In a 9-8 ruling, the en banc Fifth Circuit held that Texas Senate Bill 10 does not violate either the establishment or free exercise clauses, contrary to findings of U.S. District Judge Fred Biery in a ruling last August.
"S.B. 10 requires no religious exercise or observance," the majority said. "Students are neither catechized on the Commandments nor taught to adopt them. Nor are teachers commanded to proselytize students who ask about the displays or contradict students who disagree with them."
The Texas families challenging the law had pointed to the U.S. Supreme Court's 1980 decision in Stone v. Graham
. In that case, the justices struck down a Kentucky law mandating classroom displays of the Ten Commandments, holding that such displays would unconstitutionally "induce ... schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments."But the majority said that Stone applied the so-called Lemon test, which held that the establishment clause prohibits the government from doing anything that has the appearance of endorsing religion.
"Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago," the majority said. "With Lemon extracted, there is nothing left of Stone."
Nowadays, according to the majority, courts ask a question "rooted in the past: does the law at issue resemble a founding-era religious establishment?" Here, S.B. 10 looks nothing like a historical religious establishment, the majority said.
S.B. 10 merely "puts a poster on a classroom wall," it said.
"Yes, plaintiffs have sincere religious disagreements with its content," the majority said. "But that does not transform the poster into a summons to prayer."
U.S. Circuit Judge Stuart Kyle Duncan penned the majority opinion and was joined by U.S. Circuit Judges Jennifer Walker Elrod, Edith H. Jones, Jerry E. Smith, Don R. Willett, James C. Ho, Kurt D. Engelhardt, Andrew S. Oldham and Cory T. Wilson.
In the first of several dissents, U.S. Circuit Judge Irma Carrillo Ramirez said the Supreme Court "long ago held that a statute nearly identical to S.B. 10 violates the establishment clause." The justices have also long emphasized "heightened concerns" with protecting students from "subtle coercive pressure" in public schools, she said. And the high court held that the free exercise clause protects against classroom requirements that threaten to "impose upon children a set of values and beliefs that are hostile to their parents' religious beliefs" and pressure kids to conform, according to the dissent.
"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," Judge Carrillo Ramirez said.
She was joined by U.S. Circuit Judges Carl E. Stewart, Priscilla Richman, Catharina Haynes, James E. Graves Jr., Stephen A. Higginson and Dana M. Douglas.
The organizations representing the families — which include the American Civil Liberties Union, Freedom From Religion Foundation Inc. and Americans United for Separation of Church and State — said in a statement Tuesday that they were "extremely disappointed" in the decision.
"The court's ruling goes against fundamental First Amendment principles and binding U.S. Supreme Court authority," they said. "The First Amendment safeguards the separation of church and state, and the freedom of families to choose how, when and if to provide their children with religious instruction."
The ruling "tramples those rights," the organizations said.
"We anticipate asking the Supreme Court to reverse this decision and uphold the religious freedom rights of children and parents," they said.
Meanwhile, Texas Attorney General Ken Paxton called it a "major victory for Texas and our moral values."
"My office was proud to defend S.B. 10 and successfully ensure that the Ten Commandments will be displayed in classrooms across Texas," he said in a separate statement. "The Ten Commandments have had a profound impact on our nation, and it's important that students learn from them every single day."
Gov. Greg Abbott signed S.B. 10 into law last June. The measure requires a Protestant version of the Ten Commandments to be displayed in every public school classroom in the state. It also specifies that posters with the scriptures are clearly visible to children with average vision from anywhere in the classroom.
The families sued several school districts the following month, claiming that the law violates the First Amendment's establishment and free exercise clauses.
Judge Biery temporarily blocked the law last August, finding that the displays were likely to coerce children into observing Texas' "favored" religion and interfere with parents' rights to direct their children's religious education. He concluded his order with a tongue-and-cheek, "Amen."
But the Fifth Circuit majority held Tuesday that the law has "none of the elements of a founding-era establishment of religion," and Judge Biery erred in ruling otherwise.
"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," the majority said. "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."
The "coercion" part of religious establishments was government pressure to engage in religious worship, the majority said. But S.B. 10 is far from that, it said.
The families had also pointed to the Supreme Court's decision in Mahmoud v. Taylor
, which found that the Montgomery County School District in Maryland violated the First Amendment by revoking parents' ability to exclude their children from reading books with LGBTQ+ themes that purportedly conflict with their religious beliefs."S.B. 10 bears no resemblance to the oppressive curriculum in Mahmoud," the majority said. "As noted, S.B. 10 authorizes no religious instruction and gives teachers no license to contradict children's religious beliefs (or their parents'). No child is made to recite the Commandments, believe them or affirm their divine origin."
The majority said it disagreed with the families that "merely exposing children to religious language is enough to make the displays engines of coercive indoctrination."
"The curriculum in Mahmoud went far beyond books sitting silently on classroom shelves," it said.
But Judge Carrillo Ramirez wrote in her dissent that the establishment clause was intended to erect a "wall of separation between church and state." And the high court's decision in Stone indeed remains applicable here, she said.
"The Kentucky statute in Stone and S.B. 10 are substantively identical," the judge wrote. "Both require that the Ten Commandments be permanently displayed in every public elementary and secondary school classroom in the state using comparable minimum size requirements, and that the displays be financed by private donations."
The fact that S.B. 10 does not require any accompanying notation about the display's purpose is not significant to the analysis under Stone, she said. "It held the Kentucky statute violated the establishment clause despite the notation — not because of it," Judge Carrillo Ramirez said.
She added, "Stone is on all fours with this case, and under Stone, S.B. 10 violates the establishment clause."
Judge Haynes wrote separately to say she agrees with Judge Carrillo Ramirez that Stone still applies.
"Because that case clearly makes S.B. 10 an unconstitutional statute, I simply stop there," she said. "We must follow the Supreme Court and that is what the opinion Stone shows."
Judge Higginson also wrote a dissent, noting that the "framers intended for disestablishment of religion, above all to prevent large religious sects from using political power to impose their religion on others."
"Yet Texas, like Louisiana, seeks to do just that, legislating that specific, politically chosen scripture be installed in every public-school classroom," Judge Higginson said.
"Our court accommodates their unconstitutional request, supplanting decades of Supreme Court precedent merely because of a single decision the majority deems outdated," the judge said. "In doing so, the majority defies foundational First Amendment concepts, ignores the harms students will face, and usurps parents' rights to determine the religious beliefs they wish to instill in their own children."
Judge Higginson said that, for many parents, public school is the only choice.
"Until today, this reality never meant that parents also have no choice but to accept government-chosen religious scripture that will surround their children," he said.
Judges Richman, Graves, Douglas and Carrillo Ramirez joined that opinion as well.
U.S. Circuit Judge Leslie H. Southwick also wrote a dissenting opinion, saying he cannot join the other dissents in full. According to Judge Southwick, the principal problem with the majority opinion is its finding that the Lemon test is no more.
"The Lemon test was a fusion of First Amendment caselaw, binding together the holdings of several lines of cases to create a definitive test for establishment clause cases," the judge said. "In my view, the test was disassembled, and one part discarded — but other parts of what had been fused remain usable."
Judge Southwick said he concludes that the Ten Commandments law violates the establishment clause under "still-binding Supreme Court precedent."
"The Supreme Court may change the law further, but it has not done so yet," he said. "This inferior court judge concludes we are doing so. That is not our role."
"What is not part of my dissent is a rejection of the importance of searching for faith," Judge Southwick added. "Religion, though, is a matter of the mind and the heart. Faith cannot flourish when it is forced."
Judges Richman, Graves, Higginson, Douglas and Carrillo Ramirez joined his opinion.
Judge Oldham, joined by Judge Willett, wrote a concurrence expressing his "reservations about [the case's] justiciability."
"It is not obvious to me that these plaintiffs have standing," the judge wrote. "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."
Judge Oldham continued, "What's more, the plaintiffs chose to bring a facial, pre-enforcement challenge against Texas's law. That's the hardest challenge to make out. And plaintiffs fell far short of carrying their burden here."
Judge Ho also wrote a concurrence, saying that the court can "vacate the preliminary injunction on the merits — and uphold the Ten Commandments displays in public schools under the Constitution — without addressing plaintiffs' theory of standing or requiring any factual context to affirm the displays."
The plaintiffs are represented by Daniel Mach of the American Civil Liberties Union Foundation, Adriana Piñon, Thomas Paul Buser-Clancy, Chloe Kempf and Sarah Corning of ACLU Foundation of Texas, V. Noah Gimbel, Janet A. Gochman, Avia Gridi, Griselda Cabrera and Jonathan K. Youngwood of Simpson Thacher & Bartlett LLP, Patrick C. Elliott and Samuel Troxell Grover of Freedom From Religion Foundation Inc. and Alexander Joseph Luchenitser, and Amy Tai of Americans United for Separation of Church and State.
The school districts are represented by Brent Webster, William F. Cole, Daniel M. Ortner, Garrett C. Gray and Christopher J. Pavlinec of the state attorney general's office.
The case is Mara Nathan et al. v. Alamo Heights Independent School District et al., case number 25-50695, in the U.S. Court of Appeals for the Fifth Circuit.
–Additional reporting by Marco Poggio. Editing by Michael Watanabe.