Fifth Circuit OKs Texas Ten Commandments Classroom Law (1)

Texas can enforce a law requiring the Ten Commandments be displayed in public school classrooms, a divided Fifth Circuit ruled.

The full US appeals court on Tuesday sided with the state, after ruling in February that it was too early to weigh challenges to a similar Louisiana measure.

Judge Stuart Kyle Duncan, a Donald Trump appointee, found in a majority opinion joined by eight other Republican appointees that the law doesn’t violate the First Amendment’s Establishment or Free Exercise Clauses. Eight judges dissented.

Duncan wrote for the majority that the Supreme Court’s precedent in Stone v Graham, which rejected a similar Kentucky measure, was no longer good law, because the test for Establishment Claims cases that underpinned that decision has been discarded by the justices. That analysis was known as the “Lemon test,” as it was set in the 1971 case Lemon v. Kurtzman.

He said the new test is whether the new law resembles “establishment of religion” as it was understood at the time of the nation’s founding. And the Texas law “looks nothing like a historical religious establishment,” Duncan said.

“It puts a poster on a classroom wall,” he wrote of the Texas requirement. “Yes, Plaintiffs have sincere religious disagreements with its content. But that does not transform the poster into a summons to prayer.”

And he said the law doesn’t violate the Free Exercise Clause because the “core” of those violations, a substantial burden on religious belief or practice, isn’t present in this case.

Multiple Dissents

The majority opinion drew four different dissents. Judge Irma Ramirez, a Joe Biden appointee who had ruled against the similar Louisiana law, said that only the Supreme Court could overrule its precedent, and that it hadn’t directly rejected its holding in Stone v. Graham.

She, as well as Judge Stephen Higginson in a separate dissent, said the Supreme Court has long recognized that there are “heightened concerns” in public schools when it comes to coercion tied to religious beliefs.

“Because legislation requiring the permanent fixture of religious rules in public-school classrooms, with no ‘educational function,’ violates these most basic First Amendment principles, I respectfully dissent,” Ramirez wrote.

Higginson, a Barack Obama appointee, said the ruling undermines Texas parents’ ability to determine how and what their children are taught about religion.

“Texas’s defiance of the First Amendment displaces parents. Parents, not politicians, have the right to lead their children’s religious development,” Higginson said. “Yet the majority now gives Texas that choice and command.”

Judge Leslie Southwick, a George W. Bush appointee, said he couldn’t sign onto either Ramirez or Higginson’s dissents. He said the prior test for Establishment Clause cases “was a fusion of First Amendment caselaw.”

“In my view, the test was disassembled, and one part discarded — but other parts of what had been fused remain usable,” he wrote.

And Judge Catharina Haynes, another George W. Bush appointee, wrote in a one paragraph dissent that the Supreme Court’s holding in Stone makes the Texas law “an unconstitutional statute.”

Standing Question

Three judges who backed most of the majority opinion didn’t join Duncan’s finding that the challengers to the law—parents of Texas school children—had standing to sue over the law.

Judge James Ho wrote that the circuit could vacate a lower court’s injunction against the law without deciding on standing.

Judge Andrew Oldham, joined by Judge Don Willett, said while he agreed that the law doesn’t violate the Constitution, he wasn’t sure that the plaintiffs had standing. “Their claims hinge on the mistaken premise that individuals can sue because they are offended—a proposition that is wrong as a matter of Constitutional structure and Supreme Court precedent,” Oldham said.

A three-judge panel earlier found the Louisiana law was unconstitutional, as it violated the First Amendment’s Establishment Clause. But the majority of the Fifth Circuit’s 17 active judges—which includes six Trump appointees—voted in favor of rehearing the case, and heard arguments in that case and over the Texas law in January.

The case is Nathan v. Alamo Heights Indep. Sch. Dist., 5th Cir. en banc, No. 25-50695.