In 2022, the U.S. Supreme Court expressly abandoned the Lemon Test, which had been used by the Court to determine whether an Establishment Clause violation of the First Amendment of the U.S. Constitution existed, and replaced it with an analysis of history and tradition to make such determinations. The Fifth Circuit Court of Appeals has now applied the history and tradition standard to a Texas law regarding the display of the Ten Commandments at school holding such display is permissible.
On April 21, 2026, the Fifth Circuit Court of Appeals in Rabbi Nathan v. Alamo Heights Independent School District, upheld a Texas law requiring public schools to display posters of the Ten Commandments in classrooms. This is a notable change from the precedent established in Stone v. Graham, which explicitly prohibited such laws.
In 2025, the Texas Legislature passed Senate Bill 10 (SB10), requiring Texas public schools to display donated posters of the Ten Commandments in a visible space on classroom walls (Tex. Educ. Code Ann. § 1.0041).
Pursuant to SB10, a poster must:
- Include only the text of the Ten Commandments in a size and typeface that is legible from anywhere in the classroom in which the poster or framed copy is displayed; and
- be at least 16 inches wide and 20 inches tall.
The plaintiffs brought suit against Texas claiming that the law violates the Establishment Clause and the Free Exercise Clause of the First Amendment of the U.S. Constitution. More specifically, the plaintiffs claimed that the law was an “establishment of religion” and “burdens religious exercise by coercing their children to reverence the [Ten] Commandments.” Rabbi Nathan v. Alamo Heights Indp. Sch. Dist., No. 25-50695, 2026 WL 1078691 at *1 (5th Cir. Apr. 21, 2026).
Relying on Stone v. Graham, a U.S. Supreme Court case from 1980 with facts similar to this case, the plaintiffs asserted that a law requiring the Ten Commandments be posted in every classroom violates the Establishment Clause. The Fifth Circuit determined that the decision in Stone v. Graham was based entirely on the Lemon Test, which the U.S. Supreme Court expressly abandoned in 2022.
The Fifth Circuit stated that it had recognized the “demise” of the Lemon Test, and citing the U.S. Supreme Court’s decision in Kennedy, dismissed the plaintiffs’ argument, stating “[w]ithout Lemon, Stone disappears.” Rabbi Nathan at *8.
This case was heard en banc, before all seventeen active judges on the Fifth Circuit Court of Appeals. The majority opinion was cosigned (in part) by nine of the seventeen judges. Four of the judges authored dissents.
While this decision is not binding on the State of North Carolina, the Education Law Section is able to help public school units navigate the constantly evolving First Amendment landscape. For assistance, please contact Grace Pennerat at (919) 783-1153 or gpennerat@poynerspruill.com or Rachel Pender at (919) 713-3254 or rpender@poynerspruill.com.
