Originalist Judges Are Spitting On the Constitution and Think You Won’t Notice
A law in Texas requires every public school to display the Ten Commandments in every single classroom. No problem, says the Fifth Circuit.
In May 2025, Republicans in Texas passed a law that requires each individual classroom in all of the state’s 9,113 public schools to display a “durable poster or framed copy” of the Ten Commandments. To comply with the law, known as S.B. 10, copies must measure at least 16 inches wide by 20 inches tall, and teachers must display them in a “conspicuous” place. The bill also requires schools to use the Ten Commandments as they appear in the King James Version, which begin as follows: “I AM the LORD thy God. Thou shalt have no other gods before me.”
On Reddit, Texas teachers who felt understandably uncomfortable serving as conscripted clergy members began brainstorming strategies to try to minimize the law’s impact on their classroom environments. Perhaps in an effort to preempt malicious compliance, Attorney General Ken Paxton issued an advisory document clarifying that in order to pass legal muster, Ten Commandments displays must also use a font that is “clearly legible to a person of average vision from anywhere in the classroom.” Teachers planning to make creative use of Wingdings, in other words, would have to come up with something else.
On Etsy, enterprising sellers helpfully advertise copies of the Ten Commandments that meet the exacting parameters of S.B. 10. They look like this:
If you are a normal person, you probably perceive a tension between the requirements of S.B. 10 and the First Amendment’s prohibition against laws “respecting an establishment of religion.” But earlier this week, the Fifth Circuit Court of Appeals concluded that S.B. 10 is perfectly legal, actually, and that you would be an idiot for thinking anything different.
Writing for the majority in Nathan v. Alamo Heights Independent School District is Judge Kyle Duncan, who before Trump put him on the bench in 2018 was one of the legal profession’s more prominent right-wing culture warriors, specializing in cases that seek to vindicate the rights of Christians (especially conservative Christians) to ignore laws (especially antidiscrimination laws) they disagree with. In his opinion in Nathan, Duncan applies the Supreme Court’s recently invented “history and tradition” test to determine that the phrase “establishment of religion” only contemplates Founding-era laws that applied “pressure to engage in religious worship”—to attend a particular church, for example. Because S.B. 10 “does not compel any student to engage in formal religious exercise,” Duncan writes, it poses no constitutional issue.
Much of Duncan’s opinion consists of what he describes as his own “sketch” of the history of the First Amendment, which reads a lot like the work product of a conservative activist with a clear policy agenda and access to ChatGPT. Throughout, he emphasizes that although some people may have “serious religious disagreements” with S.B. 10, the law does not explicitly require those people to do anything. Students need not “recite” the Ten Commandments, or “adopt” them as their own, he says; if students “disagree” or “ignore” or “laugh at” them, he argues, S.B. 10 “imposes neither penalty nor sanction.”
In their complaint, the challengers also assert that S.B. 10 violates their First Amendment right to freely exercise their (non-Christian) religious beliefs, since, as they point out, the law subjects children to “scripture nearly every hour they are in school.” Yet Duncan breezily disposes of this problem, too: S.B. 10 “creates no religious curriculum designed to shape children’s beliefs,” he says, but instead requires only “a poster on a classroom wall”—no different than the bell schedule, the lunch menu, and the emergency evacuation plan, I guess.
Supporters of S.B. 10 were not shy about what they sought to accomplish: In his advisory bulletin, for example, Attorney General Paxton celebrated that the law would ensure that “Texas children see, each day, the timeless truths upon which our laws and liberties were built.” On the Texas House floor, one Republican lawmaker, Candy Noble, declared it “incumbent on all of us to follow God’s law,” and opined that “we would all be better off if we did.”
Again, Duncan made a name for himself in the conservative legal movement by litigating cases exactly like this one; he has spent his career making abundantly clear that he, too, believes Christianity is the One True Religion, both in this country and in general. But unlike Paxton or Noble, as a judge, Duncan now has the power to imbue Christianity with a sort of preferred legal status. He does not care if students find displays of the Ten Commandments to be “coercive,” because he, personally, hopes students feel coerced by the Ten Commandments. I suspect that if some extremely cool state legislature were to mandate clearly legible 16-by-20-inch displays of, say, the Quran’s Throne Verse in every public school classroom, Duncan would have little trouble deciding that such a law is “designed to shape children’s religious beliefs,” and would be proud to protect them from “pressure” to participate in a religion he does not like.
Nathan is almost certainly going to end up before the Supreme Court, whose members will once again treat this case as one that only an exhaustive examination of this country’s history and tradition can resolve. In the minds of originalists, as practiced by this six-justice conservative supermajority, it is only judges—only originalist judges, really—who are capable of doing the work of divining what a constitutional provision really means. The fact that this methodology inexorably leads to real-world results that align with Kyle Duncan’s policy preferences is just a coincidence, and in Kyle Duncan’s view, it would be very rude of you to point it out.
As I have written before, this is wrong. There is not a single correct way to interpret the Constitution, a jumble of aspirational vagaries, clumsy compromises, and hamfisted revisions that has frustrated lawmakers and baffled lawyers since ratification. Even if it were possible to determine what the Framers believed the First Amendment prohibited and protected in 1789, you are allowed to have an opinion about what the First Amendment prohibits and protects today, in 2026. Frankly, if anything, your opinion should matter more that theirs. Everyone who helped draft the Establishment Clause has been dead for centuries. All of them were white guys, all of them were Christians, and none of them were parents who had to send their kids to public schools in Texas.
You do not need to be a lawyer to understand that when the government mandates displays of a particular faith’s core tenets to some 5.5 million children, that law is an “establishment of religion” in any meaningful sense of the phrase. You do not need to be a historian to understand that by exposing impressionable children to a particular conception of God’s law in every classroom, five days a week, from their first day of kindergarten through the end of their senior year, S.B. 10 sends unambiguous messages about the correctness of that conception of God’s law, the illegitimacy of alternatives, and a student’s obligation to follow the rules hanging on the wall. Only a mind as sharp as Kyle Duncan’s could consider a list of things that are literally called “commandments” and conclude that there is nothing “coercive” about it.
For adherents, the beauty of originalism is that it ostensibly yields objectively correct answers to difficult legal questions. In reality, it allows nine federal judges to eyeball a mandatory classroom fixture beginning with “I AM the LORD thy God” and assert with a straight face that your freedoms of religion and from religion are as strong as they have ever been. This is the true purpose of originalism: When the Constitution does not say what conservatives wish it said, they can simply declare that the Constitution means and has always meant something else.
As always, you can find everything we publish at ballsandstrikes.org, or follow us on Bluesky at @ballsandstrikes.org. You can get in touch by emailing us at contact@ballsandstrikes.org. Thanks for reading.
This Week In Balls & Strikes
Oklahoma Republicans Are Trying to Give Themselves Total Power Over Judicial Nominations, Steve Kennedy
For decades, a state judicial nominating commission has maintained some semblance of balance in Oklahoma’s courts. Republicans are furious—and ready to make some changes.
Trump Is Asking the Supreme Court For More Help With His Anti-Immigrant Agenda, Madiba Dennie
Green card holders enjoy broad protections from removal under federal law. The administration is looking for ways around it.
John Roberts Is Always a Republican First, Jay Willis
In public, the chief justice loves talking about how the Supreme Court’s work is not political. Memos published by The New York Times show just how political the Supreme Court’s work actually is.
There Is Nothing “Qualified” About Qualified Immunity, Madiba Dennie
Once again, the Supreme Court twists itself into knots to extend legal protections to cops who kill.
This Week In Other Stuff We Appreciated
Your State-by-State Guide to the 2026 Supreme Court Elections, Daniel Nichanian, Bolts
More than 60 seats in 32 states are up for grabs this year. Here’s what you should know about them
What Happens When “Your Honor” Is a Robot?”, Elie Mystal, The Nation
Things that are bad, probably!
This Week In Obscure Photos of Supreme Court Justices On Getty Images
Every individual of a different religious belief, therefore, can have their "laws" posted, too, I imagine, if the First Amendment is still valid in a terrible state like Texas.
Not to mention that the original Hebrew is translated into the language used by England in 1611 (King James version). You know, when serfs did what they were told, witches were burned and one man was the absolute monarch. Sound familiar?