The Supreme Court Must Clarify the Establishment Clause Law Now

The 2022 US Supreme Court case Kennedy v. Bremerton School District took an important step to help local governments and lower courts better understand the law of the Establishment Clause, which had long been a confusing mess. However, it set our nation on a new adventure with very little guidance other than a woefully undertheorized opinion.

Trying to clarify the law was welcome, but the justices now need to take the next step and offer a map for the way forward. We see the confusion Kennedy has caused with a decision late last month from the US Court of Appeals for the Fifth Circuit upholding Texas’ law mandating the posting of the Ten Commandments in public school classrooms.

With vague language, the Kennedy decision seemed to declare dead a key and problematic precedent that controlled how courts should interpret the Establishment Clause. Then, in confusing, underanalyzed, and contradictory passages, it declared that courts should interpret the Establishment Clause using a historical test—some form of originalism.

It didn’t clarify precisely which originalist methodology lower courts should use, and there are many from which to choose. When the court issued Kennedy, I predicted it would take another two or three decades for courts to figure out what the Establishment Clause forbids.

With the Fifth Circuit’s ruling, the justices have an opportunity to offer clarity much sooner. I hope they take it.

Local government reactions to Kennedy were predictable, as was the fallout. Like a band of youthful adventurers who embark on their journey without a map, state actors are attempting to navigate new terrain with gusto but little guidance.

They have tried all sorts of new laws, from posting the Ten Commandments in public schools, to allowing chaplains in public schools, to establishing prayer times, to updating curriculum to allow more discussion of religion. Unsurprisingly, they are running into obstacles, primarily in the form of challenges from citizens who believe the Establishment Clause is being ignored.

Some, but not all, of these laws likely violate the Establishment Clause. The courts dealing with those challenges are predictably proceeding in unpredictable ways given how little direction they received in Kennedy.

I am sympathetic to the motivations underlying many of these government actors; I regularly and consistently advocate for the protection of the free exercise of religion. These lawmakers are worried that America’s public schools, in the name of neutrality, have become hostile to almost any religious expression. They fear that under threat of punishment from the government, children must spend the bulk of their waking hours in institutions in which religion and the divine and the transcendent seem absent.

In those spiritually empty halls, children receive constant instruction about how to navigate the difficulties of this life without any mention of faith or of religion—or of their role in the formation, character, and flourishing of our society. These are legitimate concerns that need addressing.

But coercing the sacred religious text of any one religion on students isn’t the solution. And the Fifth Circuit’s upholding of the statutes is as problematic as the laws themselves; it only meagerly analyzes the coercion concern.

For decades, including in Kennedy, courts have considered coercion to exist if government forces religious messages on underage (and thus impressionable) students who are a captive audience and who have no reasonable alternative to avoid them. All those elements are present in the Ten Commandments laws. History supports them, but the Fifth Circuit ignored them nearly entirely.

The Fifth Circuit opinion is also already facing headwinds from originalist scholars who have reached different conclusions regarding what the Establishment Clause means. This isn’t surprising given Kennedy’s imprecise language. Very serious scholars sympathetic to originalist methodology disagree with the Fifth Circuit’s conclusion, and the justices need to pay close attention to what they are saying.

I am not one to be overly critical of the Supreme Court. Establishment Clause law has never been clear or obvious. Justices for nearly eight decades have struggled to understand its boundaries. But because Kennedy has propelled the country in this direction, the justices need to embrace their responsibility to offer more.

The case is Nathan v. Alamo Heights Indep. Sch. Dist., 5th Cir. App., 25-50695, decided 4/21/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Steven T. Collis is a law professor at the University of Texas at Austin and is the founding faculty director of Texas’ Bech-Loughlin First Amendment Center.

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