After Louisiana passed a law requiring the Ten Commandments in every public-school classroom, Texas and other states followed. Right on cue, activist groups like the ACLU are reaching for the same tired line they’ve been using for 50 years. These groups have sued, arguing there’s supposed to be a “wall of separation between church and state.” Lower courts bought it, striking the displays down as “plainly unconstitutional.”
Here’s the problem. That wall never existed. And the Fifth Circuit said so out loud this past April — upholding Texas’s law in a ruling the ACLU is now begging the Supreme Court to overturn with its brief filed this week.
Start with the guy who supposedly built the wall. In his second inaugural address, Thomas Jefferson asked God to guide the nation’s leaders. The same Jefferson who wrote about a “wall of separation” permitted religious services to be held inside the U.S. Capitol. He proposed a national seal showing God parting the Red Sea for Moses, with the motto “Rebellion to tyrants is obedience to God.” Does that sound like a man trying to scrub religion from public life?
Jefferson’s wall was never meant to keep God out of government. It was meant to keep government out of church governance.
For the first century and a half of this country, nobody thought a Ten Commandments display on public property was a constitutional crisis. Then, in 1971, the Supreme Court invented one. Lemon v. Kurtzman created a three-part “test” — secular purpose, no advancing religion, no “excessive entanglement” — that some judges then used as a weapon against anything that looked remotely religious. A nativity scene at a Missouri courthouse: gone. “Under God” in the Pledge: challenged. Graduation prayers: banned. A Ten Commandments display in Kentucky classrooms, brought to court in Stone v. Graham: torn down. That’s the precedent activists are still citing today like it’s gospel. They haven’t gotten the memo — the Supreme Court has been quietly killing Lemon for 20 years.
When the Court in 1993 unanimously held that a church could show family films on school grounds after school hours, Justice Scalia likened the Lemon test to a “ghoul in a late-night horror movie” that stalked the Court’s religious freedom jurisprudence. By 2005, Chief Justice Rehnquist observed that the Lemon test is “not useful” when the Court let a Ten Commandments monument stand at the Texas Capitol. Justice Alito tossed Lemon aside again in 2019 and let a nearly century-old memorial cross stand on public land in Maryland. And in 2022, after a Washington state school district fired a football coach for kneeling to pray on the field — a firing the lower court blessed using Lemon — the Supreme Court had finally had enough. The Court sided with the coach and buried the test for good. Just like it tore up decades of bad abortion law in Dobbs, this Court has been tearing up bad religious liberty law, one case at a time.
The Fifth Circuit is the first appeals court to actually get the memo. In Nathan v. Alamo Heights Independent School District, Judge Stuart Kyle Duncan wrote plainly that the Supreme Court “jettisoned Lemon some years ago” and that Texas’s classroom posters bear “none of the hallmarks of a founding-era establishment of religion.”
That’s the correct test, and it produces an obvious answer. Actual religious establishments taxed you to fund an official church, told you what to believe, and punished you if you didn’t comply. A poster on a wall does none of that. It doesn’t take your money, force you to pray, or silence anyone who disagrees. It’s a poster — one that reflects the moral code the Founders themselves treated as foundational, not forbidden.
Now the ACLU wants the Supreme Court to wipe that ruling out. The Court has two ways to shut this down for good, and either one works. The first is to deny cert and let the Fifth Circuit’s opinion stand as the law across Texas, Louisiana, and Mississippi full stop, no further discussion needed. The second is to take the case and affirm, settling the question for all 50 states: Lemon is dead everywhere, not just in the Fifth Circuit, and the analysis the lower court applied is the one every court should be using.
What the Justices shouldn’t do is dust off a discredited test to manufacture a controversy where none exists. No state has to hang the Ten Commandments in its classrooms. But it’s long past time for the Supreme Court to make one thing permanently clear: no state is forbidden from doing it either.
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Andrea Picciotti-Bayer is director of the Conscience Project.
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