Color me surprised. When Texas and Louisiana passed laws that required public schools to display the Decalogue, most expected courts to fall back to the Warren Court era and slap a few wrists. Instead, an en banc ruling from the Fifth Circuit injected some common sense into the question of messaging and formation in public schools.
The ruling yesterday cuts Louisiana loose for the moment over questions of ripeness in that legal challenge to a similar law. For now, however, Texas can enforce its requirement for public schools to display the Ten Commandments, and that precedent will apply to all states within the Fifth Circuit’s jurisdiction – unless and until the Supreme Court rules otherwise:
A U.S. appeals court has ruled that Texas can require schools to display a copy of the Ten Commandments, finding the legislation that mandates the Decalogue in classrooms does not require students to believe in the religious teachings.
The Tuesday ruling from the Fifth Circuit Court of Appeals is a victory for Texas conservatives and Christians who have fought to further include religion in public spaces. The decision is expected to be appealed to the Supreme Court.
“This is a major victory for Texas and our moral values,” the state’s Republican attorney general, Ken Paxton, said in a statement.
“The Ten Commandments have had a profound impact on our nation, and it’s important that students learn from them every single day.”
The jurisprudence of the last six decades would have normally argued against this statute. Any display of religious material would have violated both the Establishment and Free Exercise clauses of the US Constitution merely by their presence in government-run environments. The plaintiffs bringing this case made those same arguments that had succeeded in that period.
This time, however, the Fifth Circuit didn’t buy it. And if the plaintiffs think that they may get a more sympathetic hearing in the inevitable appeal to the Supreme Court, they may be in for a rude surprise. Four years ago, the top court dismissed the notorious “Lemon test,” a precedent that put the Establishment Clause at a higher priority than free speech and free religious expression. The ruling in this case notes that, and then goes on to dismantle the ahistorical reading of the Establishment Clause at some length:
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.
In place of Lemon, courts now ask a question rooted in the past: does the law at issue resemble a founding-era religious establishment? Answering that question requires delving into historical sources and scholarship.
At the time of the founding and the ratification of the Constitution, “establishment” meant forced compliance under penalty of law with a particular sect, not just the display or publication of tenets of generalized religion, the court points out. States enforced laws that required church attendance and controlled doctrine, punished heretics, and more. It excluded or forbade competing religions from the public square or from operating at all. It took many years for the states to comply with the Establishment Clause and dismantle these state churches, in part because the states didn’t believe that the Bill of Rights applied to anything other than the federal government.
Displaying the Ten Commandments does none of that, the court ruled, especially since it doesn’t require anyone to believe in them:
Plaintiffs counter that, like historical establishments, S.B. 10 is “coercive” because it pressures children to honor the Ten Commandments. Not so. S.B. 10 requires no religious exercise or observance. 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.
Most importantly, the “coercion” characteristic of religious establishments was government pressure to engage in religious worship. That’s why establishments prescribed liturgies and punished those who skipped them. S.B. 10 is far from that. It puts a poster on a classroom wall. Yes, Plaintiffs have sincere religious disagreements with its content. But that does not transform the poster into a summons to prayer.
This argument also applies to the second argument against the statute as a violation of the Free Exercise clause. Without coercion, there is no violation. The plaintiffs try to use the recent Mahmoud v Taylor ruling in which the Supreme Court ended mandatory sex-education lessons in Maryland schools without opt-outs for religious objections, but coercion mattered there too;
In Mahmoud, a school district designed a compulsory curriculum to “disrupt” students’ beliefs about sexuality and gender. Id. at 528–29. Teachers were to inform students that their religious views on these topics were “hurtful, perhaps even hateful” and that their parents’ views were wrong. Id. at 553. No opt outs were permitted. Id. at 543. The Supreme Court ruled the school violated the parents’ right to direct their children’s religious upbringing. See id. at 529–30.
S.B. 10 bears no resemblance to the oppressive curriculum in Mahmoud. 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. …
To Plaintiffs, merely exposing children to religious language is enough to make the displays engines of coercive indoctrination. We disagree. The curriculum in Mahmoud went far beyond books sitting silently on classroom shelves. Those materials were deployed by teachers with lesson plans designed to subvert children’s religiously grounded views on marriage and gender. S.B. 10 authorizes nothing of the sort.
Common sense in a judicial ruling. What won’t they think of next?
The plaintiffs will undoubtedly appeal this ruling to the Supreme Court, and whether the justices grant cert will be a question worth watching. The 6-3 ruling in 2002’s Kennedy v Bremerton that ended the Lemon test related to private prayer within the public-school setting, not action by the school to publish religious material. That context may make a difference to one of the justices who went with the majority. It takes four justices to grant cert, and the liberal justices will absolutely want to have a debate over this statute and revisit the balancing test in these circumstances. For now, though, Texas schools will have to display the Ten Commandments, and hopefully Texas students will learn something from them.
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Of Church and State: A History of Prayer in the U.S. Government
“Congress shall make no law respecting an establishment of religion.” – The clause’s original meaning was specific: it prohibited Congress from designating an official national church, compelling participation, or funding a denomination through taxation
Since early 2025, the Trump administration has faced a series of legal challenges and public controversies over prayer and religious observance in federal agencies. Those opposed to worship in the White House, Pentagon, and Congress invoke the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion.”
The opposition often uses the phrase “separation of church and state.” However, that phrase appears nowhere in the Declaration of Independence, the Constitution, or the Federalist Papers. It derives from a private letter Thomas Jefferson wrote to the Danbury Baptist Association in 1802.
The clause’s original meaning was specific: it prohibited Congress from designating an official national church, compelling participation, or funding a denomination through taxation, the model the Framers knew firsthand from the Church of England. The Trump administration has done none of those things. No denomination has been named a state church, no citizen has been compelled to worship, and no taxpayer funds have been directed to a religious institution as such.
The Pentagon prayer services began in May 2025, when Defense Secretary Pete Hegseth organized the first “Secretary’s Christian Prayer and Worship Service” during a workday at the Pentagon auditorium, broadcast live on the Department of War’s internal television network, with all department employees invited to attend.
At a monthly Christian service on March 25, 2026, Hegseth asked God to “let every round find its mark against the enemies of righteousness and our great nation.” Similar services were established at the Department of Labor, where Secretary Chavez-DeRemer spoke of her Catholic faith at the inaugural service on December 10th, and the gatherings have continued monthly.
The legal response has been led primarily by Americans United for Separation of Church and State. The suits, filed March 23, 2026, in U.S. District Court in Washington, D.C., are procedural in nature and do not directly challenge the constitutionality of the prayer services, representing the fourth and fifth FOIA lawsuits the group has filed against the Trump administration, following earlier suits against the Departments of Health and Human Services, State, and Veterans Affairs over the president’s February 2025 executive order aimed at eradicating anti-Christian bias in the federal government.
Separately, Trump signed an executive order on May 1, 2025, creating a Religious Liberty Commission whose members include Pastor Paula White-Cain, Cardinal Timothy Dolan, Rabbi Meir Soloveichik, and Franklin Graham. Americans United and Democracy Forward filed a lawsuit against the commission in February 2026, challenging its composition and seeking to block publication of its report on behalf of interfaith, Muslim, Sikh, and Hindu organizations.
At the commission’s final hearing, Texas Lt. Gov. Dan Patrick, the commission’s chair, called church-state separation “the biggest lie that’s been told in America since our founding.”
The term separation of church and state is one that liberals believe has special powers attached to it, like when they kept saying during his trial that Kyle Rittenhouse had “crossed state lines,” which he probably had, but that had nothing to do with the case.
In 1644, Roger Williams, founder of Rhode Island and the First Baptist Church in America, was the first public official to call for a “wall or hedge of separation” between “the wilderness of the world” and “the garden of the church,” not to restrict religion, but to protect the church from government corruption.
The phrase as used today derives from Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, a private letter written to reassure a Baptist minority that the federal government would not interfere with their worship, not a legal document, legislative act, or founding text.
Notably, both Jefferson and Madison, the men most associated with church-state separation, mixed religion and government in practice: Madison issued proclamations of religious fasting and thanksgiving, and Jefferson signed treaties sending religious ministers to Native Americans.
In Zorach v. Clauson, 343 U.S. 306 (1952), the Supreme Court ruled 6-3 that a New York City policy permitting public school students to leave campus for religious instruction did not violate the Establishment Clause. Justice William O. Douglas wrote: “We are a religious people whose institutions presuppose a Supreme Being…”
“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. To hold that it may not would be to find in the Constitution a requirement that the government shows a callous indifference to religious groups.”
There have been 151 national calls to prayer, humiliation, fasting, and thanksgiving by U.S. presidents from 1789 to 2022, with 35 of the 46 presidents signing proclamations for national prayer, and every president since Eisenhower participating in the National Prayer Breakfast. Reagan proclaimed 1983 the “Year of the Bible” and stated: “I believe the First Amendment was written not to protect the people and their laws from religious values, but to protect those values from government tyranny.”
Newsweek described the George W. Bush White House, where prayer meetings ran day and night, and Bible study was encouraged, as “the most resolutely faith-based” presidency in modern times. Jimmy Carter ordered a half-hour interfaith prayer service at the Lincoln Memorial on the morning of his 1977 inauguration.
Not only has religion been a feature of government since before World War II, but the tradition is older than the Constitution itself. The Continental Congress established the military Chaplain Corps on July 29, 1775, at the request of George Washington, authorizing one ordained chaplain at the rank of captain for each regiment, 218 of whom served through the Revolutionary War.
That same Congress called the colonies to prayer in 1775, predating the Constitution entirely. When the Senate first convened in New York City on April 6, 1789, appointing a chaplain was among its first orders of business, electing the Right Reverend Samuel Provoost, Episcopal Bishop of New York, on April 25.
The House followed on May 1, electing the Rev. William Linn, continuing the tradition established by the Continental Congresses of opening each day’s proceedings with prayer. From its first session, the Supreme Court has opened each sitting with the cry “God save the United States and this honorable Court.” Congressional prayer, military chaplains, and government-called days of fasting and thanksgiving were the baseline from which the republic began.
Washington himself left no ambiguity. In his Circular Letter to the thirteen state governors on June 8, 1783, he closed with these words:
“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government, to entertain a brotherly affection and love for one another… and finally, that he would most graciously be pleased to dispose us all, to do Justice, to love mercy, and to demean ourselves with that Charity, humility and pacific temper of mind, which were the Characteristicks of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a happy Nation.”
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