The Texas Ten Commandments cert petition filed by the ACLU landed at the Supreme Court this week, opening what may be the most consequential Establishment Clause case in a generation. The question now is whether the Justices will take it, and whether the challengers should have wanted them to.
The Texas Law and the Fifth Circuit’s Razor-Thin Ruling
Texas Senate Bill 10, codified at Texas Education Code § 1.0041, requires every public elementary and secondary school to display a durable, state-selected version of the Ten Commandments in each classroom. Each copy must measure at least 16 inches wide and 20 inches tall, hung conspicuously so students can read it from anywhere in the room.
The en banc Fifth Circuit upheld S.B. 10 by a 9–8 majority, holding that the law does not on its face violate either the Establishment Clause or the Free Exercise Clause. That one-vote margin matters: the dissent was substantial, and the ruling has already generated friction with other circuits.
Texas is the third state in two years, after Louisiana and Arkansas, to pass such a requirement. Louisiana’s parallel effort has fared worse. A separate Fifth Circuit panel ruled in June that, although the precedent in Stone v. Graham had been undermined, overruling it was the Supreme Court’s prerogative alone. A subsequent unanimous Fifth Circuit decision then struck down Louisiana’s Ten Commandments statute as unconstitutional, upholding a federal district court’s preliminary injunction in Rev. Roake v. Brumley, as the ACLU confirmed. That outcome left Texas S.B. 10 as the only such law currently standing.
Texas Ten Commandments Cert Petition: Who Is Challenging, and on What Grounds
According to the ACLU of Texas, the petition consolidates two cases: Nathan v. Alamo Heights Independent School District and Cribbs Ringer v. Comal Independent School District. The families challenging the law attend 22 school districts across Texas and include Christians, Jews, Hindus, Baha’i, Unitarian Universalists, and those of no religion. They are represented by the ACLU of Texas, the ACLU, Americans United for Separation of Church and State, the Freedom From Religion Foundation, and pro bono counsel Simpson Thacher & Bartlett LLP.
Justice Samuel Alito had extended the filing deadline to this week, the National Constitution Center reported. The petition argues that the Fifth Circuit ‘flouted this Court’s binding precedents and gutted the religious freedom rights of public-school children and parents,’ urging the Court to act quickly given that ‘no Article III barriers exist, the Fifth Circuit having reached the merits in full in Nathan.’
The binding precedent at issue is Stone v. Graham (1980), in which the Supreme Court ruled 5–4 that a Kentucky statute requiring Ten Commandments displays in every public classroom violated the First Amendment’s Establishment Clause, finding the requirement had no secular legislative purpose and was plainly religious in nature, as Britannica records. The en banc Fifth Circuit’s ruling to uphold S.B. 10 amounts to a direct challenge to that precedent.
The strategic risk for the challengers is real. A conservative Fifth Circuit litigator told the author he was certain the ACLU would not seek certiorari precisely because the stakes are so high. Separationist groups face a court whose current composition is far more sympathetic to public religious expression than any court that has previously adjudicated this question. Kennedy v. Bremerton School District already narrowed the Establishment Clause in a school context; a broad ruling here could go further still.
The calculus at the Supreme Court is uncertain in several directions. The Court’s three liberal Justices may vote defensively to deny certiorari, calculating that leaving S.B. 10 in place across the Fifth Circuit is a lesser harm than a nationwide ruling that inters Stone v. Graham altogether. Whether the Chief Justice and Justice Barrett would then supply the four votes needed to grant is unclear. The conservative bloc may see an opportunity to extend the Fifth Circuit’s logic nationwide, but that grant could misfire if five Justices can be found to preserve Graham. As SCOTUSblog has noted, the Court has not ruled directly on Ten Commandments classroom displays since Stone itself.
The petition’s fate may hinge on whether four Justices believe the current Court is the right vehicle for the answer, or whether they would rather let the Fifth Circuit’s one-vote majority stand, for now, and wait for a cleaner case. Either way, with Louisiana’s statute struck down and Arkansas yet to face a final ruling, the Texas litigation has become the sole live test of whether Stone v. Graham survives the Roberts Court.
