Fifth Circuit Continues Running The Table, Says Ten Commandments Law In Texas Is Constitutional

Free Speech

from the playing-favorites-with-religions dept

In June 2025, the Fifth Circuit Appeals Court upheld what would seem to have been an extremely obvious conclusion reached by the federal court handling the case: yes, it definitely violates the Constitution to mandate the posting of a religious text in every classroom in Louisiana. This wasn’t about displaying an assortment of “foundational texts” as its defenders (disingenuously) claimed: It was about pushing their preferred religion on students by any means possible.

Last June, the Fifth Circuit exposed the hypocrisy of the mandate while upholding the lower court’s injunction blocking its enactment:

It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] state and national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font. La. R.S. § 17:2124(A)(9). When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext.

If only that had been the end of the story. Presumably, enough Fifth Circuit judges preferred to reach a different conclusion that the appellate court decided to take another look at it using its full slate of judges. Since this is the Fifth Circuit we’re talking about, you already know how that turned out.

This time, the majority pretended it was simply impossible to tell if this Louisiana law actually violated the Constitution. The only way to be sure was to let the state enact it first and allow the courts to deal with any rights violations after they’ve occurred. The injunction was lifted, with the majority claiming Supreme Court precedent (that hasn’t actually been overturned by the Supreme Court) is no longer valid when it comes to discussing possible Establishment Clause violations.

That same argument — that the three-prong test created by the Supreme Court in 1971’s Lemon v. Kurtzman, which dealt with another set of church/state separation issues. This is the test:

• The “Purpose Prong”: The statute must have a secular legislative purpose.
• The “Effect Prong”: The principal or primary effect of the statute must neither advance nor inhibit religion.
• The “Entanglement Prong”: The statute must not result in an “excessive government entanglement” with religion.

While a handful of judges (you can guess which ones) have opined that the “Lemon test” is dead, having been “abrogated” by more recent decisions, the Supreme Court has never issued a ruling overturning it. In fact, elements of the test were still being applied more than 30 years later.

Nonetheless, the Fifth Circuit — as it did earlier this year during its en banc review of the Louisiana law — says Lemon is dead [PDF] and, therefore, pretty much any law requiring the posting of the Ten Commandments in classrooms doesn’t violate the Constitution.

We conclude the Texas law does not violate either the Establishment Clause or the Free Exercise Clause. Here is a summary of our reasons.

First, the Establishment Clause. Plaintiffs primarily claim we are bound by Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which invalidated a similar Kentucky law decades ago. We disagree. Stone applied an analysis—the “Lemon test”—which confounded courts for decades. See Lemon v. Kurtzman, 403 U.S. 602 (1971). Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago. See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022) (recognizing the Court has “abandoned Lemon”). With Lemon extracted, there is nothing left of Stone.

After deciding Lemon (and Stone) no longer applies, the majority moves on to say even if it did, there would be no constitutional violation because:

No child is made to recite the Commandments, believe them, or affirm their divine origin…

While it is true that the law makes no demands of teachers or students to do anything more than be in the same room as a Ten Commandments poster that “must be visible” to all students from up to 16 feet away, it’s quite obvious that this law is crafted to sneak a bit of the state’s preferred religion (at least in terms of those writing, supporting, and defending this law) past the protections of the Constitution.

It’s obvious from the statements they made while pushing this bill through the legislature. And it’s just as obvious now that the law has been given a free pass by the Fifth Circuit Appeals Court.

Texas Attorney General Ken Paxton, a Republican, called the ruling “a major victory for Texas and our moral values.”

“The Ten Commandments have had a profound impact on our nation, and it’s important that students learn from them every single day,” he said.

Pretty bold to use the royal “our” to mandate a specific set of moral values be posted prominently in taxpayer-funded public schools. It’s even bolder when it directly contradicts the desires of prominent members of this particular religious community — something that was pointed out by the dissenting judges in Fifth Circuit’s ruling on the Louisiana Ten Commandments law:

Indeed, every faith-based organization before us—on behalf of thousands of members—and every clergy and devout plaintiff agree that Louisiana must not pick and post specific scripture that the state commands will confront children in state classrooms. All religious voices submitted to us, barring one individual, oppose Louisiana’s attempt to select, inculcate, and enforce this version of gospel text in compulsory public education.

The people with power are pushing religion on kids against the wishes of the clergy and “devout plaintiffs.”

There’s a dissent attached to this ruling as well. This one tackles the Fifth Circuit majority’s decision to rely twice on its presumption that Lemon is dead law to hand Bible-thumping legislators wins in two states:

In Van Orden, despite applying a historical approach instead of Lemon, the plurality cited Stone as a “limit[] to the display of religious messages or symbols” and “an example” of the Court’s “vigilan[ce] in monitoring compliance with the Establishment Clause in . . . schools.” “The placement of the Ten Commandments monument on the Texas State Capitol grounds,” Van Orden explained, is “a far more passive use of those texts than was the case in Stone.” […] This is because “[t]he display [was] not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” Id. at 703 (Breyer, J., concurring in the judgment) (citing Lee v. Weisman, 505 U.S. 577, 592 (1992); Stone, 449 U.S. 39). And, unlike in Van Orden, “the text” of the Ten Commandments in Stone “confronted elementary school students every day.”

Van Orden recognized Stone’s viability, notwithstanding Lemon, given the special “concerns that arise in the context of public elementary and secondary schools.”

The Fifth Circuit majority — like the defendants whose unconstitutional law it has allowed to be enacted — cherry picks from post-Lemon Supreme Court jurisprudence to arrive at the conclusion it wants, rather than one the Constitution (and actual Supreme Court precedent) dictates. With two of the three states in the circuit already have been given a green light to mix church and state, it’s up to Mississippi to get this bill signed by the governor so the Fifth can complete its three-state sweep of the Establishment Clause.

Filed Under: 10 commandments, 1st amendment, 5th circuit, establishment clause