Controversy continues: SCOTUS, the Ten Commandments, and public schools

A controversy that reached the United States Supreme Court twice and may be returning for a third round concerns state-mandated public postings of the Ten Commandments. In the most recent litigation involving the Commandments, the Fifth Circuit conducted arguments on January 20, 2026, in a consolidated appeal of cases from Louisiana and Texas over whether states could require their postings in public schools.

This column briefly reviews the history of disputes over posting of the Ten Commandments in schools and public places as a prelude to highlighting the cases before the Fifth Circuit. It then reflects on whether states should be able to require public exhibits of the Commandments in public schools and places.

The Ten Commandments and Supreme Court Cases

The Supreme Court first considered the posting of the Ten Commandments in public schools in Stone v. Graham, a 1980 dispute from Kentucky. The Justices rejected as inadequate a small notation on posters describing the Commandments as the “fundamental legal code of Western Civilization and the Common Law of the United States”.

Consequently, the Court struck down the statute mandating the displays for violating the First Amendment because the “pre-eminent purpose for posting the Ten Commandments on schoolroom walls [wa]s plainly religious in nature.”

A quarter of a century later, in 2005, the Supreme Court reached mixed results over non-school displays of the Ten Commandments. The first case arose in Kentucky, where officials posted the Ten Commandments on courthouse walls along with the Magna Carta, Declaration of Independence, and a Biblical citation. In McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, the Justices invalidated the display for violating the Establishment Clause largely because, as in Graham, it lacked a secular purpose.

Conversely, in Van Orden v. Perry, the Justices allowed an exhibit including the Ten Commandments to remain on the grounds of Texas’ state capitol. The Justices permitted this long-standing display, where the first monument was erected in 1891, to remain because it was more passive than the one in Kentucky, as the Commandments were one of seventeen monuments and twenty-one historical markers spread out over twenty-two acres.

Recent litigation

After Louisiana became the first state to require posting the Ten Commandments in public schools in 2024, Texas followed suit in 2025.

Simultaneously, while a federal trial court judge in Arkansas twice enjoined a similar law in 2025, it is not part of this suit because it is in the Eighth, rather than Fifth, Circuit, home to Louisiana and Texas. In all these cases, the laws focused on the religious nature of the Commandments.

As noted, an en banc panel of the Fifth Circuit (meaning all seventeen of its active members participated) heard the Louisiana and Texas cases. In Roake v. Brumley the Fifth Circuit initially affirmed a preliminary injunction against Louisiana’s statute because it was “plainly unconstitutional.”

On October 6, 2025, however, an en banc panel vacated that decision, ordering a hearing before the full court. After a federal trial court in Texas enjoined its law in Rabbi Nathan v. Alamo Heights Independent School District, the Fifth Circuit consolidated it with Roake, even though it had yet been reviewed by a three-judge panel, because of similarities between the cases.

Although “[t]he Fifth Circuit is generally considered the most conservative appellate court in the nation,” and supporters of the Ten Commandments expressed their optimism after the oral arguments, the judges did not signal how they might rule. A potential game changer emerged because the panel discussed the “historical practices and understandings’” test the Supreme Court enunciated in 2022’s Kennedy v. Bremerton School District wherein it decided in favor of a high school football coach who prayed on the field at the end of games.

Reflection and analysis

There can be little doubt, as supporters of the disputed laws maintain, that the Ten Commandments occupy a special place and role in American life and history.

Still, questions arise over the place of the Commandments in public life in light of the United States’ growing religious diversity. Even though the decline in the percentages of Americans identifying as Christian appears to have leveled off after dropping precipitously from 78% in 2007 to 63% with 29% reporting they are not religiously affiliated or “nones,” according to the most recent 2023-24 Pew Research Religious Landscape Report, it remains to be seen whether this trend continues. It is also unclear how much influence Christianity will continue to have in public life.

Ongoing questions persist over the constitutionality of state-mandated postings of the Commandments in public schools. These concerns arise in light if the voluminous Supreme Court litigation interpreting the First Amendment Religion Clauses, under which “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Because the losing party at the Fifth Circuit will probably appeal to an increasingly religion-friendly Supreme Court, it is worth reflecting on how this recent “historical practices and understandings” test might apply.

Recall that because the American colonies were created in part on an imperfect notion of religious liberty that was often limited to members of the majority faiths in their communities, the Founders drafted the First Amendment to safeguard our “first freedom.” Accordingly, as important as the Ten Commandments have been in shaping American society, it is unclear what is to be gained by their mandatory posting in public schools and how, despite the presence of the “historical practices and understandings” test, this would not be interpreted as establishing a state religion.

The Supreme Court’s remark in Stone v. Graham remains true today. Commenting that they were not integrated into school curricula, the Justices reasoned that “[i]f the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”

If the Fifth Circuit, and eventually Supreme Court, consider the “historical practices and understandings” test, it is not certain they would uphold the posting of the Commandments because there is no judicial, or legislative, history permitting such displays. Further, because courts “distinguish” seemingly factually similar cases, insofar as the dispute in Kennedy giving rise to the “historical practices and understandings” test involved significantly different circumstances, it may be inapplicable when reviewing the status of the Ten Commandments.

Kennedy can be distinguished from the cases over the Ten Commandments because it involved a coach who knelt on the field in silent prayer independently rather than exposing children involuntarily to religious principles possibly inconsistent with their own beliefs. Further, in the dispute from Arkansas mentioned earlier not at issue here, a federal trial court judge enjoined the enforcement of a law mandating the posting of the Commandments in public schools because it would have forced students “to observe, meditate on, venerate, and follow the State’s favored religious text, and to suppress expression of their own religious beliefs and backgrounds at school.” The judge explicitly added “there is no tradition of permanently displaying the Ten Commandments in public-school classrooms,” statements it will be difficult for other jurists to ignore.

In sum, if religious freedom means anything, then just as Americans are free to practice their faiths, children should be free from state-sponsored exposure to beliefs possibly inconsistent with their own. Protecting respect for different beliefs is crucial because the Supreme Court declared that the government must demonstrate “neutrality between religion and religion, and between religion and nonreligion.”

The challenge facing the courts is to find the proper balance by not transmitting the message that neutrality means religion lacks any place in American life as they protect our “first freedom.” Controversy is likely to continue, though, where, as in the current cases, supporters emphasize the faith-based nature of the Ten Commandments rather than their foundational role in American culture that resulted in the enshrinement of our religious freedom.

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