Texas Commandments law upheld by appeals court

The 5th U.S. Circuit Court of Appeals on April 21 upheld SB 10, a Texas law requiring the display of the Ten Commandments in every public school classroom across the state.

The Freedom From Religion Foundation is part of a coalition in the lawsuit — Rabbi Nathan v. Alamo Heights Independent School District — representing a multifaith and no-faith group of 15 Texas families with children in public schools. The coalition also includes the American Civil Liberties Union, ACLU of Texas and Americans United for Separation of Church and State, with Simpson Thacher & Bartlett LLP serving as pro bono counsel.

In a close 9–8 decision, the majority took a narrow view of what the First Amendment’s Establishment Clause is meant to prevent, relying on a narrow, allegedly historical view of the clause. Judge Stuart Kyle Duncan, a President Trump appointee, joined by eight other Republican appointees, wrote: “If students disagree with the commandments or ignore them or laugh at them, SB 10 imposes neither penalty nor sanction, formal or informal. . . . Nor does SB 10 compel financial support for religious institutions.”

They argued that the Kennedy v. Bremerton decision permitting a coach to pray by himself on the football field after high school games has changed the precedent.

Eight judges dissented, writing four different dissents. Seven wrote that “legislation requiring the permanent fixture of religious rules in public-school classrooms, with no ‘educational function,’ violates [the] most basic First Amendment principles” and that “the Establishment Clause ‘was intended to erect a wall of separation between church and state.’”

Judge Irma Ramirez, a Biden appointee, said the 1980 precedent, Stone v. Graham, ruling unconstitutional a similar law in Kentucky, has not been overturned and may only be overturned by the Supreme Court.

FFRF and the other organizations representing the plaintiffs issued the following statement in response to the decision:

“We are extremely disappointed in [this] decision. The court’s ruling goes against fundamental First Amendment principles and binding U.S. Supreme Court authority. The First Amendment safeguards the separation of church and state, and the freedom of families to choose how, when and whether to provide their children with religious instruction. This decision tramples those rights. We anticipate asking the Supreme Court to reverse this decision and uphold the religious freedom rights of children and parents.”