The 5th U.S. Circuit Court of Appeals this week upheld Louisiana's law requiring the Ten Commandments to be displayed in public school classrooms, overruling a lower court that had blocked it. All 17 active judges on the circuit participated in the case. The challengers now have 90 days to appeal to the Supreme Court.
That timeline matters. If opponents take the case up, the justices could be weighing in on religious expression in public schools for the first time since the legal landscape shifted dramatically in 2022.
The ruling cut through the procedural games the plaintiffs tried to play. Parents challenging the law, backed by Americans United for Separation of Church and State, argued that H.B. 71's requirements were unconstitutional on their face, before a single poster went up in a single classroom. The court wasn't buying it.
"The parents (and the principal dissent) seek to sidestep this difficulty by framing the case as an attack on H.B. 71's minimum requirements alone. But an unripe challenge does not become ripe merely because a party asserts that the challenged action would be unlawful on any conceivable set of facts. The Supreme Court has squarely rejected that approach."
In other words: you can't strike down a law based on hypothetical harm before it's even been implemented. The court left open the possibility that another challenge could be brought once the posters are actually displayed in schools. But the preemptive block is gone.
Louisiana in 2024 became the first state to pass a law requiring the Ten Commandments to be displayed in classrooms in easily readable letters. It was an act of political courage in an era when most state legislatures wouldn't dare. The lower court moved quickly to freeze it. The Fifth Circuit just as decisively unfroze it, as The Hill reports.
To understand why this ruling landed the way it did, you have to understand what the Supreme Court did in 2022 with Kennedy v. Bremerton School District. That case involved a high school football coach who prayed at the 50-yard line after games. The Court ruled in his favor, and in doing so, demolished a half-century of anti-religious precedent.
Kelly Shackelford, president, CEO, and chief counsel at First Liberty Institute, explained the significance:
"Within that decision, there was this major precedent called the Lemon test and, in that case, they said Lemon, which had been the precedent for 50 years and had been cited over 7,000 times to kind of stop different types of religious expression in public — they overruled it. They threw it out. They said it wasn't good law. And so, what that does is that that opens up a whole lot of things that people don't realize are now totally protected by the Constitution."
Fifty years. Over 7,000 citations. The Lemon test was the go-to weapon for anyone who wanted to scrub religious expression from public life. It's gone now. And the legal establishment is still catching up to what that means.
Shackelford put it simply: "I just think these laws are going to be upheld now, after the Kennedy decision."
Louisiana isn't alone. Texas has a similar law, and the Fifth Circuit heard arguments for both states' cases on the same day. The court has not yet ruled on Texas. Arkansas is fighting its own battle at the U.S. 8th Circuit Court of Appeals.
Joe Davis, senior counsel at Becket and an attorney representing Louisiana, laid out what the ruling means for those cases:
"The 5th Circuit's ruling is going to be binding precedent on the Texas case, for sure, since that case also arises in the 5th Circuit. The 8th Circuit doesn't have to follow the 5th Circuit, but I would expect it to, given that the opinion has a great deal of persuasive value, so I do think it's going to be quite relevant in those cases."
On the Texas case specifically, Davis acknowledged the court could take a different procedural route:
"Now, obviously, the court hasn't decided the Texas case yet, even though they were argued on the same day. So, it remains to be seen which approach they take with that case. Maybe they reach the merits of the issue and decide whether the Texas law is constitutional or not, rather than resolving it solely on jurisdictional grounds. I think we just have to see."
If the Fifth Circuit reaches the merits in Texas, that would provide even firmer ground for these laws. Either way, the Louisiana decision creates a framework that's hard for other circuits to ignore.
Rachel Laser, president and CEO of Americans United for Separation of Church and State, offered a notably cautious response. "We're certainly going to continue fighting for the religious freedom of Louisiana parents and children, but the specific next steps are still under discussion," she said.
Note the framing. "Religious freedom" now means freedom from encountering a foundational text of Western civilization on a classroom wall. This is the same organization that would celebrate a drag queen story hour in a public library as free expression without blinking. The Ten Commandments, a document whose legal principles are literally carved into the Supreme Court building itself, is apparently the bridge too far.
The challengers face a genuine strategic dilemma. Appealing to the Supreme Court means rolling the dice with a Court that just torched the Lemon test three years ago. A loss at the highest level wouldn't just settle Louisiana; it would greenlight similar laws nationwide. Sometimes the smarter move for the opposition is to not ask a question they might not like the answer to.
For decades, the legal default in America has been to treat any religious expression in public spaces as a constitutional crisis. A nativity scene on a courthouse lawn. A cross at a war memorial. A coach taking a knee after a football game. Every instance triggered the same reflexive litigation, the same ACLU press releases, the same assumption that the First Amendment's Establishment Clause was a one-way ratchet toward total secularism.
The Kennedy decision began reversing that default. The Fifth Circuit's Louisiana ruling is the next step. Religious charter schools were struck down by the Supreme Court last year, which shows the legal terrain is still contested. But the trajectory is clear.
Three states have now passed laws putting the Ten Commandments back in classrooms. The most powerful federal appeals court in conservative jurisprudence just backed the first one. The legal framework that kept these displays out of schools for a generation has been dismantled at its foundation.
The 90-day clock is ticking. Whatever the challengers decide, the ground beneath this debate has already shifted.