The Fifth Circuit Court of Appeals has handed religious liberty advocates their most expansive classroom victory in a generation, upholding a Texas law that requires public schools to display the Ten Commandments in all classrooms by September 1, 2026. In a closely divided 9-8 en banc decision issued April 21, the court reversed a district judge’s order blocking the law, setting in motion an almost certain Supreme Court appeal that will define how far First Amendment doctrine permits religious content in public education.

The Texas law mandates posters displaying the Ten Commandments in a format no smaller than 11 by 14 inches. The American Civil Liberties Union challenged it immediately, arguing the requirement violates the Establishment Clause, which prohibits laws “respecting an establishment of religion.” But the Fifth Circuit majority found the law constitutional, reasoning that the Ten Commandments carry historical and educational weight beyond their strictly religious significance.

This decision is not isolated. The Fifth Circuit issued a similar ruling on Louisiana’s Ten Commandments display law in February 2026, establishing a pattern. Simultaneously, the Second Circuit (covering New York and Connecticut) and the Ninth Circuit (covering California, Washington, and other western states) have reached opposite conclusions in recent years, holding that such displays violate the Establishment Clause. This creates a clean circuit split, the kind of doctrinal disagreement the Supreme Court typically resolves.

The Doctrine at Issue

To understand the stakes, one must grasp how Establishment Clause doctrine has shifted. For nearly 50 years, courts applied the “Lemon test,” adopted in Lemon v. Kurtzman (1971), which required government action to have a secular purpose, a primary secular effect, and no excessive government entanglement with religion. Under Lemon, the Ten Commandments classroom display at issue here would fail: its primary purpose is religious, and schools could not credibly claim the purpose is merely historical or educational without explicitly acknowledging the religious nature of the text.

In Kennedy v. Bremerton School District (2022), the Supreme Court did not formally overrule Lemon, but it sidelined it. Chief Justice John Roberts, writing for a six-justice majority, replaced the Lemon framework with a new test: courts should ask whether a challenged practice has “historical pedigree” and whether it coerces religious participation. This shift gave religious practitioners far broader latitude. Kennedy involved a high school football coach’s voluntary prayer at midfield; the Court held that the coach’s speech, even if religiously motivated, could not be restricted merely because it might influence students.

The Fifth Circuit appears to have internalized Kennedy’s permissiveness. The majority opinion focuses on whether the Ten Commandments, read as a historical and educational artifact, carry secular purpose. Texas’s legislature framed the law as promoting civic understanding of a foundational text in Western legal tradition. The Fifth Circuit’s majority accepted this framing, distinguishing the Commandments as part of American constitutional heritage, not a vehicle for religious indoctrination.

The Analog in History: Stone v. Graham

The closest historical parallel is Stone v. Graham (1980), when the Supreme Court struck down a Kentucky law requiring Ten Commandments displays in every public school classroom. Stone involved a nearly identical statute, also requiring the Commandments be posted in a specific format. The Court held, in a summary opinion (no oral arguments), that the law violated the Establishment Clause because its purpose was “plainly religious” and any secular purpose was “essentially deficient.”

The Fifth Circuit’s 2026 decision reads Stone as an outdated application of Lemon. The majority argues that Kennedy’s framework, which respects historical traditions and avoids strict scrutiny of religious purpose, would permit Stone’s result to be reversed if the case arose today. This is not speculation: it reflects how much Establishment Clause doctrine has contracted since 2022.

The Circuit Split

The Second and Ninth Circuits have not followed the Fifth’s lead. In recent cases, both courts held that Ten Commandments displays in public schools remain unconstitutional under the Establishment Clause, even after Kennedy. The Second Circuit reasoned that Kennedy’s “historical pedigree” language does not extend to displays whose primary effect is religious. The Ninth Circuit emphasized that Kennedy involved voluntary student speech, not mandatory classroom displays, and that coercion analysis should account for the pressures unique to public schools, where attendance is compulsory.

This disagreement creates the doctrinal fault line SCOTUS will likely resolve. If the Court affirms the Fifth Circuit, Establishment Clause doctrine will narrow substantially; public schools nationwide could be required to display religious texts if legislatures frame them as historical. If the Court reverses the Fifth, it will signal that Kennedy does not extend to coercive religious displays, and schools retain discretion to exclude them.

Path to SCOTUS

The ACLU has announced plans to petition the Supreme Court for review. Cert is not guaranteed, but this case has several factors that favor a grant. First, the circuit split is stark and clean: 5th Circuit says constitutional, 2nd and 9th say unconstitutional. Second, the case affects millions of public school students. Third, the issue sits directly at the intersection of Kennedy v. Bremerton and the older Establishment Clause precedents, raising a direct question about Kennedy’s scope. Fourth, no Justice has suggested indifference to religious liberty questions, making it a case the conservative majority may welcome.

If cert is granted, oral arguments would likely occur in the 2026-2027 term, with a decision expected by June 2027. The timeline is compressed because the Texas law takes effect this September; schools will face immediate compliance questions regardless of ongoing litigation.

What the Ruling Means

For schools in the Fifth Circuit (Texas, Louisiana, Mississippi), the immediate effect is clear: Ten Commandments displays must be installed or kept in place. For schools nationwide, the ruling signals that the Fifth Circuit, which has emerged as the most powerful conservative appellate court, views Establishment Clause doctrine as substantially narrowed. State legislatures and attorneys general in conservative-led states will likely copy Texas’s approach, testing whether other circuits adopt the Fifth’s reasoning.

For legal doctrine, the Fifth Circuit’s opinion reveals how much judicial interpretation of the Establishment Clause has shifted since Kennedy. The majority does not read Kennedy as merely deferring to religious liberty in specific contexts; it reads Kennedy as inverting the burden: religious speech and displays should be presumed constitutional unless they are coercive or have no reasonable secular purpose. This is a fundamental doctrinal realignment.

The Supreme Court’s response will determine whether this realignment stands or whether Kennedy’s scope is limited to a narrower context. Until then, the circuit split will incite school district uncertainty and likely multiple state-level experiments with religious displays, all awaiting SCOTUS’s clarification of the constitutional boundaries.