The Ten Commandments return to federal court

Ratio Decidendi is a recurring series by Stephanie Barclay exploring the reasoning – from practical considerations to deep theory – behind our nation’s most consequential constitutional decisions.

On Tuesday the U.S. Court of Appeals for the 5th Circuit sat en banc to hear oral argument in two consolidated cases challenging state laws requiring the Ten Commandments be displayed in public school classrooms. Roake v. Brumley involves Louisiana’s House Bill 71; Nathan v. Alamo Heights Independent School District challenges Texas’ Senate Bill 10.

The resolution of these cases will hinge in significant part on how the 5th Circuit understands the reasoning of Kennedy v. Bremerton School District to apply in this context. In Kennedy, the Supreme Court fundamentally reoriented courts’ analysis of the establishment clause under the First Amendment, abandoning the much-maligned three-prong Lemon test that required government action to have a secular purpose, a primary effect that neither advances nor inhibits religion, and to avoid excessive entanglement with religion. In place of Lemon, the Kennedy court adopted an approach grounded in “analysis focused on original meaning and history.” The central question now before the 5th Circuit is what that shift means for religious displays in public schools – and whether the court’s 1980 decision in Stone v. Graham, which struck down a similar Ten Commandments requirement in Kentucky, is controlling.

Four specific questions emerged as central during oral argument and in the parties’ briefing. Properly understood, each points toward the same conclusion: there are strong reasons to uphold these laws.

Does Stone v. Graham control?

The challengers’ primary argument is straightforward: Stone v. Graham struck down a virtually identical Kentucky statute requiring the Ten Commandments to be posted in public school classrooms. Until the Supreme Court explicitly overrules Stone, lower courts are bound to follow it. Case closed.

But this argument misunderstands both Stone’s scope and Kennedy’s impact on establishment clause jurisprudence.

It might be a harder case if Stone had announced a categorical rule – that all Ten Commandments displays in public schools are unconstitutional, full stop. A lower court would face a genuine tension between following that bright-line holding and applying Kennedy’s new framework focused on historical hallmarks of established religion. But Stone did no such thing. Rather, Stone held that the Ten Commandments display in that case was unconstitutional based on the court’s analysis of the Kentucky statute’s purpose under Lemon’s purpose prong – which asked courts to determine if such a purpose was “secular” in nature. The court concluded that the state’s avowed secular purpose was in fact a sham – that Kentucky’s “preeminent purpose” was “plainly religious in nature.”

This reading of Stone is confirmed by the Supreme Court’s subsequent treatment of the case. In the 2005 case of Van Orden v. Perry, the plurality described Stone as a case about purpose, distinguishing it on the grounds that the Texas Capitol’s Ten Commandments monument had a legitimate secular purpose and did not confront schoolchildren in the same coercive environment. Justice Stephen Breyer’s controlling concurrence similarly emphasized the “determinative” role of purpose and context in Stone.

So here is the problem for the challengers: to follow Stone as they understand it, the 5th Circuit would have to apply Lemon’s purpose test to these Ten Commandments statutes. And it is precisely that purpose-driven inquiry that Kennedy made clear is no longer the law. Kennedy criticized the school district and the U.S. Court of Appeals for the 9th Circuit for relying on “Lemon and its progeny.” The court then expressly “abandoned Lemon and its endorsement test offshoot” and held that courts must assess establishment clause challenges “by reference to historical practices and understandings.” The purpose test was a creature of Lemon. With Lemon overruled, Stone’s methodology – whatever vitality its narrow factual holding might retain – cannot provide the analytical framework for evaluating these laws.

The Supreme Court’s approach in Loper Bright Enterprises v. Raimondo is revealing. When the court overruled Chevron deference (the doctrine that courts should defer to agency interpretations of statutory ambiguities), it took pains to clarify that its decision did “not call into question prior cases that relied on the Chevron framework.” Thus, those case-specific outcomes could remain undisturbed even as the methodology was abandoned. Kennedy contains no comparable saving language. To the contrary, Justice Neil Gorsuch’s opinion criticized the entire line of Lemon reasoning. If Kennedy had intended to preserve the holdings of all cases decided under Lemon while merely substituting a new test going forward, it would have said so – as Loper Bright did.

What test applies after Kennedy?

That conclusion leads to the second question: If Lemon is dead and Stone’s purpose inquiry is no longer viable, what framework governs? The challengers suggested at oral argument that courts should simply ask whether a practice is “coercive” in some general sense. But that formulation is too open-ended and risks collapsing back into the “ambitious,” “abstract,” malleable, and “ahistorical” Lemon standard that Kennedy deliberately rejected.

The answer lies in Kennedy itself and Gorsuch’s near-contemporaneous concurrence in the 2022 case of Shurtleff v. City of Boston holding that the government violated the First Amendment by excluding a religious flag from a government flagpole. The court relied on that case in Kennedy. The proper inquiry is not just into any history and tradition, and not coercion simpliciter. The analysis is “focused on original meaning and history” (emphasis added). And this approach asks whether the challenged practice implicates the founding-era historical hallmarks of an established religion – the specific characteristics that the Framers understood to constitute impermissible establishments.

Gorsuch’s Shurtleff concurrence, which Kennedy subsequently embraced, identified six such hallmarks that characterized the established Church of England and the religious establishments in the colonies that the First Amendment was designed to prohibit. I have written about these hallmarks elsewhere. They include: (1) government control over church doctrine and personnel; (2) mandatory attendance at religious services; (3) compulsory financial support through tithes; (4) restrictions on dissenting worship; (5) religious tests for political participation; and (6) use of the church to carry out civil functions.

Recently, Judge Thomas Hardiman, in an opinion for the U.S. Court of Appeals for the 3rd Circuit, adopted this framework. The Kennedy majority also mentioned these historical hallmarks three different times. Gorsuch’s Shurtleff concurrence is the best thing on offer to help explain what the court understood by these hallmarks.

Is this coerced religious exercise?

The third question concerns coercion. Of the six historical hallmarks identified above, the closest one the challengers to displaying the Ten Commandments in public schools can point to is the second hallmark – government-coerced participation in a religious service or religious exercise. But the analogy is problematic.

The challengers argue that students who are compelled by law to attend school cannot avoid the Ten Commandments displays, and that this unavoidable exposure constitutes unconstitutional coercion.

But unavoidability is not the same as coercion to engage in religious exercise. No one at the Founding – or for many decades thereafter – understood passive religious displays to raise constitutional concerns. Gorsuch’s Shurtleff concurrence recognizes this distinction, noting that the establishment clause was directed at the specific historical practices that characterized established churches, not at any governmental acknowledgment of religion.

As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” . . .  In fact and as we have seen, it appears that, until Lemon, this Court had never held the display of a religious symbol to constitute an establishment of religion. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.”

My own historical research with co-authors, which was cited in Tuesday’s oral argument before the 5th Circuit, supports this conclusion. Our systematic review of over 1,200 Founding-era sources revealed no evidence that passive government displays of religious items were understood as a form of forbidden establishment. When concerns about religious symbols did arise at the Founding, they arose where government was suppressing symbols of dissenting churches –not where government was displaying religious content.

To hold that a passive religious display constitutes coerced religious exercise would stretch those concepts beyond recognition. At that level of generality, the Pledge of Allegiance, “In God We Trust” on coins, and “So help me God” would all be “coercive.”

But the Founding-era hallmark of a religious establishment was mandatory attendance at religious services, not mere exposure to religious content. In Louisiana and Texas, students are not being required to pray, to affirm religious belief, or to participate in any religious observance, or asked to view others undertaking these exercises. They are being exposed to a display of text – text that, whatever its religious significance, the states contend has historical importance to the development of American law.

Any governmental acknowledgment of religion could be characterized as “coercive” to someone who disagrees with it. That is precisely the open-ended, policy-driven inquiry that Kennedy rejected in favor of historical analysis.

What about the free exercise clause?

The fourth question before the 5th Circuit concerns the challengers’ change in emphasis after the two cases went en banc (to the full court). Having won before the only panel to consider the cases solely on establishment clause grounds, the challengers made a late-breaking pivot in their supplemental en banc briefing to emphasize free exercise claims, arguing that the Supreme Court’s recent decision in Mahmoud v. Taylor supports their position.

But there is a fundamental mismatch between the free exercise theory and the remedy the challengers seek. On that point, Mahmoud is informative, but not in the way the challengers suggest.

In Mahmoud, religious parents objected to Montgomery County, Maryland’s use of LGBTQ-inclusive storybooks in classroom instruction. The court held that the school district’s refusal to provide opt-outs burdened the parents’ free exercise rights. But critically, the Mahmoud parents were not asking for the books to be removed from the schools entirely. They were not even asking for the books to be removed from their children’s classrooms. They sought an as-applied remedy – an opt-out that would excuse their children from instruction involving the challenged materials. The court emphasized that free exercise claims support such individualized accommodations, not wholesale changes to curriculum that would bind all students. That is in keeping with the typically retail-not-wholesale nature of free exercise protections – which as the Supreme Court has frequently pointed out, are measured “to the person.”

Here, the challengers want the opposite. They do not want their children to opt out of particular classrooms where the Ten Commandments are displayed. They want facial invalidation of the statute, and a result that would require removal of Ten Commandments displays from all classrooms – not just their children’s classrooms, not just their children’s schools, but every government-owned classroom in Texas and Louisiana, including primary schools, secondary schools, and even the campuses of LSU and other state universities. That is not a request for religious accommodation. It is a demand to reshape the educational environment for every student in the state based on the challengers’ own religious objections.

Mahmoud strongly suggested that such demands would nearly always lose. As the court explained, the free exercise clause does not give individual objectors the right to “micromanage the public school curriculum.” Parents may have a right to shield their own children from material that conflicts with their religious beliefs. But they do not have a constitutional right to dictate what other students may be exposed to. Indeed, that is exactly the line drawn by the courts in challenges to the Pledge of Allegiance. Religious objectors like many Jehovah’s Witnesses have the right not to recite the Pledge with the rest of the class. But they do not have the right to demand that the American flag (which Jehovah’s Witnesses consider to be an idol) be removed from their children’s classrooms.

The Mahmoud parents objected to active instruction, not to books on the library shelf. The Ten Commandments displays are analogous to books on the shelf: present in the environment, but not requiring engagement. A free exercise claim might support an individual accommodation, but it cannot support statewide removal of the displays.

Conclusion

The resolution of these cases will have implications far beyond Texas and Louisiana. And they provide an important opportunity for lower courts to build on the Supreme Court’s reasoning and hallmarks test in Kennedy in ways that further bring federal establishment clause jurisprudence in line with original meaning.