A sensible ruling

Last week, the Fifth Circuit Court of Appeals decided that Ten Commandments displays in Texas public schools don’t violate the First Amendment. The decision has been controversial from the start. Critics argue that it is an indication that the sky is falling on the First Amendment’s Establishment Clause. The critics, though, are wrong. This case sensibly applies the historical meaning of the First Amendment’s Establishment Clause. To understand how it does so, we need to place the Fifth Circuit’s case in the context of First Amendment jurisprudence over the last several years.

For a generation, the Supreme Court’s most visible and controversial Establishment Clause cases discussed public religious displays and observances. In Lemon v. Kurtzman (1971), the Court announced a three-part test: first, the government action must have a secular purpose; second, it must have a secular effect; and third, it must not lead to “excessive entanglement” between the government and religion. The Lemon test would dominate Establishment Clause jurisprudence for many years. But that jurisprudence was a mess.

Taken literally, Lemon was not tolerant of religion in the public square. It led courts into a morass of second-guessing public displays of nativity scenes and menorahs and religious symbolism in public. With all of these problems, the Court began to experiment with different approaches—an endorsement test, a psychological coercion analysis—but for many years it didn’t overrule Lemon. So lower courts struggled to apply Supreme Court precedents while those precedents would unpredictably jump back and forth among various tests.

Finally, the Supreme Court wiped the slate clear in Kennedy v. Bremerton (2022). In this case, the Supreme Court held that a high school football coach did not violate the Establishment Clause when he prayed on the football field. The Supreme Court used this as the occasion to clean up the mess that Lemon had made.

In place of Lemon, the Supreme Court turned to the original meaning of the First Amendment. The First Amendment was written against a backdrop of history where establishments of religion were familiar. America had become independent from England, a nation with an established church. Many of the original American colonies had established churches of their own. This historical record provides lots of information for a Court interpreting the First Amendment’s prohibition on religious establishment. Accordingly, the Supreme Court considered the “historical hallmarks of religious establishments, such as legal compulsion to attend church or engage in a formal religious exercise.”

That brings us to the Ten Commandments litigation that reached the Fifth Circuit. Louisiana and Texas both passed legislation providing for the display of the Ten Commandments in public school classrooms. Predictably, this prompted litigation. Challengers argued that these laws ran afoul of the Establishment Clause. The challenge to the Texas policy made its way to the Fifth Circuit Court of Appeals, which held that the Ten Commandments displays don’t offend the Establishment Clause.

The court majority looked to the historical hallmarks of establishment and concluded that the Ten Commandments displays don’t match. Ten Commandments displays in a school don’t coerce religious observance. They don’t require people to attend a religious service or compel financial support for religion. They don’t condition civic participation on religion. So far, so good.

But maybe, some have argued, coercion comes in because this happened at a public school. Public schools are places of coercion, where compulsory education laws require students to attend or face truancy charges. This was a key point for several dissenting judges on the Fifth Circuit, who thought that having the Ten Commandments in a public-school classroom is a violation of the Establishment Clause.

Public schools are unique, to be sure. But to say that posting a document on a classroom wall is coercive would have broad implications—ones that would extend far beyond this case. It would suggest that a massive amount of material that is passively displayed at a school might be coercive. How about a display of the Declaration of Independence (“Laws of Nature and of Nature's God”)? Historical American coins (“In God we trust”)? Extend this to the outer limits, and we might expect a deluge of litigation about materials that are never even taught. Public schools are inherently fraught sites. They are never able to be religiously neutral in any absolute sense. But that doesn’t mean it would be better to make every display with a religious component into the basis for litigation. The Fifth Circuit court majority reasonably declined to say that a passive wall display of documents is coercive just because it happens in a public school.

Indeed, to the extent that legal coercion is important to Establishment Clause analysis, the wall display is notably non-coercive. No one is required to have any particular response to those Ten Commandments. Students could look at them, ignore them, scoff at them, learn from them, be annoyed by them, wish that the school had better art on the walls, or any of a thousand other possible responses. And the state government would not bring any consequence to bear on any student based on their response to what was hanging on the walls of the classroom. (For Christians who hope that these public displays will have a positive effect on the culture, there is reason to doubt how far these wall displays will go.)

The Fifth Circuit’s decision is reasonable and defensible. It engaged thoughtfully with the legal principles announced by Kennedy v. Bremerton and the historical materials that can illuminate the First Amendment’s meaning. It is only one of what will assuredly be more cases that will try to parse out the contours of our Constitution.