Full Fifth Circuit Wary of Ten Commandments Laws’ Challengers

Challengers to a pair of laws requiring that the Ten Commandments be displayed in public schools got a chilly reception before the US Court of Appeals for the Fifth Circuit’s full slate of active judges.

The en banc court on Tuesday heard arguments on Louisiana and Texas laws that require the Ten Commandments be shown in public classrooms. Conservative members sounded doubtful that parents and minors opposing the measures met their burden in proving the laws unconstitutional.

A three-judge panel in June blocked the Louisiana law, leaning on the US Supreme Court’s 1980 ruling in Stone v. Graham, which struck down a similar Ten Commandments requirement in Kentucky. The full circuit took up Texas’s law without a panel first considering the measure.

Several judges questioned at arguments whether Stone remained good law, as the Supreme Court in 2022 reworked the test for Establishment Clause claims that underpinned the 1980 ruling.

Jonathan Youngwood, representing the laws’ opponents, said that until the justices explicitly overturn Stone it still applies.

Judge James Ho questioned why Texas’s requirement that students recite the Pledge of Allegiance could stand but the display of Ten Commandments couldn’t. Youngwood, a partner with Simpson Thacher & Bartlett, said there’s a difference between a “passing reference” to God and a Bible verse being displayed in classrooms.

Youngwood said the requirement that the Ten Commandments be shown in all classrooms, with no way to avoid it, is what makes it coercive. “There’s nothing passive about these posters,” he said.

Judge Stuart Kyle Duncan also pressed Youngwood on what historical examples exist to show that the display of the Ten Commandments in public schools was like the establishment of religion, as the Supreme Court’s new test for Establishment Clause cases asks courts to weigh history as part of the analysis.

Youngwood’s answers, including that he can’t present a historical analogy of something existing in public schools from a time when public schools didn’t exist, didn’t sit well with Duncan. “It’s your burden to do that,” Duncan said.

Louisiana Solicitor General Ben Aguiñaga faced questions from Judge Stephen Higginson about the version of the Ten Commandments the state included in its law. Higginson noted throughout the arguments that many briefs filed by religious groups opposed the language, saying it was Protestant and that the teaching of religious beliefs shouldn’t be left to schools.

Aguiñaga said that “all stakeholders weighed in” on the language, and that legally the text itself doesn’t matter. He also said the case was brought too early against the state as the displays haven’t yet gone up in schools.

Texas Solicitor General Will Peterson said the state’s law simply requires that the Ten Commandments “be on the wall of the classroom,” and doesn’t mandate that students learn about or believe them.

The cases are Roake v. Brumley, 5th Cir. en banc, No. 24-30706 and Nathan v. Alamo Heights Indep. Sch. Dist., 5th Cir. en banc, No. 25-50695, oral argument 1/20/26.