SCOTUS Takes Up Ten Commandments in Public Schools — and the Establishment Clause’s Remaining Guardrails Are on the Chopping Block

Among the cases queued for the Supreme Court’s new term, one stands out for its potential to detonate what remains of Establishment Clause doctrine in public education: a challenge to a Texas law requiring the display of the Ten Commandments in every public school classroom. Reuters reports the case is part of a docket that could produce landmark rulings on religion in schools, immigration detention, and more. For constitutional practitioners, the Texas case is not a rerun of old culture-war skirmishes — it is a direct invitation to finish what Kennedy v. Bremerton School District, 597 U.S. 507 (2022), started.

The Legal Landscape After Kennedy

Recall that Kennedy formally interred the Lemon test, replacing it with a mushy “historical practices and understandings” inquiry. The Court insisted it was not abandoning Lee v. Weisman, 505 U.S. 577 (1992), or Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), both of which barred coercive religious exercises in school settings. But the opinion’s logic — that the Establishment Clause must be read by reference to founding-era practice — left the door open for states to argue that passive religious displays are part of the American tradition, not an establishment of religion.

Texas has walked through that door. The statute at issue requires the Ten Commandments to be posted in classrooms, a move that would have been unthinkable under Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which struck down a nearly identical Kentucky law as lacking a secular legislative purpose. Stone was decided under Lemon, and its per curiam opinion is exactly the kind of precedent the current majority has been quietly dismantling. If the Court takes the Texas case, the question will not be whether Stone is good law — it will be whether the Court bothers to overrule it explicitly or simply ignores it.

Why This Case Matters More Than the Headlines Suggest

First, this is not a case about student-initiated prayer or a football coach’s midfield genuflection. It is about state-mandated religious content in a compulsory setting. The audience is captive, the speaker is the government, and the message is sectarian. If the Court blesses this, the distinction between “accommodation” and “endorsement” collapses entirely. The Establishment Clause becomes a one-way ratchet: the Free Exercise Clause protects religious expression, but the Establishment Clause no longer constrains government sponsorship of it.

Second, the case will test the limits of the “history and tradition” methodology. Proponents of the Texas law will point to early American textbooks, the Northwest Ordinance’s reference to religion in schools, and the ubiquity of biblical references in 19th-century education. Opponents will counter that the First Amendment was a reaction against precisely that kind of state-church entanglement, and that the founding generation’s practices are not dispositive of what the Constitution permits today. The Court’s answer will tell us whether Kennedy was a course correction or a constitutional revolution.

The real stakes: if Texas wins, expect a wave of legislation — not just Ten Commandments displays, but Bible literacy courses, “In God We Trust” mandates, and other forms of religious instruction — all defended as part of America’s “tradition.” The Establishment Clause will have been effectively read out of the Constitution for public schools.

What Practitioners Should Watch

For lawyers representing school districts, the case presents immediate compliance questions. If the Court grants cert and signals sympathy for the Texas law, districts in conservative states may feel emboldened to adopt similar measures, even before a final ruling. That creates litigation risk: parents and civil liberties groups will sue, and lower courts will be forced to guess whether Stone still binds them. The smart move for school board counsel is to advise clients to wait — but politically, that advice may not be heeded.

For civil rights litigators, the case is a reminder that the Establishment Clause is no longer a reliable shield. Challenges to religious displays will need to be reframed as Free Exercise violations (coercion of non-adherents) or Equal Protection claims (favoring one religion over others). That is a harder lift, and it signals how much ground has already been lost.

The Broader Context

The Texas case arrives as the Court has already shown its willingness to expand religious liberty claims, most recently in Carson v. Makin, 596 U.S. 767 (2022), which required Maine to fund religious schools in its tuition assistance program. The through-line is clear: the majority sees the Free Exercise Clause as a sword against secularism, and the Establishment Clause as, at most, a shield against direct coercion. A ruling for Texas would complete that inversion.

Meanwhile, the Court’s other pending cases — on immigration detention and agency power — suggest a term focused on the scope of federal authority. But the Ten Commandments case is different. It is not about the balance of power between branches or levels of government. It is about the role of religion in public life, and whether the Constitution still imposes any meaningful limits on majoritarian religious expression in state institutions.

Conclusion

The smart money is on the Court taking the case and ruling for Texas, likely on narrow grounds that avoid explicitly overruling Stone but render it a dead letter. The opinion will be framed as a modest application of Kennedy’s history-and-tradition test, but its effect will be anything but modest. For the first time in decades, public schools will be constitutionally permitted — perhaps even encouraged — to post religious doctrine on classroom walls. That is a sea change, and it deserves more attention than it is getting.