Texas Requires the Ten Commandments Be Posted in Every Classroom. SCOTUS May Decide If That's Constitutional.

The First Amendment to the U.S. Constitution prohibits the government from passing any law “respecting the establishment of religion.” Yet Texas has passed a law requiring every public school classroom in the state to prominently display the text of the Ten Commandments, as it appears in the King James version of the Bible. Does that state law violate the Establishment Clause?

Earlier this week, lawyers from the American Civil Liberties Union (ACLU), representing a number of Texas families “of diverse faiths and beliefs—including Baha’ism, Christianity, Hinduism, Judaism, Unitarian Universalism, and nonreligious traditions—whose children attend Texas public schools,” asked the U.S. Supreme Court to step in and rule against the Texas law.

These legal challengers have a strong case based on existing SCOTUS precedent. In Stone v. Graham (1980), the Court struck down a nearly identical Kentucky law that required the posting of the Ten Commandments in public school classrooms. “This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like,” the Court said. “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”

And more recently, in Mahmoud v. Taylor (2025), the Court held that the First Amendment right to the free exercise of religion is infringed when a school “substantially interfere[s] with the religious development” of a family’s child or “pose[s] ‘a very real threat of undermining’ the religious beliefs and practices the parent wishes to instill in the child.” As this week’s ACLU brief put it, “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…it is difficult to imagine what would.”

However, not every member of the current Supreme Court is such a big fan of the Court’s existing jurisprudence in this area of the law. Justice Clarence Thomas, for one, has argued that the Establishment Clause should be read as a limitation only on the federal government. “The Establishment Clause is a federalism provision,” Thomas has written, “which…resists incorporation.”

Incorporation refers to the legal doctrine under which the various individual liberties and limits on government power that are contained in the Bill of Rights have been applied, or incorporated, against the states through the 14th Amendment. By calling the Establishment Clause a “federalism provision,” Thomas meant that the clause was added to the Constitution purely as a structural limit on federal action that should not also limit what the states may do. The clause “protects state establishments from federal interference,” according to Thomas, “but does not protect any individual right.”

I don’t expect the Supreme Court to go that far if it ends up agreeing to hear this case. But other conservative justices have also raised their own complaints about modern Establishment Clause doctrine, which they see as too hostile to religious displays and observations by state officials, including by public school teachers and coaches. It’s possible that such conservative judicial views may cut in favor of this particular law.

One thing seems clear enough: If the Supreme Court weighs in on the constitutionality of a state law mandating the display of the Ten Commandments in every one of its public school classrooms, it will be the biggest separation-of-church-and-state case in years.

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