It’s happening in real time. The Ten Commandments in schools is one of several legal challenges over religion that’s reshaping the national conversation regarding separation of church and state.
Following a major court decision on SB 10, which requires public school classrooms to display the Ten Commandments, two lawyers sit down to discuss the debate. Texas Freedom Network Board Member and attorney Calvin Warner speaks with SMU Dedman School of Law Professor Dale Carpenter about the ruling, the future of the case and what it could mean for religious freedom in the country:
Calvin: Do you expect the Supreme Court to hear an appeal of this case? If so, what would you guess would be the outcome?
Dale: I don’t expect quick action on this from the Supreme Court. If the Court does agree to consider the case, I think it would likely affirm the Fifth Circuit’s judgment.
Calvin: Does this ruling open the door for an influx of other religious displays or practices in Texas public schools? And could this provide a constitutional basis for public funds to begin flowing to sectarian schools?
Dale: In theory, the analysis of the Circuit would seem to permit other religious displays, because such displays would not likely constitute an establishment in the late 18th century sense.
Calvin: In Stone v. Graham (1980), the Supreme Court invalidated a similar Kentucky law. That ruling has never been overruled. Is it unusual that a lower court was willing to disregard a higher court’s holding on essentially the same facts?
Dale: The Fifth Circuit acted somewhat aggressively in sidestepping the holding of Stone v. Graham. The basis for doing so was that Stone has been undercut by subsequent decisions affecting a related line of cases. But the Supreme Court usually prefers that the lower courts continue to adhere to the decision that has been undercut until the Supreme Court itself holds that the decision is overruled.
Calvin: We know that the Supreme Court permitted the passive display of the Ten Commandments at the Texas Capitol in Van Orden v. Perry (2005). The question presented in Nathan is arguably different: can the state use its power to promote a single faith to captive and impressionable schoolchildren. Do you think the majority sufficiently addresses this distinction?
Dale: I don’t think the majority adequately accounted for the fact that public school education is mandatory and that grade school children are especially impressionable and subject to the authority of the school environment.
“…religion is a matter which lies solely between Man and his God.”
– Thomas Jefferson
Calvin: Many readers today understand the First Amendment (and the Establishment Clause specifically) as protecting religious conscience and erecting a “wall of separation” between church and state. This idea goes back to at least Thomas Jefferson and also the Supreme Court itself in both Reynolds v. United States (1878) and Everson v. Board of Education (1947). In Nathan, the Fifth Circuit writes instead that we must return to an 18th century understanding of an “establishment” to interpret the First Amendment, and that the scope of First Amendment protections is actually much more narrow. Does limiting “establishment” to something like an official state church really reflect the original understanding, or is that contested?
Dale: The main problem with the Fifth Circuit’s analysis, in my view, is that it fails to translate its rendering of an 18th century “establishment” into the facts of 21st-century mandatory public school education. It’s as if the court held that because there was no Internet in the late 18th century, the free speech clause of the First Amendment could not apply to government regulation of that medium. Since there was no mass public education in the 18th century, much less required school attendance, the obligation of originalist theory should be to apply the original principles to modern-day circumstances.
Calvin: The Fifth Circuit was unimpressed by the plaintiffs’ argument that it is “coercive” to require public schools to display the religious texts of one faith to schoolchildren of all faiths. The Fifth Circuit writes that essentially anything short of forced participation in religious exercise is not coercive. But the Supreme Court held just last year in Mahmoud v. Taylor (2025) (following Yoder) that “the Free Exercise Clause also protects against policies that impose more subtle forms of interference with the religious upbringing of children.” Is it possible to square this holding with past cases on religious coercion?
Dale: There are factual differences between the application of anti-coercion theory in Mahmoud and in this case. On the one hand, Mahmoud involved lessons that were directly delivered by teachers who asserted normative judgments about the subject matter. This case involves the passive display of a religious text, without further instruction or context provided. On the other hand, both cases involve government-approved material in a grade school where attendance is mandatory, opt-out is unavailable, the children are especially susceptible to the authority of the school environment, and parents object (sometimes on religious grounds) to the material.
Calvin: Do you think the Fifth Circuit would have come out the same way if the bill required schools to display teachings of a non-Christian faith, or to display a political statement like “In this school we believe no human is illegal” or simply a pride flag?
Dale: The principles of the decision would indicate that the display of a different religion’s teachings, a pride flag, or a political sign would also not be an establishment of religion or interference with free exercise.
Calvin: The Texas AG’s Office led by Ken Paxton has stated that the separation of church and state is “bogus” and found nowhere in the Constitution. Do you think this is an accurate interpretation of the Constitution?
Dale: The Attorney General is, of course, correct that the phrase “separation of church and state” nowhere appears in the text of the Constitution. But the words “federalism“ and “separation of powers“ also appear nowhere in the text of the Constitution. That doesn’t mean the principles aren’t there.
