by Chris Gilbert, Thompson & Horton LLP

Last week, the en banc Fifth Circuit issued its Ten Commandments decision in Nathan v. Alamo Heights ISD, and ruled 9-8 that Senate Bill 10 (“SB10”) does not violate either the Establishment Clause or the Free Exercise Clause of the First Amendment.  The preliminary injunction issued by the lower court was vacated.  School districts in Texas must now comply with the requirements of SB 10 and post donated posters of the Ten Commandments in classrooms.

Because I am actively representing a couple Texas school districts in one of the other two big Ten Commandments cases, I won’t comment in detail on the decision – but I do think it raises the following questions which may lead to an appeal to the Supreme Court:

• Does the Fifth Circuit’s interpretation of Kennedy’s “historical practices and understandings” test, which seems to narrowly limit the “establishment of religion” to the creation of an official state church (and related issues), go further than the Supreme Court intended?
• Does the majority’s coercion analysis — “S.B. 10 does not compel any student to engage in formal religious exercise” – fail to account for Supreme Court cases that have recognized concerns about implicit coercion in the public schools (including Van Orden itself)?
• Did the Fifth Circuit err in refusing to really even consider the issue of “denominational discrimination” — e. whether the mandated language of the Ten Commandments poster required by SB 10 favors Protestant Christianity over other religions/denominations that also believe in the Ten Commandments?

As a ruling on the substantive merits, the Nathan case is substantially more likely to be appealed to the Supreme Court than the Louisiana Ten Commandments decision (Roake v. Brumley) – where the court ruled that the Louisiana statute left too many decisions to local school districts to be considered on an under-developed record.  Given the number of other cases in Texas that have been on hold waiting for this decision, I anticipate that we will find out if the Plaintiffs intend to appeal this decision sooner rather than later.