From, Craig Jackson, Professor of Law, Thurgood Marshall School of Law at Texas Southern University:
On Monday April 21, 2026 the Fifth Circuit finally did what many constitutional law observers, particularly of the various fraught Establishment Clause cases, expected—it confronted the demise of the so-called Lemon test’s standards for determining an establishment or preference for religion by the state in favor of an historical approach to state accommodation toward religion. In its opinion in Rabbi Nathan v. Alamo Heights Independent School District, the appellate court decided that a Texas law requiring the display of the Ten Commandments in classrooms did not violate the Establishment Clause. The court’s opinion was based on its claim that the seminal Supreme Court case on the issue, Stone v. Graham, 449 U.S 49 (1980), had lost its vitality (maybe even been overturned) in light of Kennedy v. Bremerton School District, 597 U.S. ___ (2022). In Bremerton, the Supreme Court discarded the controversial test from Lemon v. Kurtzman, 403 U.S. 602 (1971) leaving in limbo prior cases decided based on that test. So even though only the Supreme Court can overrule Supreme Court cases, the Fifth Circuit at least responded to the SCOTUS Bremerton decision by dismissing as irrelevant the one case on point, Stone v. Graham.
The decision also clears the way for a similar law in Louisiana to go forward with Ten Commandment displays in that state’s classrooms. The cases might appear to replicate the strategy of states that passed abortion restriction laws in order to go before the Supreme Court to get Roe v. Wade overturned (which turned out to be a successful strategy). However, where Roe v. Wade remained controversial throughout its lifetime, no decision had undermined its basic holding. In these Establishment Clause cases, Stone v. Graham’s reliance on the Lemon test to rule that displays of the Ten Commandments violated the Establishment Clause was seriously weakened the minute the Court ruled in Bremerton.
The matter will be taken up by the Supreme Court likely next term and unless five Justices believe that the Commandments in the classroom can be characterized as coercion, the Fifth Circuit’s opinion in Rabbi Nathan v. Alamo Heights Independent School District will be affirmed and Stone v. Graham will officially be laid to rest.
Ediberto Roman, Laura Cisneros, and I will discuss this along with the New York Times Shadow Docket expose’ and the rumored retirements of two of the more conservative Justices on the podcast, The Law y La Ley this weekend.