The Supreme Court and the Ten Commandments
Litigation over the Ten Commandments did not reach the Supreme Court until Stone v. Graham in 1980, when the justices invalidated a Kentucky law mandating their being displayed in classrooms as violating the First Amendment’s Establishment Clause for lacking a secular educational purpose. The Court rejected a small notation on posters describing the Commandments as the “fundamental legal code of Western Civilization and the Common Law of the United States” as insufficient because the displays were “plainly religious in nature.”
A quarter of a century later, on the same day in 2005, the Supreme Court resolved two non-school cases about the Ten Commandments. McCreary County v. American Civil Liberties Union of Kentucky concerned nine framed documents, including the Ten Commandments, Magna Carta, and Bill of Rights, that officials had recently posted at two county courthouses. Reviewing only one of the disputes, the Justices invalidated the display in McCreary County for violating the Establishment Clause primarily for lacking a secular legislative purpose.
Conversely, in Van Orden v. Perry, the Supreme Court allowed a display, including the Ten Commandments, to remain on the grounds of the Texas Capitol. The justices posited that because the display was erected in 1961 using private funds for a passive display of the Commandments as one of 17 monuments and 21 historical markers spread out over 22 acres, it was constitutionally acceptable.
Under House Bill 71, which became law in Louisiana in 2024, officials in all public schools, colleges, and universities must display framed copies of the Ten Commandments of at least 11" x 14" in dimension, in a large, easily readable font, in all classrooms. The law allows, but does not require, officials to use state funds to purchase copies of the Commandments; officials can also use donated funds to buy displays or accept donated copies.
However, in Roake v. Brumley, on February 20, 2026, in a brief, less than eight-page unsigned per curiam, “by the court” order, an en banc panel consisting of all of its active judges reversed in upholding the statute’s constitutionality by a vote of 11–7, with one concurrence and four dissents totaling almost 30 pages. The court explained that:
"Asking us to declare — here and now, and in the abstract — that every possible H.B. 71 display would violate the Establishment Clause would require precisely what [the Supreme Court] ... forbids: the substitution of speculation for adjudication. It would oblige us to hypothesize an open-ended range of possible classroom displays and then assess each under a context-sensitive standard that depends on facts not yet developed and, indeed, not yet knowable. …. It is not judging; it is guessing."
Adding that “nothing in today’s narrow holding prevents future as-applied challenges once the statute is implemented and a concrete factual record exists,” the court left the door open to further litigation over H.B. 71 that is likely to follow.
The dissenting judges agreed, for various reasons, that H.B. 71 was ready for review and that it violated the Religion Clauses by impermissibly singling out one religious perspective.
Controversy over the Ten Commandments continues to raise concerns over whether religion has a place in public schools. Regardless of whether one views the Commandments as religious/ moral teachings or ancient documents of historical/legal importance, they undeniably played a major part in the development of the United States and other parts of the world.
Given their tripartite secular, religious, and moral significance, the challenge for SBOs, their boards, and teams is to find a possible spot for the Ten Commandments in schools while trying to avoid litigation based on potentially costly claims of violating the First Amendment Religion Clauses. Because disagreements over whether the Ten Commandments can, or should be, posted and discussed in public schools are unlikely to end any time soon, district leaders should articulate clear, balanced policies if they allow their presence in curricular and other contexts, such as public displays. If SBOs and their teams can devise such board policies, then the Commandments may fit in as one element when teaching about tolerance and understanding toward all beliefs.
Looking to past litigation for guidance, Justice Brennan’s concurrence in 1963’s
Abington v. Schempp and Murray v. Curlett, cases from Pennsylvania and Maryland, respectively, banning prayer and Bible reading in public schools prior to the start of classes, are instructive. Based on Brennan’s statement, discussions of the Ten Commandments are likely permissible in classes on the development of legal codes throughout the world or about religions in global studies or culture classes, accompanied by the use of posters displaying the key teachings of major religious groups.
Clearly, there is a constitutional dictate to avoid permitting one religious tradition to dominate in American public schools and wider society.
More specifically, displays of the Commandments and other religious statements are probably permissible because Brennan noted that the First Amendment “plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history. Indeed, whether the Bible is involved, it would be impossible to teach meaningfully many subjects in the social sciences or the humanities without some mention of religion.”
Clearly, there is a constitutional dictate to avoid permitting one religious tradition to dominate in American public schools and wider society. Yet, in interpreting the First Amendment, the courts, in particular, must weigh their words carefully to avoid the risk of sending the message that religion has no place in American society.
The way in which the courts, legislatures, and SBOs, their boards, and teams, take steps to safeguard the faith-based rights of both the majority and minority, in schools and elsewhere, will play a major role in shaping the future of the United States as a Nation that has historically valued religious freedom in public life.