In Nathan v. Alamo Heights Independent School District, (5th Cir., April 21, 2026), the U.S. 5th Circuit Court of Appeals sitting en banc upheld the constitutionality of the Texas law requiring the posting of the Ten Commandments in every public-school classroom. By a 9-8 vote, the court found that the law did not violate the Establishment or Free Exercise clause. But 3 of these 9 judges thought that the plaintiffs lacked standing. However, all eight of the judges who dissented as to the constitutionality of the law thought plaintiffs had standing, so 14 judges in all held that the case was justiciable.
Judge Duncan's majority opinion on the merits said in part:
... 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.... Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago. See Kennedy v. Bremerton Sch. Dist..... 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? ...
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.
Most importantly, the “coercion” characteristic of religious establishments was government pressure to engage in religious worship.... Yes, Plaintiffs have sincere religious disagreements with its content. But that does not transform the poster into a summons to prayer....
Second, the Free Exercise Clause. Plaintiffs rely heavily on the Supreme Court’s decision in Mahmoud v. Taylor....
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.
Judge Ho filed a concurring opinion but disagreed as to standing, saying in part:
Our Founders didn’t just permit religion in education—they presumed that there would be religion in education.
Judge Oldham, joined by Judge Willett, filed an opinion concurring in part, but expressing reservations about justiciability, saying that: "This case is a textbook offended observer case."
Judge Ramirez, joined by 6 other judges filed a dissenting opinion, saying in part:
Although Kennedy “abandoned Lemon and its endorsement test offshoot,” it did not cite, much less purport to “abandon” or overturn, Stone—despite the opportunity to do so.... This court must follow Supreme Court precedent even if that “precedent . . . appears to rest on reasons rejected in some other line of decisions.”...
Stone is dispositive. But even if it was not, S.B. 10 independently violates the Establishment Clause under Kennedy....
The “subtle coercive pressure” Texas students will feel is precisely the type that Lee identified and that Kennedy labeled “problematic[]” under the Establishment Clause.... And S.B. 10 implicates a far greater risk of putting students “who object[]” to the Ten Commandments “in an untenable position.”... Unlike Lee, which concerned prayer only at a graduation ceremony that students were not required to attend or participate in, students’ attendance at school is mandatory, and they will be subjected to religious scripture all day every day—with no educational function....
The displays required by S.B. 10 threaten to “undermin[e] the religious beliefs that parents wish to instill in their children” and “pressure” students “to conform,” and Defendants have not satisfied strict scrutiny.... As a result, Plaintiffs have established a Free Exercise Clause violation.....
Judge Southwick, joined by 5 other judges filed a dissenting opinion, saying in part:
My objective here is to sift through the Establishment Clause jurisprudence left by Kennedy and determine what still applies. The sifting leads me to conclude that, under still-binding Supreme Court precedent, the Texas statute here is violative of the Establishment Clause. The Supreme Court may change the law further, but it has not done so yet. This inferior court judge concludes we are doing so. That is not our role....
... The school prayer cases — which I see as largely resolving the case before us and on which Stone primarily relied — are still good law....
Judge Haynes filed a brief dissent.
Judge Higginson, joined by 4 other judges filed a dissent, saying in part:
The Framers intended disestablishment of religion, above all to prevent large religious sects from using political power to impose their religion on others. Yet Texas, like Louisiana, seeks to do just that, legislating that specific, politically chosen scripture be installed in every public-school classroom.
Our court accommodates their unconstitutional request, supplanting decades of Supreme Court precedent merely because of a single decision the majority deems outdated. In doing so, the majority defies foundational First Amendment concepts, ignores the harms students will face, and usurps parents’ rights to determine the religious beliefs they wish to instill in their own children....
CBS News reports on the decision.
