This newsletter is free and goes out to over 25,000 subscribers, but it’s only able to sustain itself due to the support I receive from a small percentage of regular readers. Would you please consider becoming one of those supporters? You can subscribe via Patreon or the Subscribe button below! You can also make one-time donations through Venmo, CashApp, or PayPal.
In a potentially risky move, a coalition of church/state separation groups representing more than two dozen Texas families are asking the Supreme Court to consider the legality of a law forcing Ten Commandments posters into state classrooms.
The request comes in the wake of a disastrous, but split, appellate court ruling earlier this year. The Fifth Circuit Court of Appeals ruled 9-8 this past April that those religious posters were legal, but their decision to allow Christian Nationalists to impose their religious beliefs onto children was at least limited to their jurisdiction.
The Supreme Court could do anything from reversing that decision to opening the door to Ten Commandments posters going up in classrooms around the country.
What the original Texas law said
All of this goes back to a bill, appropriately titled SB 10, meant to shove the Commandments into schools despite widespread opposition. The bill said every classroom would have to display a durable or framed 16” x 20” poster of the Ten Commandments—King James’ Version only. They could be privately donated or bought “using district funds.”
All of the posters would have to read as follows:
The Ten Commandments
I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.
The law also included a provision requiring the attorney general of the state to defend districts that got sued over this. If they were to lose the case, the state would then be “liable for the expenses, costs, judgments, or settlements of the claims arising out of the representation.” Which is to say if this ended up backfiring on Christian Nationalists, don’t worry, because taxpayers would foot the bill for their ignorance.
The Republicans (and a handful of Democrats) ignored all the opposition to this bill, including a letter signed by over 150 Christian and Jewish leaders who said it “undermines the faith and freedom we cherish.”
As you’d expect, lawsuits were filed soon after the law went into effect, but even when the church/state crowd was victorious, the decisions only applied in the districts where the Plaintiffs’ children attended. It became a huge game of Whac-A-Mole, where schools districts had to decide whether to put up posters they knew were illegal and risk getting sued by church/state separation groups… or risk getting sued by a scandal-plagued and highly litigious Republican attorney general (Ken Paxton) breathing down their necks.
It was Paxton who asked the full Fifth Circuit to decide the issue in both Texas and Louisiana (where a similar lawsuit was filed):
Texas Attorney General Ken Paxton asked the 5th Circuit Court to overturn Biery’s ruling and allow all 17 active judges on the court to hear both the Texas and Louisiana cases together.
A federal judge blocked Louisiana’s Ten Commandments law from taking effect in 2024, a decision unanimously upheld last year by a panel of three judges on the 5th Circuit Court. With all active judges on the court now hearing the cases, Texas and Louisiana officials hope for a more favorable ruling.
Twelve of the appeals court’s 17 active judges were appointed by Republican presidents. The court is considered one of the most conservative in the nation.
His request was eventually rewarded, because the Fifth Circuit is about as predictable as you can get. But even there, the decision was almost evenly split.
What the Fifth Circuit said
It’s useful to know what the judges said to justify their decision.
For example, the Plaintiffs argued that a SCOTUS decision from a case nearly five decades ago, Stone v. Graham, declared a virtually identical law in Kentucky unconstitutional. The lawsuit also said that in the Stone case, and more recently in Louisiana, the Ten Commandments were required to have a “context statement”—a disclaimer of sorts—alongside the posters, explaining the supposed historical relevance of the Decalogue. They didn’t even bother with that in Texas. So if those previous laws were illegal, this one was even more egregious.
The majority of the Fifth Circuit said the Stone precedent was no longer in effect because the justification for that decision—the “Lemon test,” which offered a method to determine if a law violated church/state separation—had been killed off by the U.S. Supreme Court.
“With Lemon extracted,” they wrote, “there is nothing left of Stone.”
What about the Establishment Clause? Didn’t the posters suggest government promotion of Christianity?
The majority said no because no one was forcing Christian views on anyone:
S.B. 10 looks nothing like a historical religious establishment. 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. 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. These are the kinds of things “establishments of religion” did at the founding. S.B. 10 does none of 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.
They essentially said there’s nothing Christian about the Christian commandments. It’s just a list devoid of any context. By the same logic, Texas could pass a law to put up The Satanic Temple’s Seven Fundamental Tenets and that would be fine, but they happened to choose this list, so what’s the big deal?
Similarly, they said that because kids don’t have to do anything in response to the posters, it’s not really coercive either.
To Plaintiffs, merely exposing children to religious language is enough to make the displays engines of coercive indoctrination. We disagree.
(You get the feeling that if a list of positive values from the Qur'an were up in classrooms, the judges wouldn’t consider that passive and harmless at all.)
Another argument the Plaintiffs made was that there was “no longstanding tradition” of displaying the Ten Commandments in public spaces and no legal precedent to back up that notion. That mattered because, with the Lemon Test gone, the Supreme Court has relied on the fickle idea of tradition. If a Christian cross, for example, has been up on city property for decades and decades without complaint, then that’s justification enough for it to be allowed to remain there. The Plaintiffs said that argument couldn’t work here because a tradition of putting Ten Commandments posters up in schools didn’t exist.
The judges just dismissed that whole argument.
They said that tradition might be fine to invoke when it comes to invocation prayers at governments meetings, but the “opposite” logic—that a lack of pushing the Ten Commandments in schools means we shouldn’t do it now—is a “bizarre view” that can’t be justified. Apparently, the only way the tradition argument can be used is to allow something that used to happen, not prohibit something that never happened.
By saying that, they also dismissed all the expert testimony that said this practice of shoving Christianity in the classroom was a modern creation—a very simple way to ignore the facts.
The idea that the posters would pressure kids into accepting Christianity was also rejected by these judges. They compared it to the Pledge of Allegiance—which is also religious, with its “one Nation, under God” line—to argue that students aren’t forced to say it. Therefore, they concluded, the Commandments weren’t burdening anyone’s religious exercise.
None of these arguments were strong legally or ethically.
The dissenting judges in this case were apoplectic about what their colleagues did. Writing for the group, Judge Irma Carrillo Ramirez wrote:
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.
The dissenters wrote that the Stone precedent is very much still in effect even if the Lemon test is no longer being used. They even cited the Kennedy case—the one about the showboating football coach who demanded the right to perform his prayers at midfield after games—to say that the Supreme Court still prohibits religious coercion. Kennedy was allowed to continue his prayers because students weren’t theoretically involved; the Ten Commandments law, however, directly impacts kids.
To argue otherwise ignores the unique context of placing religious scripture in public-school classrooms where, “given the impressionability of the young, government must exercise particular care in separating church and state”… It also ignores the self-evident nature of the Ten Commandments: they “command” the reader to follow certain directives. Those directives are largely religious in nature.
As a different dissenting judge pointed out, there’s no way to interpret these Commandments other than as a call to adopt a specific version of Christianity:
Texas children will naturally examine these posters and be left to reflect on the fact that one religion—different from the one they observe in their home, their synagogue, their mosque, or other place of worship—was selected to be in their school as a representation of what? An expectation of a model student? A good citizen? A properly devout person? The majority insists that students will not be “catechized,” but forgets their curiosity. Surrounded by the Ten Commandments displays, students will wonder about “the LORD”; they will wonder about “other gods”; they will wonder about “graven images”; they will wonder about “kill[ing]”; they will wonder about “adultery”; they will wonder about “covet[ing]” a neighbor’s wife... Teachers inevitably will be asked to answer these questions, but Texas parents did not entrust public-school teachers with the spiritual education of their children. It is a parent’s right to have these conversations—not inside the classroom, absent their input, but with their children, present at home.
They also pointed out that there was no way to opt out of this situation. Students may not have to say the Pledge, but they can’t escape looking at these posters.
Stated simply, “the right of parents ‘to direct the religious upbringing of their’ children would be an empty promise if it did not follow those children into the public school classroom”… If schools across Texas must display this scripture, then today our court ordains that empty promise.
What the petition to the Supreme Court says
The petition to the Supreme Court effectively highlights these arguments and urges the justices to live up to their own past decisions. To allow this law to stand, they imply, would be hypocritical.
They want the Court to answer two questions: Does the Establishment Clause forbid a state from forcing a “permanent, conspicuous display of a government-selected version of the Ten Commandments” in public school classrooms? And: Do those posters interfere with parents’ right to raise their kids in their religious faith and with kids’ rights to practice their own faith?
They argue that the precedent in Stone still stands and that the Fifth Circuit’s ruling conflicts with the Supreme Court’s recent decision in Mahmoud (which said schools couldn’t interfere with parents' right to the free exercise of their religion).
If the Supreme Court takes up the case, that would be a bombshell in itself. It could become one of the biggest church/state cases in years—and one that goes to the heart of the recent trend of conservatives trying to force their faith in public schools
The case would be one of the most significant dealing with religion in public schools since an ideologically divided Supreme Court ruled in 2022 that a former public high school football coach’s on-field prayers were protected under the First Amendment’s right to free speech.
…
“If the permanent, unavoidable imposition of biblical scripture in public-school classrooms does not interfere with, or threaten to undermine, parents’ ability to direct their children’s religious education and to instill particular religious beliefs and practices, it is difficult to imagine what would,” the groups wrote in their petition to the Supreme Court.
If the Supreme Court doesn’t take up the case, there will just be continued chaos everywhere. While Texas and Louisiana would be allowed to put the Commandments up in classrooms, other states like Arkansas could be prohibited from doing it.
There’s also another element to this case I’m not used to seeing from church/state groups. They’re making an emotional appeal for their side in addition to the facts-only version seen in the SCOTUS petition. How? They’re featuring some of the families involved in the lawsuit in two videos meant to show why these Ten Commandments posters are so damn harmful.
Like this one featuring Rabbi Joshua Fixler and his wife explaining why the posters violate their beliefs:
We are big believers in religious freedom and the separation of church and state. And for our kids to see the Christian version of the Ten Commandments every day in every classroom that they go into is a real violation of those sacred freedoms.
There’s also a video in which Ted & Rebekah Lowe, an interfaith Jewish and Christian couple, say that “Having the government insert itself into the religious dynamic of our family is so hurtful and frustrating and it is a violation of our constitutional rights.”
These videos won’t change the Supreme Court’s calculation on the matter, but they can help raise public awareness of the issue and make it clear that the people fighting this law aren’t just rabid atheists (not that there’s anything wrong with that). These are normal, likable Texas couples who just want to raise their children as they see fit. They want exactly what conservatives always claim to defend: the freedom to raise their kids in the faith of their choosing without government interference.
Normally, these kinds of videos are released by conservative groups who don’t have the facts on their side. With beautiful camera work, and emotional music, and glamour shots of everyone involved, they provide all this to the press in the hope that reporters will spread their preferred narrative. It’s long past time we play the same game. (Plus, we deserve bonus points for having both an emotional hook and all the legal facts on our side.)
We’ll find out in a few months if the Supreme Court chooses to take up this case.
Have these commandment thingies prevented a single school shooting? If not, then they are worthless.
So it's finally come down to this. SCOTUS is going to rule on whether the Establishment Clause actually means anything, or whether it's just an inconvenience for Christian Nationalists to ignore. Accuse me of being melodramatic if you wish, but this one is CRUCIAL. If the US is to continue to be at least a secular nation de-jure if not de-facto, The Nine had better damned well come down on the side of those opposed to this foolishness.
Otherwise, Gilead awaits.