A far-right court allowed the Ten Commandments in every Texas classroom—in direct defiance of SCOTUS.

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On Tuesday, the nation’s most reactionary appeals court allowed Texas to install the King James version of the Ten Commandments in every public school classroom. By a 9–8 vote, the 5th U.S. Circuit Court of Appeals ruled that Texas did not violate the First Amendment by exposing students to the state’s chosen scripture all day, every day, gutting the constitutional separation of church and state in the process. What’s most remarkable about the decision, though, is not its support for theocracy, but its direct defiance of the Supreme Court. In 1980, justices struck down a law virtually identical to Texas’, forbidding states from placing the Ten Commandments in public school classrooms. By flouting this precedent, the 5th Circuit effectively went rogue, daring the Supreme Court to check its brazen disobedience. SCOTUS’ conservative supermajority may be tempted to bless this ruling in light of its own rulings that have steadily allowed religion to encroach on public education. But doing so would come at a steep cost: imperiling its own authority to say what the law is.

Tuesday’s decision in Nathan v. Alamo Heights is the latest chapter in red states’ quest to put Christianity back in their public schools. So far, Texas, Louisiana, and Arkansas have enacted laws requiring prominent display of the Ten Commandments in every classroom, with several more states poised to follow suit. Republican lawmakers crafted these statutes to test whether today’s Supreme Court will continue to shield students from sectarian indoctrination. For decades, the court held that Christianity in the classroom violated the First Amendment’s establishment clause, which bars the government from promoting or endorsing religion. It enforced this principle with extra vigilance in public schools, where children, as a captive audience, are uniquely susceptible to religious coercion.

In 1980’s Stone v. Graham, the justices squarely addressed a Kentucky law that, like Texas’, required the Ten Commandments to be posted in every public school classroom. They found the case so straightforward that they disposed of it summarily, without full briefing or oral argument. Kentucky’s goal, the court held, “is plainly religious in nature,” and the law’s likely effect would be “to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” Because it lacked any secular purpose, and would coerce students into religious observation, the statute obviously violated the establishment clause.

So how did the 5th Circuit justify upholding a law that’s basically identical to Kentucky’s? The Supreme Court, after all, has never overruled Stone. But in 2022’s Kennedy v. Bremerton, the conservative supermajority did say that the court had “long ago abandoned” a different establishment clause decision, Lemon v. Kurtzman. On Tuesday, the 5th Circuit reasoned that Stone cited Lemon, and Lemon had been “abandoned,” so it was free to disregard Stone altogether. As the majority put it: “With Lemon extracted, there is nothing left of Stone.”

There is a major problem with this bold assertion: The Supreme Court has instructed lower courts never to assume that a precedent has been silently overruled by later decisions that seem to conflict with it. Just three years ago, SCOTUS scolded a lower court for doing exactly that. It declared that if a Supreme Court precedent “has direct application in a case,” the lower court must “follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.” That’s true, SCOTUS explained, even if the precedent is in tension with “some other line of decisions,” or appears to have been “implicitly overruled” by a more recent case. Binding precedent still binds the lower courts, unless and until SCOTUS says otherwise.

The 5th Circuit defied this command on Tuesday, and its excuse for doing so was rice-paper-thin. The majority insisted that Kennedy overruled not just Lemon but every case that relied upon it. Kennedy, though, did not even formally overrule Lemon. It merely stated that, as a descriptive matter, the court no longer applies it. Nor did the Supreme Court in Kennedy purport to overturn every decision that relied on Lemon; to the contrary, it expressly acknowledged and distinguished several such cases as good law. Even if Kennedy did kill off Lemon, though, it does not follow that every decision built on Lemon must fall, too. Many of these rulings—including Stone itself—wove Lemon together with other First Amendment principles, like the prohibition against religious coercion in public education. These decisions may well stand on their own, and lower courts have no license to jump the gun and declare them “implicitly overruled.”

In ignoring precedent, the 5th Circuit has put Texas students and parents in a difficult position. Texas is one of the most diverse states in the country. But now, every public school in Texas’ multicultural society must prominently display the tenets of one religion (Christianity). Imagine a Buddhist, Jewish, or Muslim parent who enrolls their child in public school and objects to this display. That parent now must decide to either remove their child to some private school, if they can afford it, or instruct their child to ignore a classroom display that goes against their beliefs.

A parent’s prerogative to control their child’s moral education is a right the Supreme Court has recently claimed to care a lot about. In last term’s decision in Mahmoud v. Taylor, the Supreme Court struck down a Maryland public school lesson plan under the free exercise clause of the First Amendment. This curriculum involved storybooks featuring queer and gender-nonconforming characters. The conservative supermajority ruled that parents who felt morally opposed to LGBTQ+ people have a First Amendment right to shield their children from queerness by opting out of those lesson plans. Even though this was a public school environment that’s supposed to teach children about a society’s wide range of identities, the mere presence of queer people was deemed to be so insulting that the Supreme Court declared parents must be allowed to remove their children from the classroom.

A few months later, the Supreme Court took their love for parental rights even further in a case about gender transition and pronouns in California schools, Mirabelli v. Bonta. The state had allowed public school students to use their preferred pronouns and prevented educators from outing transgender students to their parents. The Supreme Court found this anti-outing policy unconstitutional, granting parents a religious exemption that forced schools to disclose their children’s gender identity even without the child’s permission. A trans student’s right to feel safe and welcome at school, the court held 6–3, had to yield to a parent’s right to oppose their transgender identity.

Mark Joseph Stern

The 5th Circuit Is Furious That the Supreme Court Put It in Timeout

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If it’s true that parental rights are so important, then the 5th Circuit has to be wrong in upholding the Texas Ten Commandments law. The court tried to downplay this point by saying that it is just a “poster” and therefore lacks any coercive effect. But posters exist in educational settings so that they can educate. This is not a photo of a kitten saying “Believe in yourself!” A reproduction of a major religious text is bound to have an impact on the classroom experience. What happens when the first student asks a question about that large poster on the wall? If the teacher answers in a manner that showcases approval of the Ten Commandments, won’t the student feel pressured to agree? Or what if the teacher tells the student, as the 5th Circuit suggests, to simply ignore the poster? Could the state then punish the teacher for showing “anti-Christian” bias? Ultimately, what the 5th Circuit misleadingly treats as a mere poster becomes an inroad for the government to impose beliefs on both students and teachers. As Texas Attorney General Ken Paxton put it himself: “The Ten Commandments have had a profound impact on our nation, and it’s important that students learn from them every single day.”

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The Supreme Court’s penchant for parental rights can’t be reconciled with the 5th Circuit’s blessing of a Christian religious display in schools. As the dissenters pointed out, parents who don’t want their children subjected to perhaps the most important symbol of a particular religion’s teachings must have the same rights as anti-trans parents. Of course, the court could just as easily ignore this contradiction in the same way it’s done in the past, by only turning the screws of judicial scrutiny tight when Christian values are at risk, and looking the other way when people of other faiths are mistreated.

The conservative supermajority may be inclined to do exactly that, especially given its ongoing infusion of Christianity into state education over the last decade. But rewarding the 5th Circuit would be a perilous invitation to further insubordination. If the supermajority blesses the 5th Circuit’s gambit here, it will invite every other lower court to disregard past rulings and dare the justices to call them out. Given how fast and loose the justices have played with their own precedent, it is no surprise that the 5th Circuit thinks it can get away with this challenge to SCOTUS’ supremacy. But a court that tolerates such defiance eventually forfeits the right to demand obedience.

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