The Fifth Circuit must decide whether Kennedy’s “historical practices and understandings” test allows Ten Commandments in classrooms that Stone v. Graham once forbade—reshaping religious liberty and church-state boundaries.
Constitutional Showdown – Legal Analysis
The Virginia Christian Alliance continues our Constitutional Showdown series by Jeff Bayard, framed by a Christian worldview and constitutional originalism, exposing how modern courts twist the Framers’ intent while equipping believers to defend constitutional truth through faithful citizenship and prayer.
Why This Case Matters Now
On January 20, 2026, the full U.S. Court of Appeals for the Fifth Circuit heard two cases that will decide whether Ten Commandments in classrooms are a constitutional acknowledgment of America’s religious heritage—or an unlawful state endorsement of faith. If you care about religious liberty, your kids’ schools, or the original meaning of the First Amendment, this decision matters to you.
The cases are Roake v. Brumley (Louisiana) and Nathan v. Alamo Heights Independent School District (Texas). Both challenge state laws requiring the Ten Commandments in public school classrooms. Louisiana’s HB 71, signed in June 2024, mandates an 11-by-14-inch poster displaying the King James Version as “central focus” in every K-12 classroom. Texas’s SB 10, effective for the 2025-2026 school year, requires a durable poster at least 16 by 20 inches “in a conspicuous place” visible from anywhere in the room.
Federal district courts blocked both laws, relying heavily on Stone v. Graham (1980), a Supreme Court precedent that struck down an identical Kentucky requirement. In Louisiana, a three-judge Fifth Circuit panel agreed that Stone controlled—until the full court vacated that ruling and agreed to rehear both cases en banc. That move signals the court may rethink how Stone applies after the Supreme Court’s seismic shift in Kennedy v. Bremerton School District (2022).
The core question is stark: Did Kennedy fundamentally change Establishment Clause analysis enough to save these Ten Commandments laws from Stone‘s fate?
Romans 13:1 reminds us that authorities are “instituted by God.” As Christians committed to both biblical truth and constitutional fidelity, we must understand what’s at stake when government brushes up against the boundaries of religious freedom. The question is not whether the Ten Commandments are true—they are—but whether government may acknowledge that truth without crossing the line into “establishing a state church.”
Here’s what we need to understand: The path from Lemon to Kennedy is the key to unlocking these cases. Once we see what the Framers meant to forbid, we can ask how Ten Commandments in classrooms measure up.
From Lemon to Kennedy: A New Test
What the Establishment Clause Actually Says
The First Amendment’s Establishment Clause is just 16 words:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
It grew out of the Framers’ hard-won experience with state churches in England and the colonies—churches that punished dissenters, extracted tithes, and forced mandatory worship. The Clause was written to prevent that kind of establishment, not to exile all religious expression from public life.
For nearly four decades, courts used a rule called the Lemon test (from Lemon v. Kurtzman, 1971). Under Lemon, government action was constitutional only if it satisfied three conditions:
- Had a secular purpose
- Had a primary effect that neither advanced nor inhibited religion
- Did not create excessive entanglement between government and religion
On paper, that sounds tidy. In practice, it pushed courts to second-guess motives and scrub away many public references to faith the Framers would have accepted. Using Lemon, the Kentucky Supreme Court in Stone v. Graham (1980) struck down a Ten Commandments law, concluding that the law’s “pre-eminent purpose” was “plainly religious in nature”—failing Lemon‘s purpose prong.
Kennedy Changed Everything
Then came Kennedy v. Bremerton School District (June 2022). A high school football coach in Washington State prayed quietly at midfield after games. The school told him to stop. The Supreme Court, in an opinion by Justice Neil Gorsuch, said that was wrong—and in doing so, overturned decades of Establishment Clause doctrine.
Gorsuch declared bluntly: “this Court long ago abandoned Lemon.” In place of Lemon‘s “abstract and ahistorical approach,” Kennedy held that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” The question courts must now ask is straightforward: Does a challenged practice reflect what the Founding Fathers understood to constitute a forbidden “establishment of religion”?
This is not just a tweak. It’s a wholesale shift in how we read the Constitution.
The Six Hallmarks: What the Framers Meant to Forbid
Justice Gorsuch’s concurrence in Shurtleff v. City of Boston (2022)—which Kennedy embraced and cited repeatedly—identifies six specific “hallmarks” that characterized the state churches the Framers meant to prohibit:
- Government control over church doctrine and clergy selection.
- Mandatory attendance at religious services.
- Compulsory financial support for religion through tithes or taxes.
- Legal penalties or restrictions on dissenting worship.
- Religious tests for holding political office.
- Using the church to carry out civil government functions.
These hallmarks reflect the lived history of the Church of England and the colonial establishments that forced conformity and punished dissenters. When Madison wrote that religion “must be left to the conviction and conscience of every man,” he was rejecting coerced conformity—not passive government acknowledgments that God exists or that His law shaped our founding principles.
The lesson: A passive classroom poster doesn’t control what clergy teach, require anyone to worship, extract tithes, punish dissenters, impose religious tests for office, or use a church for government functions. By this measure, it bears no resemblance to the establishments the Framers forbade.
Here’s the key question the Fifth Circuit must now answer: When you look at that list, does posting the Ten Commandments in a classroom trigger any of those hallmarks—or does it simply acknowledge historical and moral truths?
Do Classroom Ten Commandments Posters “Establish” Religion?
Defenders of HB 71 and SB 10 argue yes, these laws are constitutional under Kennedy—for three connected reasons.
Founding-Era Practice Permitted Public Religious Acknowledgments
Start with history. The Framers themselves publicly acknowledged religious foundations for law and liberty.
The Northwest Ordinance (1787)—passed by the same Congress that proposed the Bill of Rights—declared that “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Massachusetts’s 1780 Constitution required public support for “public Protestant teachers of piety, religion and morality.” State constitutions and founding documents routinely referenced God, biblical principles, and the moral law.
Modern historical scholarship confirms what these documents show: “no evidence exists that passive government displays of religious items were understood as a form of forbidden establishment” in the Founding era. When concerns about religious symbols did arise, they focused on suppressing dissenting faiths, not on government displaying religious content.
Consequently, if the Founders understood that public acknowledgments of religious truth were compatible with free conscience and equal treatment, then courts applying Kennedy‘s “historical practices and understandings” test should reach the same conclusion today.
Classroom Posters Trigger None of the Six Hallmarks
A simple checklist shows the power of this argument.
Government control over doctrine? No. A poster displays text; it doesn’t require schools to teach specific theology or control what clergy may say. Mandatory worship? No. Students aren’t required to recite, pray to, or affirm the Commandments—they simply see text on a wall. Tithes or compulsory financial support? No. The laws don’t tax anyone for religion. Penalties on dissenting worship? No. Students and families remain free to follow their own faith traditions without penalty. Religious tests for office? No. The laws don’t condition voting, holding office, or any political right on religious belief. Using churches for civil functions? No. Schools remain schools; churches remain churches.
A classroom poster does none of these things. That’s precisely why defenders argue these laws are simply not establishments in the sense the Framers meant.
The Commandments Shaped American Law
Both HB 71 and SB 10 include statements noting that the Ten Commandments have played a significant role in the development of American law and moral principles. The Supreme Court itself, in Van Orden v. Perry (2005), upheld a Ten Commandments monument on the Texas Capitol grounds, emphasizing that the Commandments have historical significance alongside other monuments on the grounds.
If schools may teach about the Commandments’ historical influence in literature, history, and law classes, defenders ask, why may they not display a poster acknowledging that same influence?
This is where the argument seems strongest for the states. Under Kennedy‘s historical-practices test, these three points carry real weight. But the Fifth Circuit must also grapple with the opposition’s most powerful counterargument.
The Strongest Case Against These Laws
Opponents don’t claim these laws are evil. They claim they’re constitutionally problematic in the school context—and their argument deserves serious consideration.
Schoolchildren Are a Captive Audience
Imagine your child at a mandatory school event where everyone else stands, bows heads, and prays. The Supreme Court has long recognized that schools are fundamentally different from other public settings. Children are required by law to attend. They don’t choose to be there, and they can’t simply leave when they disagree with what they see.
In Lee v. Weisman (1992), the Court struck down clergy-led graduation prayers, holding that objecting students “are obliged to be present” and experience “subtle coercive pressure.” In Santa Fe v. Doe (2000), the Court struck down student-led pregame prayers at football games, again emphasizing the coercive environment of school and the difficulty students face in opting out.
Justice Gorsuch acknowledged in Kennedy that “the government may not coerce people to observe religious practices.” The question opponents press is this: Does a mandatory, daily exposure to a particular religious text in every classroom constitute that kind of coercion?
Context and Cumulative Effect Matter
A monument on the Texas Capitol grounds—outdoors, among 21 historical markers on 22 acres—is one thing. A poster in every classroom that children occupy for six hours a day, 180 days a year, for thirteen years of education is quite another.
Louisiana’s requirement is especially stark: the poster must be the “central focus” in “large font.” Texas requires the display be “conspicuous” and “visible from anywhere in the room.” This isn’t a passive historical footnote. It’s a prominent, inescapable daily message in a space where attendance is compulsory.
As one district court judge noted, “Plaintiffs’ children will be forced to be a ‘captive audience’ reading a specific version of the Ten Commandments posted in every classroom, for the entire school year, regardless of subject matter.” If your child sat under the same religious text in every classroom, every day for thirteen years, would it start to feel like the state was taking sides?
Moreover, add to that the cumulative effect. Seeing the same religious text in every classroom, every day, throughout one’s entire education communicates a message: the state endorses this particular religious text. For families whose faith traditions disagree with the version displayed, the effect is felt acutely.
Rabbi Mara Nathan, a plaintiff in the Texas case, explained: “The version mandated does not match the text followed by our family.” This touches on a real constitutional problem: state selection of a particular religious text.
Choosing One Version Shows Denominational Preference
Both laws mandate specific texts associated with Protestant enumerations of the Ten Commandments. However, Jewish, Catholic, and Lutheran traditions count and number the Commandments differently. Roman Catholics, for example, combine the prohibition on other gods with the prohibition on graven images as the first commandment, then divide the coveting command into two.
When the state mandates a particular version, it picks a denomination. That looks less like historical acknowledgment and more like the kind of sectarian preference that troubles the religion clauses.
Here’s the critical point: Opponents don’t argue that Kennedy was wrongly decided. Rather, they argue that Kennedy left the school-prayer cases (Lee, Santa Fe) intact—and those precedents still demand heightened protection for captive student audiences. They contend that Kennedy‘s emphasis on “historical practices” doesn’t displace the concern that government shouldn’t impose religious exercises on mandatory school attendance.
A Third Way: Acknowledge God Without Coercion
The biblical and constitutional solution lies between two extremes: absolute secularism on one hand, and government-mandated religiosity on the other. Christians who honor both Scripture and the Constitution can chart a clearer path.
Distinguish Acknowledgment from Enforcement
Government may acknowledge religious heritage without “establishing” a state church. The Supreme Court permits legislative prayers in Congress and state legislatures. “In God We Trust” appears on currency. “So help me God” closes presidential oaths. None of these trigger the six hallmarks of an establishment.
These acknowledgments reflect genuine historical truth: religious principles did shape the Framers’ vision of liberty, natural rights, and justice. But acknowledgment is fundamentally different from enforcement. Congress may open with prayer; it cannot require citizens to pray. Government may acknowledge God; it cannot command worship.
The harder question: Is a classroom poster still in the realm of acknowledgment—or does the mandatory school context push it into enforcement?
Parental Authority and Government’s Proper Role
God ordained civil government to restrain evil and preserve order, not to establish religion. Romans 13:3-4 explains rulers are “God’s servant… an avenger who carries out God’s wrath on the wrongdoer.” Government’s authority reaches the moral law concerning human relationships—the “second table” of the Commandments (don’t murder, steal, bear false witness, etc.). But government has no authority to enforce the “first table” concerning worship and the love of God.
Deuteronomy 6:6-7 places responsibility for faith transmission squarely on parents: “You shall teach them diligently to your children.” When government mandates religious displays in compulsory schools, it nudges that responsibility toward the state and away from the family.
Here’s the harder question: If parents disagree with how government frames religion in schools—even if it’s “just” a display—shouldn’t their conscience be protected?
Integrate Religion Thoughtfully in Curriculum
Stone v. Graham itself acknowledged that “the Bible may constitutionally be used in appropriate study of history, civilization, ethics, comparative religion.” Schools can teach about the Commandments’ influence on law and Western civilization through rigorous academic study rather than ubiquitous posters.
For instance, a history class examining the Declaration of Independence and its appeal to “Nature’s God” and “unalienable rights” can explore how Judeo-Christian thought shaped the Framers. A civics class can teach how the Ten Commandments influenced Anglo-American legal traditions. Literature classes can study biblical narratives and their cultural impact. This is education—not coercion.
Ultimately, the Third Way recognizes that acknowledging God’s moral law as foundation for just government doesn’t require a poster in every classroom. It requires honesty in how we teach history, civics, and literature—and it requires respecting parental authority over faith formation.
How Christians Should Respond
The Fifth Circuit’s decision will matter. But it won’t be the final word on whether Christians successfully transmit faith to the next generation.
First: Pray for Judges
1 Timothy 2:1-2 instructs: “I urge, then, first of all, that petitions, prayers, intercession and thanksgiving be made for all people—for kings and all those in high positions, that we may live peaceful and quiet lives in all godliness and holiness.”
Specifically, pray that Fifth Circuit judges would have wisdom to apply the Constitution faithfully according to its original meaning, courage to resist political pressure from all sides, and humility to recognize the limits of what courts can accomplish.
Second: Invest in Faith Transmission at Home and Church
Here’s a hard truth: If you’re more passionate about government posting the Ten Commandments than about teaching them at home and in church, your priorities are disordered.
No government poster can replace a parent who reads Scripture with their child, prays with them, models obedience to God’s law, and walks through life’s decisions grounded in biblical conviction. No classroom display can substitute for a church community that disciples young people in the faith.
In short, if you lose your child’s heart because you outsourced their spiritual formation to government, no legal victory will restore what you’ve lost.
Third: Advocate for Robust, Honest Curriculum
Support policies that allow schools to teach about religion’s influence on history, law, and culture through rigorous academic study. Push back against false “neutrality” that pretends religion plays no role in civilization.
Equally important, do this for all religious traditions, not just Christianity. A truly fair curriculum acknowledges Judaism, Islam, Buddhism, and other faith traditions that have shaped societies and laws.
Fourth: Defend Religious Liberty for All
The same First Amendment protecting Christians’ right to pray voluntarily in school protects others’ right not to have government-selected religious texts dominate their classroom environment.
Remember: Religious liberty isn’t a zero-sum game. When we defend conscience rights for families of other faiths, we strengthen the principle that protects our own children’s faith.
Fifth: Witness Faithfully Regardless of Outcome
Our ultimate hope is not in judicial rulings but in Christ. Matthew 16:18 records His promise: “I will build my church, and the gates of hell shall not prevail against it.”
In the end, courts can regulate what hangs on classroom walls. Only Christ can write His law on human hearts.
Conclusion: Government Under God, Not As God
The Fifth Circuit faces a genuinely difficult constitutional question. Kennedy established that Establishment Clause analysis must focus on historical practices and the specific hallmarks of state-church establishment the Framers forbade.
Defenders can credibly argue that founding-era practice permitted public acknowledgment of religious truth and that passive classroom displays don’t coerce worship or trigger the hallmarks of an establishment. Conversely, opponents can equally credibly argue that Kennedy didn’t displace the school-prayer cases and that the mandatory school setting creates heightened constitutional concerns even if no formal “establishment” occurs.
The biblical and constitutional solution is neither absolute secularism nor government-mandated religiosity. It’s a Third Way: acknowledging that God’s moral law provides foundation for just government—as the Declaration affirmed—while recognizing that enforcing religious duties belongs to the church and the family, not the state.
Romans 13:1 teaches that authorities are “instituted by God,” but verse 4 clarifies their proper role: they serve as “God’s servant” to punish wrongdoing, not as God’s priest over human souls. Government operates under God’s authority but does not possess God’s authority over conscience.
Whether the Fifth Circuit rules for the states or the plaintiffs, the outcome won’t determine whether America remains “one nation under God.” Instead, that depends on whether God’s people faithfully disciple their children, bear witness that Jesus Christ is Lord, and live as citizens of a kingdom not of this world.
May we have courage to defend constitutional principles even when results don’t favor our preferences. May we have wisdom to distinguish what belongs to Caesar from what belongs to God. And may we have hope from knowing our ultimate citizenship is in heaven, where Christ reigns forever as King of kings.
Resources
Primary Sources
- Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf - Stone v. Graham, 449 U.S. 39 (1980)
- Louisiana HB 71 (2024)
https://www.legis.la.gov/legis/ViewDocument.aspx?d=1379435 - Texas SB 10 (2025)
https://legiscan.com/TX/text/SB10
Related VCA Articles
- “The State Tried to Ban This Catholic Therapist. A Court Just Said No”
https://vachristian.org/the-state-tried-to-ban-this-catholic-therapist-a-court-just-said-no/ - “Face Off: Pro-Life Ministry vs. The State’s Donor Demand”
https://vachristian.org/face-off-pro-life-ministry-vs-the-states-donor-demand/ - “Watson v. RNC: When ‘I Want to Vote Early’ Replaced ‘I Need to Vote Early'”
https://vachristian.org/watson-v-rnc-when-i-want-to-vote-early-replaced-i-need-to-vote-early/
Constitutional Resources
- Federalist Papers (especially No. 51 on separation of powers)
- The Northwest Ordinance (1787)
https://memory.loc.gov/cgi-bin/query/r?ammem/bdsbib:@field(DOCID+@lit(bdsbib000228)) - Massachusetts Constitution of 1780
https://secretary.mass.gov/documents-records/constitution-commonwealth
Scripture for Further Study
- Romans 13:1-7 (Civil Government Under God)
- Deuteronomy 6:4-9 (Parental Faith Transmission)
- Matthew 22:15-22 (Render to Caesar)
- Exodus 20:1-17 (The Ten Commandments)
- Daniel 3 (Shadrach, Meshach, and Abednego: Refusing Coerced Worship)
- Ephesians 2:8-9 (Faith Cannot Be Coerced)
Prayer Focus
- Wisdom and faithfulness for Fifth Circuit judges
- Protection of conscience rights for all families
- Strengthening of parents and churches in discipling children
- Revival and spiritual transformation through the gospel, not government mandate
- Courage for Christians to defend biblical truth and constitutional principle simultaneously
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