Commandments posted in classrooms does not violate the Constitution, a federal appeals court ruled, plowing new ground in religious law.
The 5th U.S. Circuit Court of Appeals was deeply divided on the case, ruling 9-8.
The majority said the law does not look anything like the sort of establishment of religion the founders contemplated when they wrote the First Amendment barring such entanglements.
Nor, the court said, does the law upend anyone’s free exercise of their own religion. Merely being exposed to religious content is not enough to run afoul of the Constitution, Judge Stuart Kyle Duncan said in the key opinion for the court.
“Because the Texas law has none of the elements of a founding-era establishment of religion, the district court erred in ruling that the law violates the Establishment Clause,” he wrote.
The ruling came from the full circuit and saw dissents from five judges appointed by Democratic presidents and three appointed by a Republican, George W. Bush.
Judge Irma Carrillo Ramirez, a Biden pick who penned the chief dissent, said the Supreme Court in 1980 struck down a law similar to Texas’ rule, with the Stone case out of Kentucky. She said the court should have been bound by that.
“No Supreme Court decision has overturned Stone,” she wrote.
But Judge Duncan, a Trump appointee, said the underlying approach to religious cases has changed in the 46 years since Stone.
Chief among them is the end of the so-called “Lemon” test, which grew out of a 1971 high court ruling and was at the root of the decision invalidating Kentucky’s law. Judge Duncan said the Lemon test, which required a complicated look at motives and outcomes, has been replaced with a simpler inquiry about whether a law would have seemed to the founders like an intrusion or coercion.
“S.B. 10 looks nothing like a historical religious establishment,” he wrote. “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. It levies no taxes to support any clergy. It does not co-opt churches to perform civic functions.”
Texas adopted its law last year.
It requires public schools to display the commandments — the law that Christianity and Judaism teach was delivered by God to Moses — in a prominent place in each classroom.
They can either accept donations or use taxpayer funds.
Judge Leslie Southwick, one of the Bush appointees who dissented, acknowledged the difficult landscape of religious law at this point, particularly after a 2022 decision that ruled in favor of a high school football coach who had lost his job after leading a prayer at midfield after games.
The judge said one thing remains clear, though: public prayer sponsored by a school is unconstitutional. And he said same analysis would cover the Ten Commandments.
“When Texas places a copy of the Ten Commandments in prime position in every public classroom across the state, it edges precariously close to creating a religious orthodoxy in the classroom,” he wrote.
The American Civil Liberties Union said it would appeal the ruling to the Supreme Court and denounced the decision as a violation of “fundamental First Amendment principles.”
