Rebecca and Liz break down the strong history of courts rejecting government attempts to display Ten Commandments in public schools. They explain the seminal 1980 case Stone v. Graham, the SCOTUS cases since then reinforcing that precedent, and the growing number of states passing blatantly unconstitutional laws that force public schools to display Ten Commandments.
Background
Cases
Louisiana: Roake v. Brumley (2024)
Arkansas: Stinson v. Fayetteville School District No. 1 (2025)
Texas: Rabbi Nathan v. Alamo Heights Independent School District (2025)
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. My name's Rebecca Markert and I'm with Americans United for Separation of Church and State.
Liz Cavell: And I'm Liz Cavell with the Freedom From Religion Foundation. So today we are continuing with our Back to School theme. It's fall, it's September, and we're still going to be focusing on issues of religion in the public schools. Specifically today we want to talk about the recent rash of state laws requiring the posting of the Ten Commandments up in our public schools.
Rebecca Markert: We've talked about this a little bit on the podcast before in previous years when we've previewed legislative sessions, we've talked about these bills that seek to inject religion into our public schools, whether it be through school prayer, through chaplains, or through the posting of Ten Commandments. Just this year alone, there were 37 bills on Ten Commandments displays in public schools introduced in 20 states. It's a lot.
Liz Cavell: Yes. If you have no context for this, the trend has been zero since 1980. We'll get into why. So these legislative pushes to require schools to display the Ten Commandments is a very recent trend and totally having a moment.
Rebecca Markert: Of these 37, I'll start again. Of the 37 bills that were introduced this year in these 20 states, only two were passed into law. So that was this legislative success and that is great to know that there's pushback or no interest in these types of laws, but we know that they're not going to stop here.
Liz Cavell: So those 37 bills were from this year, 2025. Louisiana was a trendsetter in 2024. They passed their Ten Commandments bill last year. But there's a reason why only these three states and only two this year out of 37 are passing into law. And that's because these are guaranteed to draw immediate litigation. States passing these bills are rightfully being sued immediately because they plainly violate the current case law and they plainly violate the Establishment Clause. So today we're going to discuss particularly those state laws that have gone into effect and the recent litigation efforts challenging those laws that again require school districts to post the Ten Commandments in all of its schools in Louisiana and Arkansas and Texas. Today we want to talk a lot about the history actually and the case law that exists because it's important and it's real contrary to what many legislators seem to think. But the disclaimer is we're talking about a lot of current ongoing litigation. This is happening in real time. So by the time this episode is in your feed, some of the things we've talked about today may have changed particularly in the three cases that we're going to talk about. But first, let's travel back more than 40 years ago. This case that we want to start with takes place or was decided in 1980. So let's set the scene for the case law that's going to be relevant up to today when we're talking about challenging these laws.
Rebecca Markert: So the case from 1980 is Stone v. Graham. This is a case out of the state of Kentucky where four Louisville residents, a Jew, a Catholic, a Unitarian, and an atheist sued over the Kentucky state law requiring a quote, durable, permanent copy of the Ten Commandments to be displayed on a wall in every public school in this state. This case goes all the way up to the Supreme Court and in 1980 the court issues a five to four per curium decision overturning the state law. The court found that the requirement that the Ten Commandments be posted had no secular legislative purpose and was plainly religious in nature. The court did make a note in this decision that the Ten Commandments did not confine themselves to arguably secular matters such as murder and stealing, but rather concerned matters such as the worship of God and the observance of the Sabbath. In the decision the court wrote, "the preeminent purpose for posting the Ten Commandments on school room walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths and no legislative recitation of a supposed secular purpose can blind us to that fact."
Liz Cavell: So this was a very strong decision and you may be thinking, wow, that sounds identical to what these states are doing today in terms of what the state legislature did, which was passed a law that said "you have to post the Ten Commandments in every public school classroom." And that's exactly right. The factual frame here is more or less identical to what we're seeing take place today. But again, this is 1980, 5 to 4, and per curiam, which again means that no justice in the majority put their name on the opinion as to being the author, but we know the five justices that were in the majority. One of the things I wanted to just kind of point out is that you'll notice, I guess if you're a We Dissent super nerd, some of the language that Rebecca was just quoting is around that framework of secular purpose.
Is the legislative purpose of this law religious? Is there any secular reason why you could possibly pass a law like this? And that does reflect that the court at the time was undertaking somewhat of a Lemon analysis in analyzing what the purpose of the law was. But of course the opinion kind of goes on to discuss different aspects of the law, not just purpose, that render it unconstitutional under the First Amendment. And it's pretty obvious, right? I think it was as obvious at the time as it is now that it in terms of just viewing the Establishment Clause through a simple framework, not the Lemon Test, but just religious coercion by the government. It's kind of hard to think of something that's more religiously coercive than like you'll post the stone tablets of this one religion's theology in every place of learning for your young people run by the government. It really, I think factually is easy to understand as just a violation of whatever you think the Establishment Clause means. This seems to violate it.
Rebecca Markert: Right. And let's remember what the Ten Commandments start out with, which is I am the Lord thy God.
Liz Cavell: Right. Well, we hear all the disingenuous arguments, people trying to sort of support hanging the Ten Commandments in public schools as some sort of 10 good rules to live by kind of thing. What's the harm, right? The reality is the majority of the Ten Commandments are statements of theology, like theological statements of belief. I'm the Lord your God, you'll shall have no other gods besides me. You shall not, gosh, I should have paid attention in Catholic school. Worship graven images. You have to keep the Sabbath holy. These are not just groovy rules to live by that just happen to come from a religious text. The Ten Commandments, I think everybody understands as extremely sectarian and not just offensive to the non-religious or the atheists among us, but it's a really specific sectarian statement of the Iog belief. And so Rebecca mentioned at the top that the plaintiffs in this case included kind of the whole spectrum of different religious families that you would find in a public school, not just a non-religious family, but this is a specific version of the Ten Commandments being plucked out, literally composed by the government and it violates the conscience of not just non-religious people, but also Catholics or people who have a different version of the Ten Commandments, minority religious families like the Jewish plaintiffs in the case.
So I think Stone really set a standard. This is 1980. So again, this has been the law of the land for nearly half a century. And what's really important, we're going to kind of go through the history since then is that it's remained undisturbed even as the Supreme Court has considered other Ten Commandments displays on non-school public property and considered other religious display cases over the years, stone has remained solid good law standing for the principle that you can't have a religious display, particularly the Ten Commandments in public schools.
Rebecca Markert: I just want to interject for a little bit, but I did pull up the Ten Commandments to get all of the ones that are really religious directives such as thou shall not make thyself any graven images. Thou shall not take the name of the Lord thy God in vain, remember the Sabbath day, keep it holy honor thy father and thy mother, that thy days may be long upon the land, which the Lord thy God giveth thee. And I think it's important also for us to remember as we are discussing the Ten Commandments, that the ones that are at issue in these cases are generally the ones that are derived from the King James version of the Bible. So it is not only a specific religious text, but it also is one that is specifically religious to one particular denomination of Christianity. It does not account for the Ten Commandments versions that are used in Judaism or in Catholicism.
Liz Cavell: Right. That's such an important point. It just kind of adds the whole argument of what could be the harm. These are just 10 rules to live by not only how preposterous that is for non-religious families and students, but also how sectarian this specific version of the Ten Commandments, whatever it may be that's chosen by our government to post in our schools, can actually really offend the conscience of other religious groups.
Rebecca Markert: And it, like you said, goes to the fact that we saw a multi-faith group of citizens in Louisville challenge this law.
Liz Cavell: Before we get to the everything old is new again, portion of the podcast where we talk about the cases that are going on today, we wanted to do kind of a little walk through the history since Stone because it really highlight what a strong precedent Stone v. Graham has been in our federal courts. So first, let's talk about the Supreme Court's Ten Commandments display cases that took place in 2005. Now, the displays in these cases were not in public schools, so these were a pair of cases decided on the same day by the Supreme Court. One was called Van Orden v. Perry. It was a case that involved a Ten Commandments monument on the grounds of the Texas State Capitol. And then the other case decided that day McCreary County v. the ACLU involved two Kentucky counties that were displaying the Ten Commandments on county property a county court has.
Rebecca Markert: That's right. And the court in these two cases sort of split on how they came down. In the Texas case, the Supreme Court allowed the Ten Commandments monument to stay. The Supreme Court ruled that the monument at the Texas Capitol was permissible because it was joined by an array of other monuments, I think there was 21 other monuments on the grounds of the state capitol in Austin, and it had a 40 year history of being there without a challenge. And they deemed that to be a reason to allow it to be constitutional. The decision is a 5-4 plurality decision. They allow the monument, the decalogue to stay. But importantly for our current episode, the court highlighted the difference between the displays on public grounds like the state capitol grounds versus displays that occur in public schools.
And here's a quote from the decision: "There are of course limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public school classroom." The court also distinguished the display in Texas as "far more passive than was the case in Stone, where the text confronted elementary school students every day." And then I also want to bring up this quote from Justice Breyer who wrote in his concurring opinion that "the display is not on the grounds of a public school where given the impressionability of the young, the government must exercise particular care in separating church and state." So we bring this up because the court here in 2005, just 20 years ago, is differentiating between what's on public property and what's in the context of a public school. Again, as we've mentioned at nauseum on this podcast, this is just again showing us how important the court views the context of public schools in determining whether these religious actions are constitutional or not. They really do guard the constitutional rights of school children, especially when it comes to religion.
Liz Cavell: Right. And why? Because Justice Breyer is mentioning given the impressionability of the young, what that is getting at is that our public schools are inherently coercive. They represent the height of government coercion when it comes to exerting religious pressure because our students are young, they're impressionable. The power dynamics in our public schools are extremely tilted towards the government. And so the coercive of the environment really means the constitutional separation of church and state should really be at its highest protection, right? The court has always treated with heightened scrutiny, any Establishment Clause violations in the context of public schools and in Van Orden, the court is explicitly going out of its way to talk about Stone and how what it's deciding in Van Orden does not disturb Stone, it does not overrule Stone, it is completely distinguishable from Stone. And why? And I think that's significant because the court doesn't have to do that. Of course, the court can just decide this case on its facts and leave it for lawyers later to distinguish or analogize cases in public schools to Van Orden v. Perry. But the court was explicit in talking about stone and why it was deciding this case differently
Rebecca Markert: And it's doing this while it's upholding a display,
Liz Cavell: Right?
Rebecca Markert: In a different case, on that same day, as Liz mentioned McCreary County v. ACLU, the Supreme Court did rule unconstitutional. The displays in those two Kentucky counties at the two Kentucky County courthouses, they found there that there were purely religious purposes for those displays. And that decision was also 5-4.
Liz Cavell: Right. So the swing vote was Breyer, who Rebecca quoted from the Van Orden decision as explicitly writing in his concurrence why the public school grounds are different. And Breyer viewed the McCreary County displays as factually different from the Van Orden displays as well, not because they're in a public school, but for other reasons. The purpose behind the county's action, how plainly religious and religiously coercive the displays were meant to be a very different context and environment than the way that it painted the Texas State Capitol, which was like it's the grounds of the state capitol. It has all of these different monuments and statues, and they sort of compared it to a museum-like quality. None of that existed factually in the McCreary County displays. And so Breyer swung to strike down those displays and the court ruled that they were impermissible because they had no such secularizing features.
They were just Ten Commandments hung up in county courthouses. So we have these two cases in 2005 where the Supreme Court is again explicitly addressing Ten Commandments displays on public property. They're explicitly distinguishing Stone in the one case that upheld a Ten Commandments display on public property. So it has been very clear and never ambiguous whether or not Stone v. Graham is good law that holds the Establishment Clause is violated by public schools displaying Ten Commandments. So fast forward to today, 2024, 2025, why are legislators, state legislatures across the country, why are they pushing and passing these laws that have not been murky and have been clearly violating the Constitution for half a century? What's going on?
Rebecca Markert: What did you call them? The We Dissent super nerds?
Liz Cavell: Yes.
Rebecca Markert: Probably already know the answer to this, but they are finding a safe place to land in the current landscape of the federal courts that as we've mentioned before, are hell bent on dismantling the wall of separation between church and state, but they're also really getting their green light from the Kennedy v. Bremerton decision, which is the case that involved the praying coach at the 50-yard line where the Supreme Court upheld his midfield prayer practice as private and personal. And that decision also was the one that shelved the Lemon v. Kurtzman test, which is the test that has been used for decades to evaluate Establishment Clause claims and decide whether something is constitutional or not constitutional. And if you get rid of the Lemon Test, they are thinking, well, that means that every single case that relied on Lemon is now subject to vulnerability.
Liz Cavell: Right. And I mean, I think you can't undersell the significance of the ideological signals coming from the Supreme Court. Think of it like Dobbs. Why all of a sudden in 2018 to 2020 do we have states passing clearly unconstitutional laws like heartbeat bills and abortion bans that clearly violate Roe v. Wade because they think that they're going to shoot their shot at the Supreme Court who they feel are ideologically aligned with them on these issues. And just like the anti-abortion ideology of the Supreme Court, which has been born out, I think they've signaled their hostility towards the Establishment Clause and a strict separation of church and state,
Rebecca Markert: Right. And that's exactly why we are seeing this rash of bills in the state legislatures not only on posting Ten Commandments in public schools, but also looking to introduce prayer in public schools and chaplains and a host of all of these other religious incursions in our public schools because they do think that they're getting those signals from the Supreme Court and that these bills if signed into law, will be upheld,
Liz Cavell: Right. So let's tangle with these arguments that actually the court's recent decisions do affect whether or not Stone v. Graham is still good law. So let's talk about it. So did Kennedy v. Bremerton by throwing out the Lemon Test, somehow cast out on Stone v. Graham or overrule Stone v. Graham in some way?
Rebecca Markert: And the answer to that is no, it did not.
Liz Cavell: It did not.
Rebecca Markert: Stone v. Graham is still precedent. It's still binding precedent on lower federal courts and that decision clearly prohibits the display of Ten Commandments in public schools. Now, you may recall that only the Supreme Court can overturn Stone v. Graham. The lower federal courts cannot do that. They have to wait until the Supreme Court says that it's been overruled and it has not yet done that.
Liz Cavell: And I think this is what the states, Louisiana, Texas, Arkansas, this is what the states are pitching for, right? These laws, they're aimed at the Supreme Court. They know that the Supreme Court is ground zero for accepting these arguments, but these laws rely on an argument that Stone v. Graham is as good as overruled by the Supreme Court because of what it's signaled mainly in the Kennedy case.
Rebecca Markert: And not only that, but in Kennedy, the Supreme Court was pretty clear in reaffirming that public schools must not coerce their students into religion either.
Liz Cavell: Right. That's the thing. Kennedy was a terrible decision and struck a huge blow at our constitutional separation of church and state. And in addition to just being a total bastardization of the Supreme Court process, we had just a total fallacy in terms of the facts that were presented and that the court accepted. And we talked about this of course at the time, so there's a lot that's wrong with the Kennedy decision, but the one thing the Kennedy decision did include in terms of its own understanding of the limits of the Establishment Clause is that religious coercion in public schools is not okay. And so this whole framing of Stone v. Graham is overturned relies on a finding and an argument that mandating the posting of Ten Commandments in every public school student's face is not coercive, even in the interpretation of Stone v. Graham is overturned. There still has to be some sort of finding from ultimately the Supreme Court that these Ten Commandments laws don't violate Kennedy, whatever Kennedy does still mean for the Establishment Clause.
Rebecca Markert: There's also this constitutional principle under our religion clauses that the government is not allowed to prescribe official or approved religious statements or really take positions on religious issues. The Supreme Court has said that the government is not allowed to author prayers or dictate prayers or religious statements or what have you that involve religion because that is a blatant grotesque violation of the First Amendment. But that's exactly what's happening. When we look at these bills in Louisiana, Arkansas, and Texas, the state legislatures have picked, like we said at the top of the show, a version of the Ten Commandments from the King James Bible that they have decided is the official Ten Commandments that we need to post in public schools.
Liz Cavell: That's really an important, I think factual point is that the language of these bills that pass through the legislature includes a prescribed Ten Commandments that shall appear on these posters. Not that it would in any way be better or more legally defensible if it was some loosey goosey just every school district come up with your own. But it is important to note that the legislative action at issue here includes the legislature sitting down and writing out a state approved version of the Ten Commandments in order for schools to know what they have to post on their walls. That is in itself like Rebecca's trying to explain a separate sort of realm of Establishment Clause jurisprudence that the court has seized on before. It's not part of the Lemon framework, it's just, Hey, the government is just prescribing i.e. They are writing down religious edicts that the whole population should abide by. That's just Establishment Clause 1 0 1. The First Amendment prohibits that,
Rebecca Markert: And this is a principle that was reaffirmed in a case just 10, 11 years ago, Town of Greece v. Galloway. And this is a case that Kennedy v. Bremerton heavily relies on. And in that decision, this was a case about prayer at legislative sessions at city council meetings. In that case, the US Supreme Court just reaffirmed this principle that you cannot author particular religious statements or prayers. And so we have here going into the most recent legislative sessions, you have not only the binding precedent of Stone v. Graham, but you also have recent decisions that didn't necessarily go the way that we would want them to under the Establishment Clause, Kennedy v. Bremerton and Town of Greece v. Galloway. But those decisions still affirm the general principles that are at play. When we look at the Ten Commandments displays, they're going to be coercive and they're prescribing a particular religious text, all of which have been recently disavowed by this Supreme Court.
Liz Cavell: And again, these principles don't rely on some analytical framework that came about in the seventies when Lemon was decided, right? We've talked about this before, Rebecca and I on the show, that the court's obsessive hate directed at Lemon does nothing to disturb the Establishment Clause principles that were decided in cases before Lemon that are not overruled by the court or discarded or whatever the court did to the Lemon framework. Again, Lemon took many decades of Establishment Clause jurisprudence and tried to distill it into a judicial test to make it easier for the lower courts to decide Establishment Clause claims. But the Lemon framework had nothing to do with or didn't create these principles that Rebecca is cataloging here, like the prohibition on religious coercion by the government and the government decreeing what religious statements shall be. All of those principles are a very longstanding part of the understanding of what the Establishment Clause means and what it prohibits.
Rebecca Markert: So under Kennedy, we did get a new test. As we mentioned, they shelved the Lemon Test and introduced this idea of a history and tradition analysis. We've talked about this on the show before as well, but this is basically a test in which courts should look to historical understandings and practices at the founding in order to inform whether a particular government action is constitutional or not.
Liz Cavell: We're just kind of going over the state of play, right? Not endorsing this analysis framework, but what the court today is trying to say is that what should really matter most preeminently when courts are deciding Establishment Clause cases is this question of whether or not in our nation's history and tradition this type of government action would've been seen as prohibited by the Establishment Clause or a WWJD, What would Jefferson do analysis? This is all very obviously illogical because there are many things that exist today and scenarios that exist today, things like public schools that didn't exist at the time of the founding. So I think it's very stupid to frame our analysis of today's issues through this founder's lens, but that's what the court is sort of announcing in Kennedy is that we should look to these old colonial error abuses that the founders wrote the Establishment Clause to prevent. And that's how we should sort of determine if a modern government practice or action is unconstitutional.
Rebecca Markert: And no matter what we feel about the test, it is a test that we have to reckon with when we are taking these cases now. And one of the things that the litigation team has done in these cases over Ten Commandments is submitted an expert report on the history and tradition of Ten Commandments displays in public schools. And that expert report was drafted by Dr. Steven Green, who is a religious and constitutional legal historian, and we can get into the Louisiana and Arkansas and Texas cases in a little bit, but I just want to bring up his report because it was used in those cases. And I just want to talk a little bit about what he said in that report. He testified that the public school system did not exist at the founding, just as Liz just stated. And that public education didn't originate until around the late 1820s. And he, in his report, found no evidence that the Ten Commandments were permanently displayed in early American public schools at all, and that no state enacted allowing the display of Ten Commandments in public schools until 1927 when North Dakota did it. And that statute was also struck down. So just looking at this history and tradition, like Liz stated, there is none, and we have an expert historian saying there isn't any.
Liz Cavell: Right. So again, it's sort of this tiered analysis, the arguments being made in defense of these laws. It's like first of all, Stone v. Graham was overturned when Lemon was overturned, so Stone doesn't apply, and Kennedy then is the only case that applies to restrict the government's conduct in this case. And this is constitutional under Kennedy because it's not religiously coercive and it is somehow supported by a historical understanding of what was accepted in the minds of the founders when they drafted the Establishment Clause. So that is the path for the states who are defending these laws.
Rebecca Markert: So I think that's a great summary, Liz, and really sets us up for going into an overview of the state laws that we challenged. And before we get into those specific states, I just wanted to let everyone know that when these states passed these laws, there was a very strong coalition of groups, Americans United, the ACLU, the ACLU state affiliates in these different states, Louisiana, Arkansas and Texas, the Freedom From Religion Foundation, and a law firm, Simpson Thatcher. All of those groups got together and decided we needed to sue over these laws because they are blatantly unconstitutional. When we talk about the coalition moving forward, that's the coalition I'm talking about, the ACLU, FFRF, AU, and the law firm, Simpson Thatcher, and all of the ACLU state affiliates in those particular states. The first state that we're going to visit today is Louisiana, as Liz mentioned at the top of the show.
This was a state that passed a law, H.B. 71 back in 2024, and the bill itself has a lot of language and legislative intent. It requires the Ten Commandments to be displayed with a context statement and allow schools to also post historical documents like the Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance alongside the Ten Commandments. It also requires this Ten Commandments posting in every public post-secondary institution, and those will be displayed in each classroom on campus. What might be interesting for our listeners to know is when we're talking about the legislative intent, this is why the legislature passed this bill. I just want to read a quote from one of the Bill's sponsors to just give you an idea of why they decided to do this. Representative Dotie Horton was quoted as saying, I'm not concerned with an atheist, I'm not concerned with a Muslim. I'm concerned with our children looking and seeing what God's law is. That's how she explained why she proposed this bill. She wants children as young as five years old to know what God's law is.
Liz Cavell: And I love the casual dismissal of all the non-Christian students in the Louisiana Public Schools. I think one of the important things about the law, because it's a little interesting and maybe unique amongst some of the other ones we're going to talk about in that it has this permissive language that says schools can also post these other three very specific things. The Mayflower Compact, the Declaration of Independence, and the Northwest Ordinance. So schools don't have to, but they could post those as well. But what they don't have a choice in posting is the Ten Commandments. They shall post those in every classroom and they will be the main event on these posters,
Rebecca Markert: Right. Very significant point because no matter where you go in Louisiana public schools in those classrooms, the displays might look different, but the one constant is this prescribed version of the Ten Commandments. So like we said, we filed suit with these other coalition partners in the Middle District of Louisiana in 2024 in a case known as Rooke v. Brumley. We filed this case on behalf of nine families from various faiths. There were 14 parents and 16 kids, so 30 plaintiffs altogether. There are parents who are faith leaders and there are Jewish parents and non-religious parents, Presbyterians, Unitarian Universalists, a real diverse group of plaintiffs, again, very similar to the Stone v. Graham multi-faith group of plaintiffs challenging this very similar to the Kentucky statute in Stone v Graham law. And I also just want to take a moment to just honor the plaintiffs who stepped up to challenge this because it is not an easy thing to do to go against the prescribed religion in your particular you state, Governor, state, yes, it's not easy to stand up like this, and it's really incredible that we've got 30 people to do that in the state of Louisiana.
So I just wanted to give a moment to honor and celebrate their bravery in standing up. So the plaintiffs allege that the Louisiana state law violates not only the Establishment Clause, but also the free exercise clause. We also asked for a preliminary injunction which would prevent this law from being implemented. And on November 12th, we got an injunction.
Liz Cavell: Right. So again, this is all 2024. So the first law that was passed, the first challenge that was filed by our coalition effort. And then of course this is the first court to act on one of these new laws and challenges, and that was November of last year. So again, this is granting a preliminary injunction against the enforcement of the law, which just basically means while the litigation is pending, the law cannot be enforced. And the legal significance of that is that the court is finding that there is a strong likelihood that the plaintiffs will succeed on the merits, even though it's not a final decision on the merits. It is a signal that the court views the plaintiff's claims as persuasive.
Rebecca Markert: And it really is a strong signal in this district court opinion. On the preliminary injunction, the judge there said that H.B. 71 violated the First Amendment and longstanding Supreme Court precedent. As we previewed for you, the court wrote "the question is not whether biblical laws can ever be put on a poster. The issue is whether as a matter of law, there is any constitutional way to display the Ten Commandments in accordance with minimum requirements of the act. In short, the Court finds that there is not." The court also wrote that "Stone remains good law and is directly on point" and acknowledged as it was supposed to, that the court is bound to follow it. "But even putting Stone aside," the Court wrote, "plaintiffs have adequately alleged that H.B. 71 fails to comply with the Establishment Clause analysis laid out in Kennedy and Fifth Circuit precedent." It continued. "Each of the plaintiff's minor children will be forced in every practical sense through Louisiana's required attendance policy to be a captive audience and participate in religious exercise reading and considering a specific version of the Ten Commandments, one posted in every single classroom for the entire school year, regardless of the age of the student or subject matter of the course. Considering the totality of the circumstances, the Court finds the act and its requirements are coercive and inconsistent with the history of the First Amendment and public education." Pretty strong signal.
Liz Cavell: You love to see it.
Rebecca Markert: Yes.
Liz Cavell: So it follows completely with kind of the history and the case law that Rebecca and I have just laid out, right? This is what you would expect a federal court to do in one of these challenges.
Rebecca Markert: After the District Court opinion was handed down, the coalition sent letters to the districts in Louisiana to ask them to abide by the Constitution and warned them not to implement the law which was scheduled to take effect on January 1st, 2025. It's important to note here that the injunction is against the five school districts that were named in the lawsuit, but all school districts in Louisiana have to abide by the Constitution. And so our letter warned them that they should not implement this law. And another letter that we sent, we actually sent two letters. The second letter that we sent was addressing some misleading guidance by Louisiana State Attorney General who encouraged schools to implement the law despite the court's ruling. And of course, this case goes up to the Fifth Circuit on appeal, which in June of this year ruled unanimously that the law is unconstitutional.
Liz Cavell: Right, so again, this ruling by the Fifth Circuit, the appellate court that has jurisdiction over Louisiana is upholding that lower court's decision with regard to the injunction. In other words, it agrees that an injunctive relief is appropriate and that the plaintiff's case appears likely to succeed on the merits. And again, there's an actual issued opinion from this Fifth Circuit panel, which again was unanimous. So three judges on a Fifth Circuit panel, just all in agreement that basically the law, H.B. 71 is likely to violate the Establishment Clause.
Rebecca Markert: And because I like quoting from court opinions, I read all of this so you don't have to, here are a couple of quotes that I thought were significant from the Fifth Circuit opinion affirming the preliminary injunction. The Fifth Circuit wrote, if H.B. 71 goes into effect, impressionable students will confront a display of the Ten Commandments for nearly every hour of every school day of their public school education in the course of their regular activities. And they conclude under stone, H.B. 71 is plainly unconstitutional.
Liz Cavell: Right. I think that's powerful because it really just paints a picture of how coercive, what the state of Louisiana has done. When you think about it in that way, or frame it in that way, because the law requires the Ten Commandments to be prominently on display in every single public school classroom in the entire district, it's no exaggeration to say that no matter where they are, every single day, when they go to music, when they go to art, when they go to middle school and they start changing classes, when they go to gym everywhere they are in their public school for their entire K through 12 career public school education, they will constantly be bombarded by the state prescribed Ten Commandments. I think it really paints a picture of the coercion that's at work here.
Rebecca Markert: And of course, like we said, all of these cases are currently in litigation and the defendants in the Louisiana case have asked the Fifth Circuit for en banc review, which means they want the entire federal bench of the Fifth Circuit to review whether this preliminary injunction should have been granted. And we're still waiting for that decision to come down. It might come down by the time we publish this episode, but at the date of this recording, we were still waiting
Liz Cavell: Before we move on to the next case. One of the things that I thought as we were reviewing the actual opinions in these cases to get ready for today, that I remembered that in the panel decision from the Fifth Circuit that Rebecca was just quoting from, it was unanimous, all three judges. But one of the judges wrote separately a concurring opinion. And one of the things that I really appreciated about that separate writing was that that judge was teasing out that Louisiana is mistakenly or overly relying on Kennedy that this judge does not view Kennedy as having this sweeping effect on Establishment Clause jurisprudence that the states, Louisiana in this case, but that the states passing these laws are relying on. And one of the things the judge points out is Kennedy, this is a quote Kennedy turned not on state action, but on whether Coach Kennedy's personal post-game prayers were protected private speech.
And I think that's a really important thing. It gets confusing talking about Kennedy because of a lot of the changing facts over the course of the litigation and what the case actually turned on. But it's true that the Supreme Court's ruling was more focused on Coach Kennedy's protected private speech and finding that actually his prayers weren't government speech. And so the district did wrong by him in terms of his free exercise, his constitutional rights. So it's a mistake to rely on Kennedy for this sweeping annihilation of all of the principles that restrict government action when it comes to violating the Establishment Clause. And I really appreciated just the judge who wrote a concurring opinion to sort of tease that out.
Rebecca Markert: So as we're waiting for that decision, let's travel over to Arkansas. Arkansas along with Texas was one of the two states that passed a state law this year requiring the posting of the Ten Commandments. In Arkansas, the law is known as Act 573, and it mandates that public schools "prominently display" the commandments in a "conspicuous place" in every classroom and public library in Arkansas. So this law applies to K through 12 schools again and in higher education institutions and seemingly every public building or facility in the state maintained by taxpayer funds. And we're going to focus just on the postings in K through 12 schools. This state law does not explicitly limit the posters to just having the Ten Commandments, but it also doesn't authorize other texts to be on the poster or displayed with the poster as we saw in Louisiana.
Liz Cavell: Right. And again, the obvious import of the law is that the Ten Commandments shall be on display everywhere.
Rebecca Markert: Exactly. So the case that we filed is known as Stinson v. Fayetteville School District. Again with our partners, ACLU, ACLU of Arkansas, FFRF, and the law firm Simpson Thatcher. We filed this lawsuit on behalf of seven Arkansas families with children in the public schools. Again, a multi-faith group of plaintiffs. We have Jewish families, Unitarian Universalist families, atheists, non-religious, and one humanist who follows Native American spiritual traditions. So altogether there are nine parents and 14 kids. So again, another really big group of people coming together to challenge this law in Arkansas. Again, another brave group of plaintiffs going against this state law. This case was filed on June 11th this year in the district court in western Arkansas. And like in Louisiana, we requested both a preliminary and permanent injunction against the law.
Liz Cavell: And so in this case, the district court actually held a hearing on the preliminary injunction. That was on July 18th, and then the court ruled on the preliminary injunction motion on August 4th. That was the day before the law would have gone into effect. The court did hold that the law was plainly unconstitutional, and the court did issue a preliminary injunction against its enforcement. So it law is enjoined from being implemented in the schools while this litigation continues. And again, a strong opinion by the district court judge basically evaluating the likelihood of success on the merits of an Establishment Clause claim when this government action is so plainly, religiously coercive. So some quotes from Judge Brooks in the district court opinion, they said "students receiving instruction in algebra, physics, engineering, accounting, computer science, woodworking, fashion design, and German will do so in classrooms that prominently display the King James version of the Ten Commandments. Every day from kindergarten to 12th grade, children will be confronted with these commandments or face civil penalties for missing school." So I like that framing too because again, it's highlighting how coercive the presence, the state mandated presence of the Ten Commandments is, but also the inherently coercive environment that is public schools. In other words, our kids are required to be there.
Rebecca Markert: Right? Right. They're mandatory attendance laws. Exactly. And I like how he gave that long list of all the different classes. It's very similar to what you were just saying too, whether they go to art, they go to gym here, he expanded that, certainly not an exhaustive list, but
Liz Cavell: I love that he threw German in there. That felt very pointed at you, Rebecca.
Rebecca Markert: I know, right?
Liz Cavell: Rebecca speaks German.
Rebecca Markert: I do. I lived in Germany for a while, but yeah, so one of the few people in our country who opted to take German, but a very useful language. So one of my favorite, favorite quotes from this opinion is what I would've liked to answer at the top of this show. The judge writes, why would Arkansas pass an obviously unconstitutional law? And I love that because that's kind of how we set up this episode. Right? Great question. Wait, we have all this precedent. It's clear that this is unconstitutional. Why they do that? Well, here is the answer from Judge Brooks. He writes, "most likely because the state is part of a coordinated strategy among several states to inject Christian religious doctrine into public school classrooms."
Liz Cavell: Well, he said it, not us. I do appreciate that level of frankness. And it is relevant to the analysis of the legislative action here, which is that it is plainly aimed at religious coercion, right at pushing Christian religious doctrine through the machinery of the public education system. One more quote from the opinion that we pulled out as meaningful goes to the historical practices analysis. And here's the quote, with respect to the first part of the historical practices and understandings test, Act 573's mandate is incompatible with the founding father's conception of religious liberty. I concur with that history analysis, just taking head on the argument and the alternative that okay, even if Stone versus Graham is somehow overturned without the Supreme Court having done it, or if the Supreme Court were to do it, these laws do not pass muster under Kennedy. They are plainly unconstitutional, even with a historical or historical tradition analysis of the founding era.
Rebecca Markert: With these cases, you'll see a bit of a pattern. So after we received the preliminary injunction, we again sent a letter to every Arkansas school district, urging them not to display the Ten Commandments. And I have a quote from the letter that we sent to these school districts. We wrote, "even though your district is not a party to the ongoing lawsuit, all school districts have an independent obligation to respect students' and families' constitutional rights. Because the US Constitution supersedes state law, public school officials may not comply with Act 573."
Liz Cavell: Again addressing the question of whether because these injunctions only are binding on the parties, ergo the actual school districts that plaintiffs attend this is trying to address the argument that somehow all the other public school districts in the state should feel free to implement this law that a federal judge has found to be plainly unconstitutional. So that's what we're working with.
Rebecca Markert: Another interesting aspect to these cases is that we continue to hear from families across these states who want to join and challenge these state laws. And in late August this year, our coalition amended the complaint to add more plaintiffs in an additional school district in the Arkansas case, the TRO was granted against that school district recently as well.
Liz Cavell: Right. And of course, in this case as well, the Arkansas Attorney General has filed an appeal to the eighth circuit being the Court of Appeals with jurisdiction over Arkansas. So this case too will inevitably be reviewed by an Eighth Circuit panel and we'll see what happens there. So let's move on. Last, but definitely not least, the Texas law that requires the Ten Commandments to be displayed in public schools, S.B. 10, this law requires every public, elementary and secondary school in Texas to display a poster or framed copy of the Ten Commandments in a conspicuous place in each classroom.
Rebecca Markert: Right?
Liz Cavell: Yikes. So the language of the bill mandates the size of the display can be no smaller than 16 inches by 20 inches, and the Commandments have to be set forth in a size and typeface that is legible to a person with average vision from anywhere in the classroom. Oh boy. That was signed into law by Governor Abbott on June 20th, 2025.
Rebecca Markert: And the fun fact is he signed that into law the same day that we got the Fifth Circuit opinion in the Louisiana case, but he did not announce that he had signed it into law until the next day.
Liz Cavell: Yeah. Can really only have one big news item a day on Ten Commandments in public schools. So again, the coalition lawsuit challenging Texas's, S.B. 10 was filed pretty soon after the law was signed. So that case is known as Rabbi Nathan versus Alamo Heights Independent School District, and that was filed in the Western District of Texas on July 2nd.
Rebecca Markert: And again, we have 16 families from various faiths, 22 parents, 27 kids meaning 49 plaintiffs altogether. It's amazing. Six of the parents are faith leaders, three are Christian ministers and two are rabbis and a Jewish cantor. We have a diversity of faiths for the plaintiffs. There are Christians including Baptist and Presbyterian. We have Jewish plaintiffs, Hindu, Unitarian Universalists, and non-religious and atheists as part of this lawsuit.
Liz Cavell: And again, the lawsuit claims that the law SB 10 violates the Establishment Clause of the US Constitution and it also violates the free exercise clause.
Rebecca Markert: Again, we asked for preliminary injunction, and in this case there was also a hearing that lasted for two days in the mid-August, and the court did issue a preliminary injunction preventing the school districts from displaying the Ten Commandments on August 20th.
Liz Cavell: This is August 20th, so this is after the Fifth Circuit has already ruled on the Louisiana Ten Commandments law, preliminary injunction. So with the benefit of that opinion, the district court judge here, Judge Biery wrote that Texas's SB 10 is plainly unconstitutional and again, citing Stone v. Graham as good law. Some quotes from that opinion, Rebecca.
Rebecca Markert: He writes, "the displays are likely to pressure the child plaintiffs into religious observance, meditation on veneration and adoption of the state's favored religious scripture and into suppressing expression of their own religious or non-religious background and beliefs while at school."
Liz Cavell: A very important point to raise, which is alluding to sort of the free exercise rights of students who have come from different faith backgrounds or no faith backgrounds to actually express or in any way talk about their own religious identity. Because obviously when the state is prescribing the favored religious doctrine, that has a chilling effect on the religious expression of other kids, which it seems like many people are very preoccupied with. So you would think that that would hold sway with some proponents of these laws. I appreciate Judge Biery weaving that into the discussion of rights, which is like the chilling effect that this has on students to be their whole religious identities at school.
Rebecca Markert: Right, right. He also called out that there are 33% of Texans who did not adhere to any Christian denomination. So that was also very interesting. We are going to link all of these opinions in the show notes, and I know that's a lot to read, loyal listeners, but if you just want to pick one, I would highly recommend this one as the one to take a look at. It's interesting. It goes through a lot of history, and I don't think you'll be disappointed.
Liz Cavell: It's also the most recent, so it has the benefit of some of the other opinions that had already happened.
Rebecca Markert: That's right. And again, the coalition sent another letter to every Texas school district urging them not to display the Ten Commandments. Again, saying, even if you weren't a party to this litigation, you're bound by the US Constitution and you can't constitutionally comply with this state law. The Texas Attorney General Ken Paxton, dear friend of the pod, has appealed this decision, filed a petition for an initial hearing at the Fifth Circuit on September 2nd. So we are waiting to hear about that as well. He also put out a statement claiming that all other Texas districts should obey SB 10 and put the displays up.
Liz Cavell: And importantly, some Texas school districts are heeding his guidance and going ahead and despite the injunction in our case, they're putting Ten Commandments displays up in compliance with S.B. 10. And that has led to not only other plaintiffs in the districts that we already represent, but people all over this state who are actually being impacted going, oh my gosh, my kid came home from school today and the district has put Ten Commandments in every single classroom. How do we do something about it? Can we be part of the lawsuit? So there's been, I think a lot of affected families in Texas that are actually seeing what it looks like for these laws to be put into effect by public school districts. So actually late breaking news yesterday, we're recording this September 23rd. Yesterday, on September 22nd, our coalition filed another lawsuit in Texas because there are school districts now who either have already or have indicated that they will still be posting the Ten Commandments in their classrooms. So we have an additional 15 families challenging this law in a dozen different school districts in a brand new lawsuit that we have filed in Texas. And that case is known as Cribbs Ringer v. Comal Independent School District. Again, all these cases will be linked in the show notes, and again, you can follow along because of course that case was filed yesterday as we're recording this. But I'm sure that there will be updates by the time you're listening to this. And
Rebecca Markert: Again, these are all current cases. Everything that we talked about today might be slightly changed by the time this podcast enters your ears. So pay attention to our organization's websites where we post updates on all of these cases. Both Americans United and FFRF have case libraries where you can read all of the opinions and get a summary of where these cases are. And of course, we here on We Descent will update you when we get further decisions. But we really wanted to go through the history, give you that 101 on the law surrounding Ten Commandments displays in public schools. We hope that we were highlighting also that we have been winning in these courts and in these times where it feels like there is a lot of loss and despair. We are finding reason in our federal courts and we've gotten some good decisions from judges in the south,
Liz Cavell: And the law exists, right? It's important that we, I think, take an episode to kind of highlight Stone v. Graham as a strong Supreme Court precedent that has stood for decades and been reaffirmed by the Supreme Court repeatedly and is not overturned by anything the current court has done. And so I think it's heartening to see the lower federal courts really following the letter of the law when it comes to the body of Establishment Clause jurisprudence that has been built up to this point and has not been overruled by this court, despite its hostility towards Establishment Clause claims.
Rebecca Markert: So that is it for today's episode. I'm Rebecca Markert.
Liz Cavell: And I'm Liz Cavell. If you haven't already, please follow us on our socials Facebook, Instagram, Bluesky, and X. And please also remember to let us know how you like the show by leaving us a review. You can also find us at we-dissent.org.
Rebecca Markert: Thanks for listening. We Dissent is a joint production of the Freedom From Religion Foundation and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
