The Supreme Court will soon consider whether to review a Texas law requiring a poster of the Ten Commandments to hang in public school classrooms. The law requires a poster of the Ten Commandments to be at least 16×20 inches, easily readable, and displayed in a conspicuous place.
The 5th Circuit used the “historical practices and understandings” test to analyze the establishment clause challenge, which was introduced by the Supreme Court in its 2022 decision in Kennedy v. Bremerton School District. This test replaced the “Lemon Test,” which had been used to determine whether state action violates the establishment clause.
The Establishment Clause Challenge
The challenge to the Texas law was brought by parents of varying religious backgrounds, who claimed that the law violated the establishment clause and the free exercise clause of the First Amendment. The 5th Circuit found that the law did not violate the establishment clause because it did not punish anyone who rejected the Ten Commandments, require religious exercise or observance, or encourage students to adopt the Ten Commandments.
The court also considered the Supreme Court’s 1980 decision in Stone v. Graham, which ruled that a Kentucky law requiring the posting of the Ten Commandments in public schools was unconstitutional. However, the 5th Circuit noted that the Supreme Court had abandoned the Lemon test, which was used in Stone, and that the new test should be applied instead.
A writer who analyzed the 5th Circuit’s decision noted that the court’s ruling demonstrates how to adhere to the Supreme Court’s directive in Kennedy to consider “historical practices and understandings” when interpreting the establishment clause. The 5th Circuit recognized that the Ten Commandments can over time develop an additional nonreligious meaning, rooted in their historical significance as a foundation of the Anglo-American legal system.
The Supreme Court has recognized that religious symbols can acquire nonreligious meanings over time. In the 2019 case of American Legion v. American Humanist Association, the court considered whether a memorial to deceased World War I veterans in the shape of a cross violated the establishment clause. The court found that the cross had gained additional nonreligious meanings, such as marking the site of a soldier’s death, and that it did not promote Christianity.
The Supreme Court cited historical figures, including John Quincy Adams and William Blackstone, who recognized the Ten Commandments as a foundation of the Western legal tradition. In 1997, the Senate and the House of Representatives passed concurrent resolutions stating that the Ten Commandments have had a significant impact on the development of fundamental legal principles in Western Civilization.
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Passive Displays with Religious Origins
The writer argued that passive displays with religious origins, such as the Ten Commandments poster, have not historically been viewed as establishment clause violations, especially when the display has a second, nonreligious meaning. The writer noted that public schools often teach units on historical events, such as the Civil War, which may involve quotes or songs with religious origins, but that these do not necessarily violate the establishment clause.
For example, a teacher may hang a poster with Abraham Lincoln’s quote, “a house divided against itself cannot stand,” which is a reference to Jesus’ words in Mark 3:25. Similarly, a teacher may play the Battle Hymn of the Republic, which was originally a Christian hymn, as part of a lesson on the Civil War. The writer argued that it would be “constitutional overkill” to require schools to remove these materials simply because they have religious origins.
In the American Legion case, the court noted that city names like Bethlehem, Pennsylvania, and Las Cruces, New Mexico, have religious origins but do not violate the establishment clause. The writer argued that the same principle applies to the Ten Commandments, which have a dual meaning as both a religious text and a foundation of the Western legal tradition.
The Texas law was designed to ensure that public schools do not use the Ten Commandments posters to proselytize or coerce students into believing them. A student from a different religious background, such as a Hindu student, could read the Ten Commandments and understand their significance in the context of American law and history, without being forced to adopt a particular religious belief.
The Texas law requires public schools to display the Ten Commandments in a specific format, with the text of the commandments and nothing else. The schools can acquire these displays either by accepting privately donated displays or purchasing them using district funds.
Implications for Public Schools
The Texas law has been in effect since June 2025, and has not been shown to have caused any significant disruption or controversy in the state’s public schools. The law’s supporters argue that the display of the Ten Commandments is a way to promote respect for the law and for the cultural heritage of the United States.
