Texas has the most counties (254), most farms (231,000), and most square miles (268,000) of any continental U.S. state. And now, a new claim: The most public school classrooms required to display a copy of the Ten Commandments.
Last year, Gov. Greg Abbott signed SB 10, requiring every classroom in every grade, public school, and school district in Texas to have a 16” x 20” “durable” poster or framed copy of the Protestant version of the Ten Commandments hanging on its wall.
Fully aware of what it’s doing, the bill sidesteps a few First Amendment issues. For example, teachers aren’t required to teach the commandments and don’t even have to acknowledge their presence. Public schools and school districts aren’t required to purchase the posters or framed copies with district funds. But if a donor — say, the religious nonprofit Texas Values — donates posters or framed copies to a school, it must hang them in its classrooms.
My condolences to the teachers who now have to explain ‘adultery’ to kindergarteners and that they can’t covet their neighbor’s manservant.
On the one hand, it’s a silly law. Supporters of the law know it. But they probably wanted to get sued, to get appealed to the Supreme Court, and have the court walk back its precedents on the separation between church and state.
And they might succeed.
People are sometimes surprised to learn that the phrase “church and state” doesn’t appear in the Constitution. It comes from an 1802 letter Thomas Jefferson wrote to the Danbury Baptist Association. He was describing the First Amendment’s Establishment and Free Exercise clauses, which are fancy legal terms for Congress not being able to establish or ban a religion.
But the Constitution draws even more separation than that. Every time the document says that a government official must take an “oath,” it offers an “affirmation” alternative (a non-religious promise). No government official may be required to take a religious test to hold public office. And the presidential oath doesn’t even include the words “so help me God” (presidents choose to add that). The Constitution also doesn’t mention “God,” “the divine,” “ruler,” or “creator”. (It does say “blessings” in the Preamble and “year of our Lord” near the signing date, but neither of those is a legal part of the document.)
Despite the absence of the exact phrase “separation of church and state,” its spirit is certainly in the Constitution. Which is why the Supreme Court has historically and consistently ruled in favor of that separation.
So, when a multi-faith group of Christian, Jewish, Hindu, Unitarian, Baha’i, and nonreligious families sued Texas over the law, it seemed like a slam-dunk. A U.S. District Court judge sided with the plaintiffs, saying the law improperly favors Christianity. But in April, the U.S. Fifth Circuit sided with Texas, saying the law doesn’t technically establish a religion or punish anyone who rejects the commandments. The ruling was narrow, 9-8 (and “en banc,” a rare instance in which every judge on the circuit hears the appeal). With a trial court ruling one way and an appellate court ruling another, the case is almost guaranteed to be heard by the Supreme Court this term.
Luckily, there’s clear precedent. In Stone v. Graham (1980), the Supreme Court struck down a Kentucky law mandating the same thing — that the Ten Commandments be displayed in every public school classroom. The court said Kentucky violated the first part of the “Lemon test,” a three-part evaluation (from the Court’s 1971 Lemon v. Kurtzman decision) that measures if a law violates the Establishment Clause.
But here’s the catch: In 2022, the Supreme Court’s decision in Kennedy v. Bremerton School District (about a coach praying before games) overturned Lemon v. Kurtzman. So, no more “Lemon test.” According to the Fifth Circuit, that means the Supreme Court’s basis for striking down that 1980 Kentucky law no longer exists. (But, as the plaintiffs and dissenting circuit judges point out, that’s for the Supreme Court to decide — not a circuit court.)
The ACLU (representing the plaintiffs) appealed to the Supreme Court, where evangelical Protestants see an opening. Their goal isn’t just to get more commandments on walls; it’s to further erode the separation between church and state. Because much of that separation isn’t established by the Constitution expressly but by Supreme Court interpretations.
As we’ve seen these past few years — particularly with Dobbs v Jackson Women’s Health Organization and abortion in general — new justices means new interpretations, new norms, and discarded precedents.
The person defending Texas in this case, Attorney General Ken Paxton, is running for U.S. Senate. The case will likely make headlines as Election Day nears. Perhaps he sees it as a way to increase his religious bonafides against a religious opponent (who’s ahead or nearly tied in polls — in a deeply red state). And Paxton, as the person responsible for enforcing this law, has said Texas school districts must let him know if they are or aren’t complying with it. (He also wants to know, under a separate law, if Texas schools are setting aside at least some time each day for prayer.)
In all fairness, the Texas law doesn’t say how schools that don’t hang the commandments on the wall will be punished. But the Texas Education Agency could apply penalties, and Paxton could sue individual school districts.
Let’s cut to the chase: If we’re going by Supreme Court precedent, this all seems incredibly unconstitutional. As Justice Hugo Black wrote about the Establishment Clause in 1947’s Everson v. Board of Education decision, “the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”
It’s hard to say that Texas’s law does anything but that.
If the Supreme Court hears the case and sides with Texas — requiring a specific denomination (Protestantism) of a specific religion (Christianity) on the wall of every classroom in every public school (which kids are required to attend) — it’s kicking a Texas-size hole, with steel-toe boots, in that other wall — the one Jefferson was talking about.
Perhaps it’s best to end with the words of James Madison, the guy who actually wrote the First Amendment. A “practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States.”
Hard to get much clearer than that.
Ben Sheehan is the creator and host of Civics Made Easy, a PBS show breaking down the complex system of American government and civic participation. Watch the first episode here. Ben is also the bestselling author of What Does the Constitution Actually Say? A Non-Boring Guide to How Our Democracy Is Supposed to Work. Stay connected with Ben on his Substack Politics Made Easy here.
